Topeka Inn Management v. Pate, AF-149
| Citation | 414 So.2d 1184 |
| Decision Date | 11 June 1982 |
| Docket Number | No. AF-149,AF-149 |
| Parties | TOPEKA INN MANAGEMENT and Insurance Company of North America, Appellants, v. Sharon K. PATE, Appellee. |
| Court | Florida District Court of Appeals |
John J. O'Riorden of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
Alex P. Lancaster, Sarasota, for appellee.
The employer/carrier appeal from a workers' compensation order awarding wage-loss benefits to the claimant. Since this injury occurred on August 2, 1979, this appeal is governed by the provisions of Section 440.15(3)(b), Florida Statutes (1979). We affirm.
Claimant, a former waitress, suffered a compensable injury to her back when she slipped and fell while working in a coffee shop. As a result of this fall, she suffered a compression fracture of the first lumbar vertebrae. Her treating physician, Dr. Miller, assigned a maximum medical improvement date of February 18, 1980, and a permanent partial impairment to the body as a whole of 5%. He also advised the claimant to avoid very heavy lifting.
From the date of maximum medical improvement until April 18, 1980, claimant's only efforts to seek employment were weekly telephone calls to her former employer. Her reason for doing so was her expectation that she would, in fact, be able to return to her former position. Finally, tiring of waiting for an employment opportunity to open with her former employer, claimant got a job as a secretary with CETA beginning April 18, 1980. This was a full-time job at the minimum wage then prevailing. She continued in this position until August of 1980, when she quit to care for her convalescing husband, who was recovering from a heart attack. She then returned to full-time employment in October of 1980 at the Nursing Pavilion as a nurse's aide. This job, too, was minimum wage. In the interim between August and October, she had also worked at a Waffle House as a cook for one week. She continued as a nurse's aide until January of 1981, at which time she suffered another compensable injury to her back. As of the hearing date below, July 10, 1981, she had not yet recovered from the second accident. In his order, the deputy commissioner found that she was "... entitled to recover wage-loss benefits together with penalties and interest from the date of maximum medical improvement and continuing with a credit for all benefits unpaid." This appeal ensued.
Examining these facts on a month-to-month basis, as we must, [§ 440.15(3)(b)1, Fla.Stat. (1979) ] we find that the claimant has met her burden of establishing her entitlement to wage-loss benefits. Initially, we have no difficulty in determining that the claimant has suffered a wage loss for those two periods of time in which she worked as a CETA secretary and a nurse's aide, respectively. As both these jobs were clearly within her prescribed physical limitation, we can only conclude that she has accepted "employment commensurate with ... her abilities" [§ 440.15(3)(b)2] and, therefore, that her claimed wage loss during those two periods of time is the result of her compensable injury.
The employer/carrier argues that the claimant may not recover wage-loss benefits for the period of time between August, 1980, and October, 1980, for the record clearly indicates that she quit work in order to care for her convalescing husband who was recovering from a heart attack. Thus, they argue, she has not established "... that any wage loss claimed (for that period) is the result of the compensable injury." § 440.15(3)(b)2, Fla.Stat. (1979). Strictly speaking, her wage loss during this period of time was not solely due to her compensable injury. That fact, however, does not preclude her entitlement to wage-loss benefits. It is a cardinal rule of statutory construction that the entire statute under consideration, and not just isolated phrases and words, must be considered in determining legislative intent, and effect must be given to every part of the provision under construction and every part of the statute as a whole. See State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977). Section 440.15(3)(b)2 provides:
The amount determined to be the set salary, wages, and other remuneration the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from the sheltered employment. In the event the employee voluntarily limits his or her income or...
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