No. 95-2314 | Fla. Dist. Ct. App. | Nov 19, 1996
Concurrence in Part
concurring and dissenting.
Although I concur in most of the majority’s decision, I write to express my disagreement with that portion affirming the application of deemed earnings for the period from September 30, 1994, through October 31, 1994. I would reverse the application of deemed earnings for that one-month period, because the employer and its insurance carrier (collectively, the E/C) failed to satisfy their burden in regard to the application of the deemed earnings provision.
The evidence was undisputed that Donahue could not return to his former employment as a truck driver because of his compensable injuries. Because Donahue satisfied his burden of showing that his compensable physical limitation was a causative factor of his wage loss, the burden shifted to the E/C to show the contrary. Tampa Elec. Co. v. Bradshaw, 477 So. 2d 624" court="Fla. Dist. Ct. App." date_filed="1985-09-24" href="https://app.midpage.ai/document/tampa-elec-co-v-bradshaw-1722703?utm_source=webapp" opinion_id="1722703">477 So.2d 624, 629 (Fla. 1st DCA 1985).
The only evidence the E/C offered to satisfy its burden was that Donahue refused to perform a full-time job offered him in the parts room. Nevertheless, the record demonstrates, and the E/C concedes, that the job was no longer available after Donahue’s termination on September 30, 1994, because he was replaced with another individual who could perform the job. Thus, the E/C failed to satisfy its burden. See Delchamps v. Page, 659 So. 2d 341" court="Fla. Dist. Ct. App." date_filed="1995-04-11" href="https://app.midpage.ai/document/delchamps-v-page-1892860?utm_source=webapp" opinion_id="1892860">659 So.2d 341, 343 (Fla. 1st DCA 1995) (E/C must show that at least one job opening
Because nothing in section 440.15(3)(b), Florida Statutes (Supp.1988), or the cases the E/C cited, Bright v. City of Tampa, 546 So. 2d 1122" court="Fla. Dist. Ct. App." date_filed="1989-07-13" href="https://app.midpage.ai/document/bright-v-city-of-tampa-1838544?utm_source=webapp" opinion_id="1838544">546 So.2d 1122 (Fla. 1st DCA 1989); Bado v. Canteen Corp., 513 So. 2d 1364" court="Fla. Dist. Ct. App." date_filed="1987-10-22" href="https://app.midpage.ai/document/bado-v-canteen-corp-1708329?utm_source=webapp" opinion_id="1708329">513 So.2d 1364 (Fla. 1st DCA 1987); Wilson v. Volusia County School Board, 513 So. 2d 671" court="Fla. Dist. Ct. App." date_filed="1987-09-09" href="https://app.midpage.ai/document/sims-v-state-1708257?utm_source=webapp" opinion_id="1708257">513 So.2d 671 (Fla. 1st DCA 1987) (Wentworth, J., concurring), support application of deemed earnings for periods in which the claimant has met his or her burden and the E/C has not, I would reverse the application of deemed earnings after Donahue’s termination on September 30, 1994. Moya v. Palm Beach County Sch. Bd., 627 So. 2d 1307" court="Fla. Dist. Ct. App." date_filed="1993-12-10" href="https://app.midpage.ai/document/moya-v-palm-beach-county-school-board-7676087?utm_source=webapp" opinion_id="7676087">627 So.2d 1307 (Fla. 1st DCA 1993).
Lead Opinion
At issue in this workers’ compensation ease is appellant’s entitlement to wage-loss benefits during certain periods before and after termination of his employment with appellee CTL Distribution. We affirm that portion of the order on appeal awarding wage-loss based upon deemed earnings from August 28,1994, to October 31,1994, because that award is supported by competent substantial evidence. The employer concedes, however, that deemed earnings may not be properly applied to wage-loss for periods of time after October 31, 1994. Accordingly, the allowance of deemed earnings for those periods after October 31, 1994, is reversed and the case is remanded for further proceedings.