Vida Appliances, Inc. v. Gates

• Decision Date: 30 June 1982
• Docket Number: No. AI-292,AI-292
• Citation: 416 So.2d 1186
• Parties: VIDA APPLIANCES, INC. and Zurich-American Insurance Company, Appellants/Cross-Appellees, v. James GATES, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1186

416 So.2d 1186

VIDA APPLIANCES, INC. and Zurich-American Insurance Company, Appellants/Cross-Appellees, v. James GATES, Appellee/Cross-Appellant.

No. AI-292.

District Court of Appeal of Florida First District.

June 30, 1982.

Rehearing Denied Aug. 4, 1982.

Albert P. Massey, III, of Pyszka & Kessler, P. A., Fort Lauderdale, for appellants/cross-appellees.

Dennis M. Usdan of Abramowitz, Altman & Usdan, Plantation, for appellee/cross-appellant.

ERVIN, Judge.

In this workers' compensation appeal, we find that claimant James Gates' October 1, 1979 accident entitles him to full wage-loss benefits, because he did not limit his income or fail to accept employment, and that under the facts of this case, the deputy commissioner correctly included vacation pay in the computation of claimant's average weekly wage.

Fifty-nine year old James Gates, the appellee/cross-appellant herein, worked for Vida Appliances as a delivery man. While unloading a truck he slipped and fell, suffering permanent anatomical impairment. Gates had eleven years of schooling but no high school diploma. He had worked only in various menial tasks unloading trucks, painting, doing maintenance work, as a stock clerk, and laboring at construction sites.

Upon reaching maximum medical improvement, his doctor advised that he could return to the job market but that he was restricted to light work. Despite occasional yet persistent pains, he made a rather extensive job search to numerous motels, a mall, supermarket, the state employment service, and other locations. His former employer, Vida Appliances, refused to rehire him for light work. The other job sites at which he applied lost interest in him as soon as he indicated that he was seeking light work, and the state employment service similarly was unable to assist him. The deputy commissioner found this to be a competent, good faith work search.

At the hearing the employer/carrier (e/c) presented testimony by a vocational counselor who indicated that he had conducted a two-hour interview with Gates and reviewed his medical records. The counselor felt certain that Gates was employable in the Broward County job market in a light maintenance job making $175 per week and that such jobs were available. Candidly, the counselor admitted that he knew of no specific jobs available to the claimant, nor had he actually canvassed the job market.

The deputy commissioner also received testimony that the claimant made $180 per week before his injury, received uniforms worth $10 per week from his employer and was paid in cash an additional $360 during a two-week period preceding his injury. According to the employer's secretary, this sum represented vacation pay which Gates was taking in the form of cash in lieu of actual vacation time off. The secretary stated that this was a common practice among the employer's truck drivers, and, unlike all other fringe benefits, this was the only benefit, if paid in cash, that was subject to social security and withholding taxes, thereby making it similar to wages.

Based on the foregoing, the deputy commissioner concluded that Gates had an average weekly wage of $220 per week, but that due to the claimant's employment background, age, education and anatomical impairment, the claimant only had a wage-earning ability of $125 per week. Gates was found to be entitled to wage-loss benefits, but the monthly benefit payments were to be computed based upon his earning ability. On appeal the e/c argues that the finding of claimant's earning capacity should have been $175 due to the vocational counselor's testimony, and that the average weekly wage amount could have only been computed by erroneously considering vacation pay. The claimant's cross-appeal counters that the inclusion of the $125 per week earning ability finding in any computation to determine wage-loss benefits was error.

The computation of the claimant's earning ability and the correctness of its application to any determination of actual wage-loss benefits are issues that appear inextricably linked. By our finding that the claimant's cross-appeal is meritorious, the correctness of the deputy's determination of the amount of claimant's wage-earning capacity is superfluous. This is because the deputy commissioner found that the claimant had conducted a good faith job search, and there is substantial competent evidence for that view.

Section 440.15(3)(b)(2), Florida Statutes (1979), states that the salary, wages, or other remuneration that a claimant might have earned shall be treated as if they had actually been earned. However, this statutory mandate does not become effective, unless it can be shown that the claimant voluntarily limited his income, by not conducting a competent, good faith job search, or unless he fails to accept employment within his abilities. Since the claimant conducted a competent, good faith job search, the burden is upon the employer to demonstrate that the claimant has refused work or has somehow voluntarily limited his income. Pompano Roofing Co., Inc. v. O'Neal, 410 So.2d 971, 972 (Fla. 1st DCA 1982). ¹

This view is totally consistent with the Florida Supreme Court's most recent opinion on the subject of work searches in which the court noted that after a claimant demonstrates "some effort" to obtain work within his limitations, the burden shifts to the employer to demonstrate that suitable employment is available. Wright v. Gulf & Western Products, 401 So.2d 1316, 1318 (Fla.1981); see also Flesche v. Interstate Warehouse, 411...