Ninia v. Southwest Bottlers

• Decision Date: 21 July 1989
• Docket Number: No. 88-1856,88-1856
• Parties: 14 Fla. L. Weekly 1747 Milton D. NINIA, Appellant, v. SOUTHWEST BOTTLERS and Liberty Mutual Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 966

547 So.2d 966

14 Fla. L. Weekly 1747

Milton D. NINIA, Appellant, v. SOUTHWEST BOTTLERS and Liberty Mutual Insurance Company, Appellees.

No. 88-1856.

District Court of Appeal of Florida First District.

July 21, 1989.

Peter C. Burkert, of Burkert & Hart, P.A., Fort Myers, for appellant.

Randal H. Thomas, of Henderson, Franklin, Starnes and Holt, P.A., Fort Myers, for appellees.

JOANOS, Judge.

Claimant in this workers' compensation case appeals the deputy commissioner's denial of his claim for temporary partial disability or wage loss benefits. The sole issue presented for our consideration is whether the deputy commissioner erred in determining that no benefits were due. We affirm in part, and reverse in part.

On September 20, 1986, claimant suffered a compensable low back injury in the course of his employment as a route salesman for Southwest Bottlers, a Pepsi Cola distributor. Claimant's work experience has been limited, for the most part, to various aspects of the soft drink business. When he started working for Southwest Bottlers in April 1985, his first work assignment was loading trucks. He then worked as a checker, and was working as a route salesman when he sustained the injury which is the subject of this appeal. The record reflects that claimant has no history of prior back injuries, or of any other workers' compensation injuries.

Claimant was treated by Dr. White, an orthopedic surgeon. In an office note dated October 30, 1986, Dr. White indicated that at that time claimant could return to work in a management position, which would not require any lifting of heavy soda cases. When claimant returned to work on November 6, 1986, he was given a job as route manager, a supervisory position consistent with his medical restrictions. Dr. White's office note of November 21, 1986, again emphasized that although claimant could function in a supervisory capacity, he should not attempt to lift heavy cases of soda, since in all probability such conduct would result in a recurrence of his symptoms.

Claimant then worked on a full-time basis until December 31, 1986, when he was terminated. The termination occurred after a customer on his route alleged that claimant offered to sell redeemable discount coupons for cash. Claimant denied the accusation, and requested an investigation, including a check of the discount coupons and a polygraph test. Neither of these steps was taken, and claimant was summarily dismissed.

Subsequently, claimant applied for unemployment benefits. After four appeals, he received benefits and was placed on a work search. Claimant testified that during the course of his work search, he talked with the management personnel of five or six vending companies, at which time he advised prospective employers that he could work in a supervisory capacity, but could not work in any capacity that involved heavy lifting. In each instance, claimant was told the company was not hiring at that particular time.

The parties stipulated that claimant received unemployment compensation for twenty-six weeks, from January 24, 1987 until July 18, 1987. Claimant testified without contradiction that during this period, he made three calls a day, and reported to the employment office every five or six weeks, as directed. Claimant further stated that he turned in records of his job search to the unemployment office, but did not keep copies for himself. The attorneys for the respective parties stipulated that an attempt had been made to obtain claimant's job search records from the unemployment office, but they had been destroyed.

After his unemployment benefits expired in July 1987, claimant continued to search for work. Counsel for employer/carrier acknowledged that claimant was not provided with the appropriate forms for temporary partial disability benefits until October or November 1987. Once the forms were provided, claimant filed them in accordance with the instructions given by the carrier's representative. Later, he was advised that the carrier had determined not to pay benefits. Although claimant submitted no more forms after being advised of the carrier's decision, he testified that he continued to look for work.

In denying the claim for temporary partial disability benefits, the deputy found that claimant's testimony concerning his job search was vague and nonspecific, and that some job search lists furnished by claimant were not credible. The deputy further found that the medical evidence demonstrated that claimant could return to work with minimal restrictions, that his loss of earnings was not due to his restrictions, and that claimant had voluntarily limited his income by not making a good faith effort to return to work.

It is well settled that entitlement to temporary partial disability benefits requires evidence of a conscientious work search, or a medically justifiable reason to excuse the work search requirement. Hill v. Baptist Hospital, 464 So.2d 1350 (Fla. 1st DCA 1985). Generally, the adequacy of a claimant's work search is a question of fact for the deputy. However, the good faith of the work search should be determined in light of all the existing circumstances, which would include such matters as claimant's age, physical impairment, industrial history, training, education, motivation, work experience, and work record. Ringling Brothers Barnum and Bailey Circus v. O'Blocki, 496 So.2d 947 (Fla. 1st DCA 1986). See also Paramount Poultry v. Mims, 472 So.2d 1281 (Fla. 1st DCA 1985); Simpson Motors v. Wilson, 453 So.2d 140 (Fla. 1st DCA 1984); Whitehall Corp. v. Davis, 448 So.2d 47 (Fla. 1st DCA 1984). Furthermore, a work search is not a prerequisite to receipt of benefits where the employer/carrier fail to advise the claimant of his obligation to perform a work...