Regency Inn v. Johnson

This workers’ compensation appeal presents again a challenge to the sufficiency of work search evidence in support of an award of wage loss benefits. We affirm the order finding that claimant met her obligation under the statute, which provides “the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury.” (e.s.) § 440.15(S)(b)2, Florida Statutes.

The facts detailed below permit a conclusion that claimant would not have suffered the wage loss in question if her compensable injury had not occurred. We therefore find the statutory requirement of causal connection is met, even assuming, as appellant argues, that claimant did not prove directly that jobs were available which she could not get because of her physical limitations. The appellant employer/carrier relies upon LeHigh Corporation v. Byrd, and other recent decisions based on the stated rule that a work search which is unsuccessful due to unavailability of work precludes compensation because such evidence does not prove a loss due to com-pensable disability. Although we do not intend to disagree with the results reached in all of those prior cases (which may involve facts or distinguishing statutory standards otherwise substantiating the decisions reached), we do recognize that their stated rationale conflicts with our construction and application of the statutory language first above quoted in the present case. For the purpose of wage loss entitlement we now conclude the LeHigh rule is inapplicable, and find no necessity in this case for discussion of its merit in the context of compensation for total disability, permanent or temporary.

Claimant was injured on August 25,1979, during the course and scope of her duties as a maid at the Regency Inn. Prior to her accident, the claimant suffered from a preexisting injury to the pelvic area which caused a deformed left leg. The deputy accepted claimant’s testimony that she had not been limited by her prior condition except for limping, and that she had always been able to carry out her occupational duties without pain, discomfort or limitation. The record indicates that the appellee sustained a 25% impairment, 5% of which was attributable to the industrial accident.

Claimant was paid $72.50 temporary total disability benefits from August 26, 1979, through December 2, 1979, and from January 3, 1980, through August 4, 1980. Johnson subsequently filed a claim for 100% wage loss benefits for the period beginning August 4, 1980, through the December 10 hearing. The deputy commissioner denied this claim by order of April 24, 1981, based on absence of work search. On May 11, 1981, a hearing was held to decide a claim for wage loss benefits for the period December 10, 1980, through April 10, 1981. The deputy commissioner determined that Johnson had made a good faith effort to obtain employment and that she had been unsuccessful in obtaining employment. The claimant had a limited employment history, having worked only in domestic or related labor. Her treating physician indicated that, as a result of the injury, appellee had to seek lighter employment. Claimant had made a job search during the controverted time at the following places:

1. Florida State Employment Office (January 14,15, 20, March 15, 20, 28);

2. Eckerd Drug Store (March 14,18, 20);

3. Exchange Bank of Polk County (March 10, 15);

4. First Federal Savings.

The record also contains a list showing additional places of employment at which appel-lee sought a job.

On June 5,1981, the deputy commissioner entered an order awarding the claimant 100% wage loss benefits for the period from December 10, 1980, through April 10, 1981. The employer then filed this timely appeal, raising only the question of whether there was sufficient evidence to sustain the deputy commissioner’s order requiring payment of wage loss benefits to the claimant.

Based on claimant’s testimony that prospective employers stated “they wasn’t hiring,” appellant contends claimant’s work search was necessarily inadequate and “her inability to obtain work was due to unavailability of work rather than Johnson’s injury.” (e.s.) The record, however, does not indicate any lack of diligence or good faith such as might conceivably result from an extremely restricted or illogical search. We conclude accordingly that the deputy properly applied those tests within the parameters for work search recently restated in Wright v. Gulf and Western Food Products, 401 So.2d 1316, 1318 (Fla.1981).

We believe that the reasoning and authorities set forth in the dissenting opinion in Lake County Commissioners v. Wal-burn, 409 So.2d 153 (Fla. 1st DCA 1982), are dispositive of the issue presented in this case. We also note that the statutory language on wage loss, supra, stands in contrast to that which governs a claimant’s burden in establishing permanent total disability, i.e., “the burden shall be upon the employee to establish that he is not able uninterruptedly to ... work due to physical limitations,” and no compensation of that character shall be payable “if the employee ... is physically capable of . .. gainful employment.” § 440.15(l)(b), Florida Statutes. Since the LeHigh rule would effectively limit compensable wage loss to that which results from physical incapacity (as opposed to economic incapacity caused by «job disruption accompanying industrial injury), the application of that rule to wage loss would disregard the apparent intent of the legislative standards on causal relation which are framed so distinctly for the two classes of benefits. For wage loss the statute provides simply for general causal relation by covering any such loss which “is the result of the . .. injury.” If the intent had been to require wage loss from physical incapacity for work (independent of job availability) as an absolute condition to. compensation for wage loss, the alternative language would surely have been used. The definition of disability in the act also utilizes a general causal relation concept by referring simply to “incapacity because of the injury to earn .. .,” and not to incapacity from physical limitations of the injury. Certainly nothing in the statutory framework for wage loss awards evinces an intent to abandon that element of the well settled standard for capacity to earn which takes into account “[ijnability to obtain work of a type which claimant can perform in light of his after-injury condition,” Walker v. Electronic Products & Engineering Co., 248 So.2d 161, 163 (Fla.1971).

We find, accordingly, that the rule stated in LeHigh and its progeny should not govern the evaluation of work search standards for wage loss, and the award by the deputy in this case is therefore affirmed.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.

. 397 So .2d 1202 (Fla. 1st DCA 1981). That opinion states a claimant must show either (1) “that his work search was successful, but that he was unable to perform the work [or (2)] he would have to show that his work search was unsuccessful due to his disability (rather than unavailability of work).” 397 So.2d 1204. Cited for this proposition are Teleprompter, Inc. v. Springer, IRC Order 2-3439 (May 19, 1978), and Westco Aluminium, Inc. v. Johnson, 8 FCR 170, cert. den., 289 So.2d 738 (Fla. 1974). In each of these cases the unavailability of work in question related to a period after claimant had returned to work and lost employment in a general lay-off unrelated to his capabilities, or had relinquished employment for reasons unrelated to his injury or capability. Plainly, such specific proof permits a conclusion that unemployment is not injury-related, quite consistent with a general rule that causal relation may be shown through economic dislocation as well as physical incapacity.

. See also Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982); and Burger King Corp. v. Stark, 401 So.2d 1173 (Fla. 1st DCA 1981). To the extent that Wal-burn (in addition to reversing total disability benefits) found insufficiency of work search for wage loss “because work was unavailable,” 409 So.2d at 154, our decision in the case at bar necessarily recedes from that portion of the opinion in principle, even if distinguishing facts might arguably justify the majority decision there. This conflict serves as the basis for treatment of the current case by the court en banc pursuant to Rule 9.331.

. Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982).

. See Ken Lones Landscaping v. Tucker, 395 So.2d 272 (Fla. 1st DCA 1981), for application of the physical incapacity standard to temporary total disability. We do not here consider all distinctions which may affect loss of earnings before and, as in the present case, after maximum medical improvement.