Sambo's v. Scott

417 So. 2d 759 | Fla. Dist. Ct. App. | 1982

Lead Opinion

THOMPSON, Judge.

The employer/carrier (E/C) appeal a compensation order contending there is no competent substantial evidence to support the deputy’s finding that the claimant sustained a loss of wage earning capacity.

The claimant injured her back in a com-pensable accident on January 6, 1978. Her treating physician found that the claimant had reached maximum medical improvement (MMI) on May 15, 1980 and had sustained a five to ten percent permanent partial impairment. The E/C paid temporary total disability (TTD) benefits to May 15, 1980 and paid ten percent permanent partial disability (PPD) benefits. In his order, the deputy found that under the circumstances the claimant made a satisfactory work search and was entitled to 55% PPD benefits based on loss of wage earning capacity. The deputy specifically found that the claimant had worked at Redi-Nurse, had applied for a job at Lum’s Restaurant, and had worked at several other places.

In order to constitute a proper basis for an award based on loss of wage earning capacity, the claimant’s work search must take place after she reaches MMI. Exxon Co. v. Alexis, 370 So.2d 1128 (Fla.1978). The record in this case reveals that all the jobs which claimant actually attempted to perform were obtained prior to MMI, including the job at Redi-Nurse which was specifically referred to by the deputy in his order. The record does not show that she applied for any jobs after she reached MMI with the exception of the job at Lum’s which, by her own testimony, was not within her capabilities, and with the possible exception of a job at a convenience store which again, by her own testimony, was not within her capabilities. She admitted making no work search whatsoever between September 1980 and March 20, 1981, the date of the final hearing. Her physical limitations are not such as would justify excusing her from an adequate work search.

The deputy’s finding that the claimant sustained a 55% loss of wage earning capacity is wholly unsupported by competent substantial evidence.

REVERSED.

MILLS, J., concurs. WENTWORTH, J., dissents.

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Dissenting Opinion

WENTWORTH, Judge,

dissenting:

I would affirm because the decisions disregarding work search efforts before maximum medical improvement are not in my opinion pertinent to this case in which claimant’s medical restrictions, treatment and symptomatic conditions did not change materially at the time of the stipulated date of maximum medical improvement. That date here apparently marked only the end of any expectation of change from the preceding two and a half years of conservative treatment for temporary disability, which did not involve surgery or other significant medical intervention.¹ The deputy, in measuring permanent loss, could therefore reasonably rely upon the doctor’s continuous restriction against work involving “any demands on her back,” and upon claimant’s experience in actually working in six different occupations for short periods during a two-year span. All of those jobs ended with physical incapacity (not negated by her physician) except one which required her to have a phone which she could not then afford. I find no admitted hiatus in work search except for six weeks preceding her October 1980 deposition, following exacerbation of her back and leg syndrome by a “sprained medial collateral ligament” requiring a splint. Interruption of this work search, serving only to measure incapacity, would not in any event have the same significance as would lack of continuity of search in connection with wage loss claims under statutory amendments following claimant’s accident.

The deputy’s award of 55% loss of wage earning capacity is sustained by his findings and the evidence on all pertinent factors affecting claimant.² Those facts included a seventh grade education and a 22-year employment history primarily in physical labor commencing in a cigar factory without evidence of disability until her back injury from lifting a large grease container in her work as a cook at Sambo’s. I find no reason to overturn the deputy’s explicit reliance on claimant’s credibility, good faith, and motivation, evidenced in part by her success in a recommended weight loss of 70 pounds. Nor would I discount a job application as admittedly inappropriate when the stated rejection is “We won’t take you with a brace.” The order and record seem to me to be patently inappropriate for appellate relief.

1 . See Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969).

2 . § 440.25, Florida Statutes (1978), citing eight critical factors preceding a reference to “evidence of good faith work search.”