Rios v. Fred Teitelbaum Const.

• Decision Date: 30 March 1988
• Docket Number: No. 87-109,87-109
• Citation: 13 Fla. L. Weekly 809,522 So.2d 1015
• Parties: 13 Fla. L. Weekly 809 Robert RIOS, Appellant, v. FRED TEITELBAUM CONSTRUCTION and U.S. Fidelity & Guaranty Company, Appellees.
• Court: Florida District Court of Appeals

Page 1015

522 So.2d 1015

13 Fla. L. Weekly 809

Robert RIOS, Appellant, v. FRED TEITELBAUM CONSTRUCTION and U.S. Fidelity & Guaranty Company, Appellees.

No. 87-109.

District Court of Appeal of Florida First District.

March 30, 1988.

David L. Kahn, Fort Lauderdale, for appellant.

Anthony J. Beisler, Fort Lauderdale, for appellees.

JOANOS, Judge.

In this workers' compensation case, Robert Rios (claimant) appeals the deputy commissioner's order denying his claim for wage loss benefits for December 1986. The issues for our consideration are (1) whether claimant was excused from a work search, because the employer and carrier (E/C) failed to advise that a work search was a prerequisite to receipt of December 1986 wage loss benefits; (2) whether claimant was excused from a work search because he was performing a full-time job; and (3) whether the E/C demonstrated by competent substantial evidence that claimant voluntarily limited his income.

Claimant began working for the employer, Fred Teitelbaum Construction, sometime in 1972 or 1973. At the time of the injury which is the subject of this appeal, claimant was employed as foreman of a special hydraulic system at Fred Teitelbaum Construction. On July 25, 1983 while on the construction site, claimant suffered a back injury which subsequently required surgery. Following the surgery, claimant experienced a loss of sensation in his left leg and the bottom of his left foot. In addition, he suffers continuing back pain. Claimant regularly performs prescribed exercises at home and at a gym.

Two months after his back surgery, claimant obtained work with Kroll Company as a regular carpenter. This type of work proved to be unsuitable due to the limitations caused by claimant's back injury. Claimant stated that when he found the work too painful to continue, he was laid off because the company had no other work to offer him. Through the intervention of a friend who was a foreman at F. Benson & Sons, claimant obtained a job doing layout work for that company for six or seven months. After the layout work ended, and work on the building had progressed, claimant was assigned heavier work as a carpenter. He performed the heavier work for approximately four weeks, but again found himself unable to continue due to pain. Claimant explained the problem to his supervisor, but the company had no alternative work for him.

Claimant next obtained a job as a salesman for Rose Auto Parts. After three or four months, his job duties were enlarged to include unloading oil, batteries, and auto parts from trucks. Claimant stated he left that job because unloading trucks exacerbated his back problems. After leaving Rose Auto Parts, claimant obtained a job as a salesman and estimator with Paint Decor, a vertical blind company.

In January 1986, claimant started his own business, Broward Vertical Blinds. After two months, he formed a partnership with two other persons. The business operated as a partnership for approximately one year, and then the partners withdrew because the business was too small to support three people. Claimant works out of his house, primarily as a salesman, although he also does some installation work. He receives $200 a week from the business, the same salary he earned with Paint Decor.

Claimant received wage loss benefits through November 1986. On January 7, 1987, the carrier controverted the December 1986 claim for wage loss, stating as reason therefor an inability to verify claimant's earnings. The insurance adjuster for the carrier testified that he made no effort to verify claimant's earnings. Instead, the adjuster decided to place claimant under surveillance to determine whether he was an owner or an employee of Broward Vertical Blinds. The adjuster received surveillance reports on April 29, 1986; June 27, 1986; and November 18, 1986. After ascertaining that claimant had taken out an occupational license for Broward Vertical Blinds, the adjuster denied payment of wage loss benefits in December 1986, based on his determination that an owner of a business should earn more than $200 a week.

The deputy commissioner found the fact that claimant was operating a struggling business would not excuse his failure to perform a good faith work search, so as to re-establish himself in the open market place at a wage more commensurate with his earnings at the time of his injury. The deputy commissioner further found that by failing to seek more suitable gainful employment, claimant voluntarily limited his income, and denied the December 1986 claim for wage loss benefits on that basis.

Generally, a work search is a prerequisite to recovery of wage loss benefits pursuant to section 440.15(3)(b), Florida Statutes, however, an employee "is excused from a job search if the employer fails to inform the employee of his rights and responsibilities under the Act." Coq v. Fuchs Baking Company, 507 So.2d 138, 141 (Fla. 1st DCA 1987). See also Lopez v. Nabisco Brands,...