National Distillers v. Guthrie, AS-341

Decision Date29 December 1983
Docket NumberNo. AS-341,AS-341
CourtFlorida District Court of Appeals
PartiesNATIONAL DISTILLERS and Aetna Casualty & Surety Co., Appellants, v. Richard GUTHRIE, Appellee.

F. Bradley Hassell, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellants.

Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.

WENTWORTH, Judge.

The employer and carrier (e/c) appeal an order entered April 1, 1983, awarding the currently employed claimant wage loss benefits for two months in which he received zero or reduced wages subsequent to a month in which his income greatly exceeded his compensation rate. We conclude that the causal relation issue is controlled by Regency Inn v. Johnson, 422 So.2d 870, 879 (Fla. 1st DCA 1982), and find no authority for the e/c's alternate theory, discussed more fully below.

Claimant was employed as a regional supervisor, earning an average weekly wage of $636.25, when he suffered a compensable accident in November 1979. After recovery claimant reactivated his real estate license and worked as a realtor. The e/c paid total wage loss benefits from the date of maximum medical improvement through October 1982. In November 1982, claimant earned a commission of $6,250.00 and did not file a wage loss claim for that month. In December claimant had no income, and in January 1983 he earned $1500. The e/c controverted the claims for wage loss benefits for December and January, and appeal the order awarding those benefits.

The e/c defended the claim in part on the ground that the claimant's reduction in wages for December and January was not caused by his accident but was the result of the "nature of the real estate business." However, it is clear that claimant suffered a change in employment status due to his industrial injury. He no longer holds the regular income job that he had with employer, and the e/c have never contended that claimant's attempt to work was not in good faith or that he should have sought other employment commensurate with his abilities. Instead, claimant's good faith attempt to earn a living is clear and uncontested. Therefore, under Regency Inn, supra, claimant's prima facie entitlement to properly computed wage loss benefits was established. 1

The e/c also argued that claimant's earnings for November and January should have been added and the sum averaged over the three month period in question. Application of the proposed formula in this case would have resulted in no entitlement to wage loss benefits for November through January. 2 Appellants contend that computation of wage loss on a strictly month by month basis, without consideration of a claimant's actual earnings over a period of time, may result in an inaccurate picture of a claimant's "earning capacity."

If we assume, as discussed infra, that no...

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6 cases
  • Cuccarollo v. Gulf Coast Bldg. Contractors, BK-88
    • United States
    • Court of Appeal of Florida (US)
    • October 14, 1986
    ...question. dissent because the injuries to those claimants were contributing factors in the wage-loss claims. National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1984); National Distillers v. Guthrie, 473 So.2d 806 (Fla. 1st DCA 1985), and Carpenters R.V. Service v. Eckert, 455 So.2d......
  • Witzky v. West Coast Duplicating & Claims Center, BM-290
    • United States
    • Court of Appeal of Florida (US)
    • March 10, 1987
    ...when a claimant is compensated by commissions. National Distillers v. Guthrie, 473 So.2d 806 (Fla. 1st DCA 1985), and 443 So.2d 354 (Fla. 1st DCA 1984), and Carpenters R.V. Service v. Eckert, 455 So.2d 590 (Fla. 1st DCA 1984). Consider, likewise, the difficulty in resolving, under present s......
  • National Distillers v. Guthrie, s. BD-232
    • United States
    • Court of Appeal of Florida (US)
    • August 8, 1985
    ...appealed an order that awarded claimant wage-loss benefits for two months under very similar circumstances. National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1983). In that case the wage-loss claim was defended in part on grounds that claimant's reduction in wages was not caused b......
  • Western Union Telegraph Co. v. Perri, BO-357
    • United States
    • Court of Appeal of Florida (US)
    • June 17, 1987
    ...earnings from post-injury good faith work as a realtor has been approved as a basis for wage loss benefits. See National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1984). In the present case the award of wage loss benefits is consistent with the above-cited authorities. The deputy w......
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