Ringling Bros. Barnum and Bailey Circus v. O'Blocki, BK-474

• Decision Date: 29 October 1986
• Docket Number: No. BK-474,BK-474
• Citation: 11 Fla. L. Weekly 2276,496 So.2d 947
• Parties: 11 Fla. L. Weekly 2276 RINGLING BROTHERS BARNUM AND BAILEY CIRCUS and Insurance Company of North America, Appellants, v. Horst O'BLOCKI, Appellee.
• Court: Florida District Court of Appeals

Page 947

496 So.2d 947

11 Fla. L. Weekly 2276

RINGLING BROTHERS BARNUM AND BAILEY CIRCUS and Insurance Company of North America, Appellants, v. Horst O'BLOCKI, Appellee.

No. BK-474.

District Court of Appeal of Florida First District.

Oct. 29, 1986.

John J. O'Riorden of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants.

Alexander G. Paderewski, Sarasota, for appellee.

MILLS, Judge.

Ringling Brothers Barnum and Bailey Circus and the Insurance Company of North America (E/C) appeal from an order of the deputy commissioner awarding temporary total, temporary partial and wage-loss benefits. We affirm in part and reverse in part.

At the time of the accident herein, O'Blocki was employed by the E/C as the lead performer in a circus act involving the formation of a human pyramid. He suffered a comminuted fracture of his right ankle in August 1983 when he fell from the pyramid during a performance. He returned to work for the E/C after two or three months but was not able to assume his former acrobatic duties. His contract with the E/C expired in December 1984 and was not renewed.

Written job search records covering the months from December 1984 through April 1985 show that O'Blocki contacted numerous employers in Florida, as well as in other states and overseas, seeking employment in the circus and/or entertainment field. He also testified, through an interpreter, that he looked in the classified section of the newspaper "but only for his purpose" (presumably only for circus/entertainment jobs). There is no written evidence of a job search in May 1985.

On 24 May, O'Blocki's physician determined that surgery was necessary to remove the last of the hardware which had been placed in the ankle to aid in healing. This surgery was performed on 5 June and O'Blocki reached maximum medical improvement on 18 July 1985. The only evidence in the record of a job search after MMI is registration with the Florida State Employment Service. No job offers resulted from this action, but on 15 October O'Blocki accepted a position doing swimming pool maintenance which he heard about at a social occasion. He was so employed at the time of the November 1985 hearing on his claim for TPD, TTD and/or wage-loss benefits.

The deputy commissioner entered his order granting the claim in December 1985, finding that O'Blocki had been TPD from December 1984 through 24 May 1985 and, based on medical testimony, had been TTD from 25 May 1985 until MMI. The D/C also found O'Blocki entitled to wage-loss benefits from MMI to the time of the hearing. The only finding with regard to the adequacy of O'Blocki's work search was "[t]he claimant has made an effort to return to work and to find work within his capacity without success since [December 9, 1984]."

The E/C alleges first that it was error to award TPD and wage-loss benefits in that O'Blocki failed to demonstrate a causal connection between his injury and his inability to find work. We cannot agree. The E/C relies on the fact that O'Blocki stayed on with the circus for over a year after his injury and left only because his contract expired, citing Citrus Central v. Parker, 423 So.2d 610 (Fla. 1st DCA 1982) (claimant was laid off for economic reasons after returning to work post-injury; court found no causal connection between the injury and the wage-loss).

However, the holding of Citrus Central was strictly limited in Williams Roofing, Inc. v. Moore, 447 So.2d 968 (Fla. 1st DCA 1984), when the court held that a layoff for economic reasons without more was insufficient to show the required causal connection. The test for whether physical limitations subsequent to an accident are a contributing causal factor to wage-loss was later established as the claimant's capability of returning to and performing adequately his prior job with the E/C. Superior Pontiac v. Hearn, 458 So.2d 1197, 1199 (Fla. 1st DCA 1984) (emphasis supplied).

Here, there is medical testimony to the effect that, due to the possible instability of O'Blocki's ankle after his industrial accident, he cannot safely return to his prior job as a human-weight-supporting acrobat. It was not contended by the E/C that O'Blocki continued to perform such work during the period following his accident until the expiration of his employment contract but rather that he performed light duty only during that time. Therefore, we find that O'Blocki demonstrated the required causal relationship between his injury and his inability to work so as to support the awards of TPD and...