Stahl v. Southeastern X-Ray

Decision Date21 March 1984
Docket NumberNo. AP-301,X-RAY and R,AP-301
Citation447 So.2d 399
PartiesJoel STAHL, Appellant, v. SOUTHEASTERNisk Management Services, Inc., Appellees.
CourtFlorida District Court of Appeals

Joel Stahl, pro se.

H. George Kagan, of Miller, Hodges & Kagan, Miami, for appellees.


The claimant in this case, a 30 year old high school graduate, appeals an order denying a $1000+ claim for personal costs and damages incurred while he attempted pro se to obtain controverted benefits, and granting wage loss benefits from March through May, 1982, but denying such benefits thereafter because claimant was "not seeking other employment." We affirm the denial of damages as involving costs not recompensed by Chapter 440, Florida Statutes, but reverse the deputy's ruling on wage loss benefits after June 1, which were denied for lack of work search while claimant was employed full time.

The deputy relied solely on claimant's cessation of active work search; the order contains no findings with respect to his actual capacity or limitations; and the record consists solely of testimony by claimant and documentary evidence which does not otherwise show voluntary limitation of income. The issue therefore appears to be whether the deputy properly applied the work search rule to require forfeiture of wage loss benefits when claimant, because of objection from his present employer, stopped active job search efforts which had yielded no better alternative throughout the initial three months on that job. We conclude he did not, and find that earlier decisions holding certain part-time employments to be inadequate job market tests 1 do not support that result in this case. 2 We need not, of course, determine that a claimant's full-time employment at less than former wages always shifts to employer the burden of proof of voluntary limitation of income under the statute. 3 But the context of such employment negates voluntary limitation in this case, absent any evidence that claimant would not "accept employment commensurate with his ... abilities." 4

The record reflects claimant's injury by compensable accident on March 7, 1980, while handling x-ray equipment for the appellee, self-insured employer, for whom claimant had worked approximately six months doing skilled technical work and heavy lifting involved in installation of equipment. He was apparently temporarily disabled for a year, until maximum medical improvement was reached April 1, 1981, with a 15% permanent impairment from his back injury. A previous claim was determined on October 11, 1982, and affirmed on appeal in March, 1983, except for correction of the $350.00 average weekly wage by addition of $10.00 for insurance payment. Stahl v. Southeastern X-Ray, 427 So.2d 1089 (Fla. 1st DCA 1983). Wage loss in some amount was paid through February 28, 1982, and the current claim was filed in March and heard in August, 1982.

Claimant's employment in January and February, 1982, was with D & K X-Ray, doing maintenance work at $3.75 per hour. On March 6, according to the order, he was "laid off by his employer ... and ... thereafter for a period of two weeks, he actively looked for work until locating the job at Diamond Laboratories, paying $3.35 an hour and while with Diamond Laboratories sought a better paying job until late May when his employer promoted him to a more responsible job [customer relations for the photographic lab] and gave him a raise effective June 1, 1982," to $3.75 per hour. The deputy clearly relied on claimant's "not seeking other employment" to find voluntary limitation. The deputy's statement, with reference to claimant's current job, that he "plans to make this work his career for the indefinite future" must be construed in reference to claimant's testimony set out below, which is consistent with other record evidence. 5 Admission that he was not "calling anymore for jobs" plainly does not show a decision by claimant that he would not "accept employment commensurate with his ... abilities" as required by the statute to deny benefits, and the order does not so find. Pertinent testimony is:

It was sometime in May I made a phone call from the lab to try to set up an interview, a job interview, and I didn't know it at that time that the boss had a listening device, ... And he overheard me ... and he asked me if I was looking for work and I told him yes, that three thirty-five, I just can't live on that. He said that he might be able to put me into a better position ....

So, in June he put me into a new position and gave me a raise to three seventy-five an hour ... which made me happy because now I'm starting to make more money there and they're giving me a little bit more authority.


* * *

Q: To the best of your knowledge and knowing what you know and your evaluation of what the boss has told you about your job and presently, is it your intention to stay? I don't mean forever in the future. None of us can look that far down the road. Is it your present intention to stay?

A: Well, like I said, if I have some type of future there, yes, I'm going to stay.

My boss has indicated that I have a future there, so I feel that I have a good job right now and it would be silly for me to leave a good thing.

Q: So, in June or July since you got your raise, you haven't been calling anymore for jobs? You're trying to increase your job there?

A: Right.

Under these circumstances we conclude the claimant adequately met his initial burden, absent any findings by the deputy or any evidence showing claimant's lack of good faith effort or willingness to return to his former job or one with equivalent earnings throughout the year between MMI and his commitment to the job now in question. Benefits should have been awarded for the months when claimant worked full time at the only employment available to him so far as reflected by the record. The explicit statutory test, i.e., voluntary limitation of income, is in our opinion clearly negated by claimant's unchallenged unavailing efforts over preceding months (for which wage loss was awarded) to obtain employment in the work he formerly did or to find a comparably paid job. The deputy's order would compel claimant to forfeit any present or future commitment to a full-time job which appears to be appropriate in all ways other than presently diminished earnings. The order would indicate that the deputy misconstrued the evidentiary work search rule out of context with the statutory test.

Reversed and remanded for proceedings consistent herewith.

ZEHMER, J., concurs.

NIMMONS, J., concurs in part & dissents in part with opinion.

NIMMONS, Judge, concurring in part and dissenting in part.

I concur in the court's opinion affirming the deputy's denial of appellant's claim for "personal costs and damages" but dissent from the court's reversal of the deputy's denial of wage-loss benefits.

A wage-loss claimant has the burden of proving all elements of...

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    ...the good faith nature of his job search. See Parker Lumber Co. v. Hart, 497 So.2d 948 (Fla. 1st DCA 1986) (citing Stahl v. Southeastern X-Ray, 447 So.2d 399 (Fla. 1st DCA 1984) (concluding that obtaining and performing a full-time job constitutes an adequate job search for purposes of worke......
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