Regency Inn v. Johnson

• Decision Date: 16 June 1982
• Docket Number: No. AE-354,AE-354
• Citation: 422 So.2d 870
• Court: Florida District Court of Appeals
• Parties: REGENCY INN, Aetna Casualty & Surety Company, Appellants, v. Linda Faye JOHNSON, Appellee.

Page 870

422 So.2d 870

REGENCY INN, Aetna Casualty & Surety Company, Appellants, v. Linda Faye JOHNSON, Appellee.

No. AE-354.

District Court of Appeal of Florida First District.

June 16, 1982.

On Rehearing En Banc Sept. 23, 1982.

Rehearing Denied Dec. 1, 1982.

Margaret E. Sojourner, of Haas, Boehm, Brown & Rigdon, Orlando, for appellants.

Clifton L. Howell, Jr., Winter Haven, for appellee.

Michael R. Miller and John-Edward Alley, Tampa, for Alley & Alley, Chartered.

H. George Kagan, Miller, Hodges & Kagan, Miami, for Risk Management Services, Inc.

Michael A. Edwards, Quincy, for U.S. Sugar Corp.

L. Kathleen Horton, Clark, Partington, Hart, Hart, & Johnson, Pensacola, for City of Pensacola.

Richard A. Kupfer, Cone, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for Academy of Florida Trial Lawyers.

Mary Ann Stiles, Stiles & Livingston, Tampa, for Associated Industries of Florida, Inc.

James N. McConnaughhay and Arthur C. Beal, Jr., Tallahassee, for Ins. Co. of North America.

Mygnon C. Evans, Temple Terrace, for Florida Citrus Mut.

Bernard J. Zimmerman and Michael M. O'Brien, Akerman, Senterfitt & Eidson, Orlando, for American States Ins., Denny's Restaurant/Self-Insured Services by Scott Wetzel, Iowa Nat. Ins., Nat. Services Industries, Inc., Sentry Ins. Companies and Sun Bank, N.A.

Heskin A. Whittaker and B.C. Pyle of Whittaker, Pyle, Stump & Webster, P.A., Orlando, for Florida Self-Insurers' Fund of Associated Industries of Florida.

Ronald W. Brooks, Brooks, Callahan & Phillips, Tallahassee, for South Central Educational Risk Management Program.

Frederick B. Karl and S. James Brainerd, Tallahassee, for Florida Ass'n of Ins. Agents. Dan F. Turnbull, Jr., Asst. Gen. Counsel, Florida Dept. of Labor and Employment Sec., Tallahassee, for Dept. of Labor and Employment Sec., Div. of Workers' Compensation.

Richard A. Sicking, of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castor, P.A., Miami, for Florida AFL-CIO.

L. Barry Keyfetz, of Keyfetz, Poses & Halpern, Miami, for L. Barry Keyfetz.

Andrew A. Graham and Marjorie E. Smith, Reinman, Harrell, Silberhorn, Moule, Boyd & Graham, Melbourne, for Harris Corp.

Jonathan L. Alpert, Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for Florida Farm Bureau Mut. Ins. Co. Richard G. Davis, Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for Hillsborough County Hosp. Authority.

Charles E. Bentley and C. Kenneth Stuart, Jr., Holland & Knight, Bartow, for Agrico Min. Co., Caronia Claims Service, Inc., Intern. Minerals and Chemical Corp., CTD Corp., St. Regis Paper Co., Tampa Elec. Co., Underwriters Adjusting Co., and USS Agri-Chemicals.

PER CURIAM.

This workers' compensation appeal presents again a challenge to the sufficiency of work search evidence in support of an award of wage loss benefits. We affirm the order finding that claimant met her obligation under the statute, which provides "the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury." (e.s.) § 440.15(3)(b)2, Florida Statutes.

The facts detailed below permit a conclusion that claimant would not have suffered the wage loss in question if her compensable injury had not occurred. We therefore find the statutory requirement of causal connection is met, even assuming, as appellant argues, that claimant did not prove directly that jobs were available which she could not get because of her physical limitations. The appellant employer/carrier relies upon LeHigh Corporation v. Byrd, ¹ and other recent decisions based on the stated rule that a work search which is unsuccessful due to unavailability of work precludes compensation because such evidence does not prove a loss due to compensable disability. Although we do not intend to disagree with the results reached in all of those prior cases (which may involve facts or distinguishing statutory standards otherwise substantiating the decisions reached), we do recognize that their stated rationale conflicts with our construction and application of the statutory language first above quoted in the present case. For the purpose of wage loss entitlement we now conclude the LeHigh rule is inapplicable, and find no necessity in this case for discussion of its merit in the context of compensation for total disability, permanent or temporary. ²

Claimant was injured on August 25, 1979, during the course and scope of her duties as a maid at the Regency Inn. Prior to her accident, the claimant suffered from a preexisting injury to the pelvic area which caused a deformed left leg. The deputy accepted claimant's testimony that she had not been limited by her prior condition except for limping, and that she had always been able to carry out her occupational duties without pain, discomfort or limitation. The record indicates that the appellee sustained a 25% impairment, 5% of which was attributable to the industrial accident.

