405 So. 2d 280 | Fla. Dist. Ct. App. | 1981
Lead Opinion
The employer/carrier appeal, contending that the deputy erred in finding claimant to be temporarily and totally disabled from 9 March through 17 May 1980. We agree and reverse.
When there is no medical evidence that a claimant is unable to work, claimant must conscientiously seek work to establish temporary total disability and must also show either that his or her work search was successful and that he or she was unable to perform the work or that the work search was unsuccessful due to his or her disability, rather than to unavailability of work. Lehigh Corp., et al. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981).
There is no medical evidence that Lowery was unable to work.
Lowery’s testimony clearly shows that she did not make a conscientious effort to obtain work.
Q. Okay. Now, this job that you just got last Tuesday, you say you haven’t worked since you left the Sanford Home?
A. No.
Q. Okay. Had you looked for work anywhere?
A. Yes.
Q. Where did you look?
A. I went to the unemployment place to get a ... to look for a job and.. . .
Q. You didn’t find one?
A. No.
Q. Do you remember when you went to the unemployment place. . . .
THE COMMISSIONER: Is that the regular State Employment Office, Ms. Lowery?
A. I don’t know the ... I don’t know exactly the date.
MR. DAZE: Okay.
A. What?
THE COMMISSIONER: Did you say you went to the regular State Employment Office?
A. Yes.
THE COMMISSIONER: To get a job? A. Yes.
THE COMMISSIONER: When did you do that?
A. I don’t know the exact date when I went.
THE COMMISSIONER: I mean just approximately, can you relate it to the time*282 of the accident? How many weeks, months after the accident as you can best recall?
A. It might have been a month, I’m not sure.
THE COMMISSIONER: Something around that?
A. Yes.
MR. DAZE: Did you ever try to go back to the Sanford Home? Did you ask to go back to work?
A. No, I didn’t.
She did not attempt to return to work for her employer. Her testimony concerning her work search was non-specific, although responding to leading questions by the Deputy.
Claimant totally failed to adduce testimony whether her job search was unsuccessful because of her disability or because a job was unavailable.
We reverse because there is no competent substantial evidence supporting the Deputy’s award of temporary total disability benefits from 9 March through 17 May 1980.
Dissenting Opinion
dissenting.
I respectfully dissent. The majority now reverses the d.c.’s order directing the e/c to pay claimant TTD benefits for a period of time slightly more than two months. I agree with appellant that the medical testimony alone was insufficient to support an award of TTD. Medical testimony, however, is not the only criterion in determining whether a work search is adequate. The rule is that in the absence of medical testimony showing a claimant’s inability to work, TTD benefits may yet be recovered if the claimant conducts a diligent work search revealing his or her inability to work. See Commercial Carrier Corp. v. Bennett, 396 So.2d 847 (Fla. 1st DCA 1981), and Stewart-Decatur Security v. Kropp, 396 So.2d 256 (Fla. 1st DCA 1979). It is true that the claimant in the case before us did not begin her work search by a return to her former place of employment, but I am unaware of any decision overturning a deputy’s finding of an adequate work search simply because the record on review revealed that the employee did not first return to work for his or her employer. Cf. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981), in which we held the evidence relating to a search was insufficient because the employee made no effort to return to any type of work, including that with her former employer.
I see no reason why, under the circumstances, an award limiting TTD to only nine weeks’ duration should be reversed since claimant testified that within a month following her injury, she applied for work at the local employment office, a place which presumptively should be capable of affording claimant with a greater number of employment opportunities than would only one prospective employer.
In my judgment, there is no broad rule which may be applied to any conceivable factual situation in every case. Each case must be judged on its own record. Some of the factors to be considered in determining the adequacy of a work search, when there is no supporting medical testimony, would include the length of the TTD award, and whether or not there were circumstances unrelated to a claimant’s purported physical limitations which resulted in his inability to find work or to hold a job. Given such an analysis, a TTD award of two years’ duration, if supported by evidence showing only one or two inquiries with potential employers, would no doubt be determined excessive, while an award more restricted in length might be sustained.
Although I agree that appellants may well be correct in their assertion that the evidence in the instant case would probably not satisfy standards that have been developed in determining the adequacy of a work search regarding permanent disability, see Spencer v. Chai Convalescent Home, Inc., IRC Order 2-2768 (April 21, 1975); Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975); Carol Nursing Home
Finally, I would not disturb the deputy’s implicit factual finding that the evidence in the instant case was credible and sufficient to establish a good faith work search, since such decisions are normally left to the informed discretion of the deputy commissioners. Cf. Pearson v. City of Miami Beach, 399 So.2d 1135 (Fla. 1st DCA 1981).
For the reasons stated, I would allow the deputy’s TTD award to stand.
