University of West Florida v. Nall

• Decision Date: 29 September 1981
• Docket Number: No. ZZ-173,ZZ-173
• Citation: 404 So.2d 381
• Parties: UNIVERSITY OF WEST FLORIDA and Division of Risk Management of the State of Florida, Appellants, v. Ollie E. NALL, Appellee.
• Court: Florida District Court of Appeals

Page 381

404 So.2d 381

UNIVERSITY OF WEST FLORIDA and Division of Risk Management of the State of Florida, Appellants, v. Ollie E. NALL, Appellee.

No. ZZ-173.

District Court of Appeal of Florida, First District.

Sept. 29, 1981.

Rehearing Denied Oct. 28, 1981.

J. Nixon Daniel, III, of Beggs & Lane, Pensacola, for appellants.

Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellee.

PER CURIAM.

The employer/carrier contend on this appeal that the deputy commissioner's award of 60% permanent partial disability based on loss of wage earning capacity was in error in that the claimant made no work search, and they further contend that the deputy commissioner's disallowance of credit for temporary total disability payments was erroneous. We agree that the failure to establish a work search precludes the disability award based upon loss of wage earning capacity, and we further find that based upon recent decisions of this court not available to the deputy commissioner at the time of his order the case should be remanded for further consideration of whether the employer/carrier are entitled to the credits sought.

Claimant, a 35-year old laborer with an eighth grade education, was injured in a July 11, 1977 accident while operating a riding lawn mower. His injuries subsequently required surgery to his cervical spine and upon recovery his physician, Dr. Eyster, an orthopedic surgeon, found a 15% permanent partial impairment to the whole body, and restricted him to lifting weights in excess of ten pounds, repetitively, working with his arms overhead, or working in a position where it was necessary to extend his head and look up repeatedly. Claimant has worked intermittently with the University since the accident, continuing in his same employment, although his work is of a lighter nature than prior to the accident. He is unable to use the riding lawn mower hedge clippers, shovel, or to do any strenuous work. His present employment consists primarily of driving a light truck doing mostly errands, and other work which he described as in the nature of supervisory work.

In his order the deputy commissioner, after reviewing the claimant's education, work history, and the evaluation made by the employer's vocational expert, considered in the light of his injuries and present physical condition found: "Considering these factors, his ability to compete in the open labor market has been severely reduced by his industrial injury and if required to look for work outside his present employment, he would experience much difficulty." He further found that as a practical matter, the claimant would be "limited to such work as a self-service filling station attendant and a parking lot attendant." He then made a comparison between the minimum wage applicable to such employment, as compared with claimant's earnings at the time of the injury, and concluded that claimant had sustained a wage earning capacity loss.

We fully agree with the deputy's finding that the claimant has limited employment capabilities. However, the rule is very clear that in order to be entitled to permanent disability in excess of his physical impairment, the claimant must not only establish that his loss of wage earning capacity exceeds his anatomical disability, but must test such wage earning capacity in the open labor market by a good faith work search, after MMI has been reached. Exxon Company v. Alexis, 370 So.2d 1128 (Fla.1978); Pasco County v. Green, 382 So.2d 798 (Fla. 1st DCA 1980); and Suave Shoe Corporation v. Suarez, 396 So.2d 777 (Fla. 1st DCA 1981). Here there...