South Florida Water Management Dist. v. Ciacci

Decision Date19 July 1994
Docket NumberNo. 92-2458,92-2458
Parties19 Fla. L. Weekly D1548 SOUTH FLORIDA WATER MANAGEMENT DISTRICT and Johns Eastern Company, Inc., Appellants/Cross-Appellees, v. Louis CIACCI, Appellee/Cross-Appellant.
CourtFlorida District Court of Appeals

Kimberly A. Hill of Conroy, Simberg & Lewis, P.A., Hollywood, for appellants/cross-appellees.

Jerold Feuer, Miami, for appellee/cross-appellant.

PER CURIAM.

This appeal and cross-appeal arise from an order of the judge of compensation claims (JCC) accepting claimant Louis Ciacci's injuries as compensable and ordering various benefits, including temporary partial disability and wage loss, to be paid by the employer and carrier (E/C). The E/C raise three issues on appeal. We find competent, substantial evidence to support the JCC's order on all three issues and affirm without further discussion.

On cross-appeal, claimant raises three issues: (1) whether the JCC erred in applying the "deemed earnings" provision to claimant's wage-loss benefits; (2) whether the JCC erred in applying the deemed earnings provision after applying the notice provision for a work search under the 1990 version of section 440.15, Florida Statutes, when claimant was injured in February of 1990; and (3) whether the JCC erred in allowing social security retirement benefits to offset a retroactive award of wage-loss benefits to claimant. We find the issues on cross-appeal merit discussion and, as such, address them below.

In her final order, the JCC found that claimant was entitled to wage-loss benefits as a result of his work-related accident. The JCC supported this finding by stating:

The claimant has met his statutory burden of proof by adducing evidence of an unavailing work search, sufficiently extensive and intensive, which reasonably permits the conclusion that the claimant's inability to obtain employment or earn as much as he did at the time of his industrial accident, is due to physical limitations related to his industrial accident, and not because of economic conditions or the general unavailability of employment.... Since the claimant affirmatively demonstrated at the hearing that he has sustained an economic loss and a change in employment status, both of which are due to the effects of the industrial injury ... the burden then shifted to the employer/servicing agent to present affirmative proof that the claimant refused work or voluntarily limited his income. The employer/servicing agent did not meet this burden.

Following the award of wage loss, the JCC determined that the award would be reduced under the deemed earnings provision. This determination was apparently based on evidence that claimant intended to work at a lower paying position after retirement. 1 We hold that the JCC erred in this regard because the order does not support application of the deemed earnings provision.

In order for the deemed earnings provision to apply, the employee must have voluntarily limited his income, failed to accept employment commensurate with his abilities, or have been terminated from employment by his own misconduct. Secs. 440.15(3)(b)2 and (4)(b), Fla.Stat. (1989). In Walker v. Heavy Machinery Tool & Transporters Inc., 576 So.2d 1363 (Fla. 1st DCA 1991), this court held that the JCC is required to find that the employee voluntarily limited his income or failed to accept employment commensurate with his abilities.

In the instant case, the JCC found that claimant neither refused to accept employment commensurate with his abilities nor voluntarily limited his income. 2 The JCC's order, which negates the basis for application of the deemed earnings provision, nonetheless applies that provision. As a result, the order is internally inconsistent. Because of this inconsistency and because the record suggests that claimant may have voluntarily limited his income, we reverse and remand for further clarification in accordance with the above-cited authorities. On remand, we remind the JCC that the amount of deemed earnings is the amount that would have been earned if the employee had not limited his income, not the amount claimant voluntarily decides to earn. Secs. 440.15(3)(b)2 and 440.15(4)(b), Fla.Stat. (1989).

As to the second issue on cross-appeal, we hold the alleged error to be harmless. Any misapplication of...

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5 cases
  • Monroe v. PUBLIX# 148
    • United States
    • Florida District Court of Appeals
    • August 10, 2001
    ...benefits.1 Nor does the present case raise any question involving offsets asserted or taken against an award of back compensation payments.2Cf. South Fla. Water Mgmt. Dist. v. Ciacci, 647 So.2d 203, 205 (Fla. 1st DCA Cases decided before section 440.15(13), Florida Statutes (1997), took eff......
  • Fardella v. Genesis Health, Inc.
    • United States
    • Florida Supreme Court
    • December 19, 2005
    ...as it existed before its amendment, i.e., Delchamps v. Page, 659 So.2d 341 (Fla. 1st DCA 1995), and South Florida Water Management District v. Ciacci, 647 So.2d 203 (Fla. 1st DCA 1994), nonetheless, the JCC's denial was supported by medical evidence disclosing that claimant had the capacity......
  • Borowski v. Ferrer, 1D15-3358
    • United States
    • Florida District Court of Appeals
    • September 5, 2018
    ...February 4, 1995, through the present and continuing. This inconsistency must be corrected on remand."); S. Fla. Water Mgmt. Dist. v. Ciacci , 647 So.2d 203, 205 (Fla. 1st DCA 1994) ("[T]he order is internally inconsistent. Because of this inconsistency ... we reverse and remand for further......
  • Rockwell Intern. v. Ayala, 96-48
    • United States
    • Florida District Court of Appeals
    • October 16, 1996
    ...Palm Bay; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellee. PER CURIAM. AFFIRMED. South Fla. Water Management Dist. v. Ciacci, 647 So.2d 203 (Fla. 1st DCA 1994); Horton v. Martin Memorial Hosp., 610 So.2d 1352 (Fla. 1st DCA 1992), review denied, 626 So.2d 207 ERVIN, KAHN and......
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