Claimant was paid $72.50 temporary total disability benefits from August 26, 1979, through December 2, 1979, and from January 3, 1980, through August 4, 1980. Johnson

subsequently filed a claim for 100% wage loss benefits for the period beginning August 4, 1980, through the December 10 hearing. The deputy commissioner denied this claim by order of April 24, 1981, based on absence of work search. On May 11, 1981, a hearing was held to decide a claim for wage loss benefits for the period December 10, 1980, through April 10, 1981. ³ The deputy commissioner determined that Johnson had made a good faith effort to obtain employment and that she had been unsuccessful in obtaining employment. The claimant had a limited employment history, having worked only in domestic or related labor. Her treating physician indicated that, as a result of the injury, appellee had to seek lighter employment. Claimant had made a job search during the controverted time at the following places:

1. Florida State Employment Office (January 14, 15, 20, March 15, 20, 28);

2. Eckerd Drug Store (March 14, 18, 20);

3. Exchange Bank of Polk County (March 10, 15);

4. First Federal Savings.

The record also contains a list showing additional places of employment at which appellee sought a job.

On June 5, 1981, the deputy commissioner entered an order awarding the claimant 100% wage loss benefits for the period from December 10, 1980, through April 10, 1981. The employer then filed this timely appeal, raising only the question of whether there was sufficient evidence to sustain the deputy commissioner's order requiring payment of wage loss benefits to the claimant.

Based on claimant's testimony that prospective employers stated "they wasn't hiring," appellant contends claimant's work search was necessarily inadequate and "her inability to obtain work was due to unavailability of work rather than Johnson's injury." (e.s.) The record, however, does not indicate any lack of diligence or good faith such as might conceivably result from an extremely restricted or illogical search. We conclude accordingly that the deputy properly applied those tests within the parameters for work search recently restated in Wright v. Gulf and Western Food Products, 401 So.2d 1316, 1318 (Fla.1981).

We believe that the reasoning and authorities set forth in the dissenting opinion in Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982), are dispositive of the issue presented in this case. We also note that the statutory language on wage loss, supra, stands in contrast to that which governs a claimant's burden in establishing permanent total disability, i.e., "the burden shall be upon the employee to establish that he is not able uninterruptedly to ... work due to physical limitations," and no compensation of that character shall be payable "if the employee ... is physically capable of ... gainful employment." § 440.15(1)(b), Florida Statutes. Since the LeHigh rule would effectively limit compensable wage loss to that which results from physical incapacity (as opposed to economic incapacity caused by job disruption accompanying industrial injury), the application of that rule to wage loss would disregard the apparent intent of the legislative standards on causal relation which are framed so distinctly for the two classes of benefits. For wage loss the statute provides simply for general causal relation by covering any such loss which "is the result of the ... injury." If the intent had been to require wage loss from physical incapacity for work (independent of job availability) as an absolute condition to compensation for wage loss, the alternative language would surely have been used. ⁴ The definition of disability in the act also utilizes a general causal relation concept by referring simply to "incapacity because of the injury to earn ...," and not to incapacity from physical limitations of the injury.

Certainly nothing in the statutory framework for wage loss awards evinces an intent to abandon that element of the well settled standard for capacity to earn which takes into account "[i]nability to obtain work of a type which claimant can perform in light of his after-injury condition," Walker v. Electronic Products & Engineering Co., 248 So.2d 161, 163 (Fla.1971).

We find, accordingly, that the rule stated in LeHigh and its progeny should not govern the evaluation of work search standards for wage loss, and the award by the deputy in this case is therefore affirmed.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.

OPINION ON REHEARING EN BANC

PER CURIAM.

The court of its own motion voted to consider, en banc, the panel's decision in this case. Additional briefs by the parties were requested, submissions by amici curiae were invited, and oral argument was scheduled and heard. The court commends counsel for the parties and those appearing for amici curiae on both sides for the professional and capable manner in which they have responded to the court's request for assistance in...