Waterman v. Interstate Truckers, Inc., 88-1792

• Decision Date: 13 June 1989
• Docket Number: No. 88-1792,88-1792
• Citation: 14 Fla. L. Weekly 1413,545 So.2d 408
• Parties: 14 Fla. L. Weekly 1413 Larry WATERMAN, Appellant, v. INTERSTATE TRUCKERS, INC., and Liberty Mutual Insurance Co., Appellees.
• Court: Florida District Court of Appeals

Page 408

545 So.2d 408

14 Fla. L. Weekly 1413

Larry WATERMAN, Appellant, v. INTERSTATE TRUCKERS, INC., and Liberty Mutual Insurance Co., Appellees.

No. 88-1792.

District Court of Appeal of Florida First District.

June 13, 1989.

Alex Lancaster, P.A., Sarasota, for appellant.

Claire L. Hamner, of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees.

JOANOS, Judge.

Claimant appeals a workers' compensation order denying his claim for wage loss benefits. The sole issue presented for our consideration is whether the deputy commissioner erred in finding that the claimant voluntarily limited his income. We reverse.

On January 7, 1987, claimant injured his back in the course of his employment as a long haul truck driver. Claimant's education includes graduation from high school, and some course work at the junior college level. His work experience involves jobs as a cab driver and as a police officer for the City of Bradenton, in addition to his former job as a truck driver for Interstate Truckers, Inc., the employer herein.

The record reflects that claimant was released to light duty work, with lifting restrictions of fifty to seventy-five pounds. Dr. Kurzner, claimant's treating orthopedic surgeon, testified that it will be very difficult for claimant's back to heal fully, and any major lifting would aggravate his condition. The doctor further testified that claimant should not return to truck driving, or to any other comparable occupation which involves heavy lifting. According to Dr. Kurzner, claimant does not have a permanent impairment under the AMA Guides, which base impairment solely on range of motion. Dr. Kurzner testified, however, that claimant has an impairment rating of three to ten percent, under the provisions of the orthopedic guidelines.

Prior to his work release, claimant received a termination letter from the employer, Interstate Truckers. According to claimant's testimony, when Dr. Kurzner released him to temporary light duty, he applied for a few jobs, but found no one wanted to discuss employment with him during the pendency of his workers' compensation claim. He then obtained a job as a cab driver, and has not looked for other jobs since beginning employment with the cab company. Claimant testified that he had not gone to the Florida State Employment Office, because of his understanding that he was to remain on light duty until released by his doctor.

In the order denying wage loss benefits, the deputy found that claimant failed to conduct a job search "but rather accepted the first job offered to him." The deputy further found that claimant had voluntarily limited his income by accepting a job which was substantially below his "physical, vocational and mental ability."

The employee seeking wage loss benefits bears the initial burden of establishing that any wage loss claimed is the result of the compensable injury. § 440.15(3)(b)2, Fla.Stat. (1985); D.L. Amici Company v. Jackson, 444 So.2d 978, 979-980 (Fla. 1st DCA 1983), petition for review denied, 451 So.2d 848 (Fla.1984). The employee satisfies this initial burden by (1) presenting evidence of a good faith, though unavailing work search, Lakeland Construction Company v. Flatt, 433 So.2d 1253 (Fla. 1st DCA 1983); Lasher Milling Company v. Brown, 427 So.2d 1034 (Fla. 1st DCA 1983), or (2) obtaining and performing a full-time job. Coq v. Fuchs Baking Company, 507 So.2d 138 (Fla. 1st DCA 1987); City of Miami v. Simpson, 496 So.2d 899 (Fla. 1st DCA 1986), review denied, 506 So.2d 1043 (Fla.1987); Adart South Polybag Manufacturing, Inc. v. Goldberg, 495 So.2d 826 (Fla. 1st DCA 1986); Griner-Woodruff, Inc. v. Payne, 457 So.2d 1120 (Fla. 1st DCA 1984); Stahl v. Southeastern X-Ray, 447 So.2d 399 (Fla. 1st DCA 1984).

Once the employee presents evidence of a good faith, albeit unsuccessful, work search or evidence that he is engaged in full-time employment, the burden shifts to the employer to prove that the employee voluntarily limited his income. City of Miami v. Simpson, 496 So.2d at 901; ...