Stewart v. Pave-Mark, PAVE-MARK and L

• Decision Date: 06 October 1982
• Docket Number: No. AG-59,PAVE-MARK and L,AG-59
• Citation: 420 So.2d 342
• Parties: Jack STEWART, Appellant, v.iberty Mutual Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 342

420 So.2d 342

Jack STEWART, Appellant, v. PAVE-MARK and Liberty Mutual Insurance Company, Appellees.

No. AG-59.

District Court of Appeal of Florida First District.

Oct. 6, 1982.

Mark L. Zientz of Williams & Zientz, Coral Gables, for appellant.

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

ERVIN, Judge.

In this workers' compensation case, the claimant appeals the order of the deputy commissioner denying the claim for wage-loss benefits. We reverse and remand for further consistent proceedings.

The order resulted from a supplemental hearing held on July 7, 1981 for the purpose of determining claimant's alleged entitlement to wage-loss benefits due from the maximum medical improvement date of September 15, 1980 to June 12, 1981. The original order of April 10, 1981 included the finding that claimant had a five percent impairment of the body as a whole. Claimant was injured in a compensable accident on April 10, 1980, resulting in a fractured right ankle and injuries to the left knee and left wrist. Also, in the previous order the deputy found the average weekly wage to be $188.65, with a compensation rate of $125.77. The employer/carrier agrees that the April 10, 1981 order is res judicata on all issues adjudicated. However, the e/c controverted the claim for wage-loss benefits on the basis that claimant was able to earn 95% of 85% of the wages he was earning at the time of the accident.

The order appealed from is brief. Although the deputy found that claimant still suffered from the injury to the extent described in the attending physician's report, he concluded that "the injury does not interfere with the employee's ability to earn the same wages he was earning at the time of his accident." The crux of the parties' arguments on appeal is whether the claimant had proven an appropriate work search, sufficient to demonstrate a compensable wage loss.

At the time of the accident, claimant was thirty-one years old, had completed one year of college and was employed as a "long-line operator" for the employer, a private company in the business of painting lines and markings on highways, parking lots and other paved areas. Claimant was not rehired by his employer. He eventually found work on May 17, 1981 as a delivery driver. The testimony of claimant and a list of jobs he produced reveal that he applied for work as a laborer, orderly, delivery person, truck driver, sign painter, handyman, garbage man, warehouse worker, carpenter, fire fighter and bus driver. The list also discloses at least two dozen businesses claimant had contacted, and he testified that he had "put in about 50 to 75 applications." Claimant testified that he was unable to find work although he actively pursued work during the period of the claimed wage loss. His rejection for the jobs for which he applied was not necessarily due to his physical problems. He stated he was "just turned down completely" at one place because of his long period of unemployment, and at other places because they weren't hiring. At some places he would ask initially if the employer would hire someone who had a workers' compensation claim, or was injured. If the employer said yes, then claimant would reveal that he had a claim. He testified that he tried to apply for jobs where he wouldn't have to be on his feet for eight hours continuously, as he is unable to stand for long periods of time.

The employer/carrier maintains that the deputy was correct because claimant did not show by competent, substantial evidence that his work search was unsuccessful due to his disability rather than to unavailability of work; thus, he failed to...