Publix Supermarkets, Inc. v. Franklin

• Decision Date: 21 February 1985
• Docket Number: No. AX-24,AX-24
• Citation: 10 Fla. L. Weekly 479,467 So.2d 1031
• Parties: 10 Fla. L. Weekly 479 PUBLIX SUPERMARKETS, INC., & Hartford Insurance Group, Appellants, v. Arlene FRANKLIN, Appellee.
• Court: Florida District Court of Appeals

Page 1031

467 So.2d 1031

10 Fla. L. Weekly 479

PUBLIX SUPERMARKETS, INC., & Hartford Insurance Group, Appellants, v. Arlene FRANKLIN, Appellee.

No. AX-24.

District Court of Appeal of Florida First District.

Feb. 21, 1985.

Richard H. Gaunt, Jr., of Cibula, Gaunt & Pratt, West Palm Beach, for appellants.

Joseph A. Vassallo, of Vassallo, Pheterson & Sack, Lake Worth, for appellee.

WENTWORTH, Judge.

The claim in this workers' compensation case, based on an April 5, 1982, accident, ¹ was for six months' temporary disability compensation for the period between February 15, 1983, and the hearing on August 24, 1983. The deputy awarded benefits for the last month at claimant's applicable compensation rate ($134.35 weekly) and, based on voluntary limitation of income by inadequate work search for the first five months, he denied wage loss except for a $31.00 weekly amount ² awarded because of evidence that, in jobs within her medical restrictions, claimant could have earned only $140.00 instead of her former $201.54 weekly wage for heavy duty work. We affirm because the limited wage loss awarded was, upon the record evidence, attributable entirely to claimant's medical incapacities limiting the work which she could have performed even assuming successful work search, and work search was thus excused only as to work prohibited by treating doctors. We find no merit in the employer/carrier's challenge based on evidentiary insufficiency.

This order, denying the claim to the full extent claimant was able to earn during temporary disability under § 440.15(4)(b), Florida Statutes, complies precisely with the rule stated in earlier cases:

... a specific finding ... that the claimant had voluntarily limited her income by not conducting an adequate work search ... triggers the provisions of Section 440.15(3)(b)(2), F.S. 1979:

"... In the event the employee voluntarily limits ... income ... the salary ... the employee is able to earn ... shall be deemed to be the amount which would have been earned if the employee did not limit his or her income...." (e.s.) ³

Leffler v. Grand Union, 409 So.2d 1145 (Fla. 1st DCA 1982). See also City of Cocoa v. Adams, 419 So.2d 720 (Fla. 1st DCA 1982); Vida Appliances, Inc. v. Gates, 416 So.2d 1186 (Fla. 1st DCA 1982); Pompano Roofing Co. v. O'Neal, 410 So.2d 971 (Fla. 1st DCA 1982).

The deputy found that (1) two physicians restricted claimant to light duty jobs not requiring lifting, and further that: (2) "... claimant voluntarily limited her income. I accept the testimony of [carrier witness] Lee Tomson that [she] could have earned $3.50 per hour or $140.00 per week.... Accordingly I find [her] entitled to temporary partial disability based upon deemed earnings of $140.00 per week or actual earnings, whichever is higher...." The order thus effectively excuses only a search for work of the kind prohibited by the medical evidence, and grants only wage loss attributable solely to claimant's continuing medical incapacity for heavy duty work such as her former job, on which her $201.54 average weekly wage and $134.35 resulting compensation rate were based.

Our decisions have uniformly recognized a medical incapacity excuse for lack of work search, and we find no opinion restricting that principle to periods of total medical disability. Instead, as recognized by the cases above cited, logic supports the pro tanto application in the present case. That result on these facts does not, of course, mean that a claimant without such a restriction may substitute opinion evidence for work search as a means of establishing ability or inability to earn. The opinion evidence in the present case merely established indirectly the value of that part of claimant's wage loss attributable to medical restriction as opposed to inadequate search. The contrasting facts presented in Eastside Bait & Tackle v. Humphrey, 440 So.2d 41 (Fla. 1st DCA 1983), illustrate perfectly the impropriety of excusing a total absence of work search and awarding partial wage loss compensation when claimant's "inability" to work more than 20 hours weekly resulted from a desire not to forfeit retirement benefits and not from medical incapacity. That opinion, like many others restating the primacy of work search evidence, articulates a standard compatible with the statutory deemed earnings provision. The work search standard, however, has been imposed not as an absolute condition precedent but as an evidentiary burden, precluding compensation (absent work search) whenever a search would be essential to establish ability or inability to earn but not when an inability to earn rests, in whole or in part, on a medical prohibition as to which a...