Western Union Telegraph Co. v. Perri

• Decision Date: 17 June 1987
• Docket Number: No. BO-357,BO-357
• Citation: 12 Fla. L. Weekly 1493,508 So.2d 765
• Parties: 12 Fla. L. Weekly 1493 The WESTERN UNION TELEGRAPH COMPANY, Appellant, v. Thomas J. PERRI and Division of Workers' Compensation, Appellees.
• Court: Florida District Court of Appeals

Page 765

508 So.2d 765

12 Fla. L. Weekly 1493

The WESTERN UNION TELEGRAPH COMPANY, Appellant, v. Thomas J. PERRI and Division of Workers' Compensation, Appellees.

No. BO-357.

District Court of Appeal of Florida First District.

June 17, 1987.

Errol S. Cornell, Miami, for appellant.

Mark L. Zientz, of Williams & Zientz, Coral Gables, and Joseph C. Segor, Miami, for appellees.

WENTWORTH, Judge.

Employer/carrier appeal a June 17, 1986 workers' compensation order by which wage loss benefits were awarded. Claimant cross-appeals. We affirm.

Claimant sustained industrial injuries from accidents which occurred in 1981 and 1982. After returning to work for employer claimant wore a beeper to receive messages regarding his part-time real estate/mortgage business. Employer advised claimant to discontinue wearing the beeper, but claimant refused and was suspended from his employment in October 1985. Claimant indicated that he then continued to pursue his own real estate/mortgage business and thus made no work search. Claimant received no income from this activity in either October, November, or December. However, a property closing which claimant handled in December resulted in payment of a commission in excess of $1600 on January 1, 1986.

The deputy found that claimant had limited his income by failing to work for employer in October and November, noting that it was employer's prerogative to require that claimant discontinue wearing the beeper. Concluding that employer was entitled to suspend claimant from employment, the deputy further indicated that claimant believed he was being discriminated against and that employer was attempting to "make life difficult for him." Characterizing claimant's feeling as a "reasonable belief," the deputy suggested that "claimant is not legally required to return to work for the employer with whom he was employed at the time of his injuries if he reasonably believes that the employment conditions are oppressive." The deputy therefore ruled that claimant "will only be denied wage loss until he made a reasonable and successful good faith effort to return to work full time effective December 1, 1985." Accordingly, wage loss benefits were awarded commencing December 1985.

Appellant contends (1) the deputy erred by entering an order which is internally inconsistent and contradictory; and (2) by finding that claimant was no longer limiting his income as of December 1985, and thus awarding wage loss benefits. On cross-appeal the claimant argues the deputy erred in finding a voluntary limitation of income and denying wage loss benefits for October and November 1985. Wage loss benefits are not necessarily precluded merely because they occur after a period of successful post-injury employment, even if such reemployment is terminated for cause. See Johnston v. Super Food Services, 461 So.2d 169 (Fla. 1st DCA 1984). Rather, Johnston indicates that the deputy should consider the totality of the circumstances in determining whether a...