KIM MCDOWELL, APPELLANT,
v.
FLORIDA POWER CORPORATION, APPELLEE

Fla. 1st DCA | 1995-07-03
No. 94-0071
BARFIELD and ALLEN, JJ., concur.
658 So. 2d 575 Florida District Court of Appeal, First District (1995)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Kim McDowell appealed a workers' compensation order denying temporary partial wage loss benefits from May 1990 to December 1991. The Florida appellate court affirmed most findings but reversed the denial of temporary partial disability benefits, holding that an employee may be excused from work search obligations when the employer fails to advise of such requirements and that physician testimony regarding work restrictions supported benefit entitlement.


Holding

The court reversed the denial of temporary partial wage loss benefits for the period of May 4, 1990 through December 20, 1991, holding that an employee is excused from work search obligations when the employer or carrier fails to advise of such obligations, and that Dr. Ball's unrefuted testimony regarding McDowell's work limitations supported entitlement to benefits during this period.


Headnotes

[1] A claimant is excused from the obligation to undertake a good faith work search and submit requests for temporary partial wage loss benefits when the employer or carrier…

[2] A judge of compensation claims' finding is not supported by competent and substantial evidence when it overlooks unrefuted physician testimony regarding a claimant's work…

Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“A claimant is excused from the obligation to undertake a good faith work search and to submit requests for temporary partial wage loss benefits where the employer or carrier fails to advise the claimant of the obligation in this regard.”

Establishes the controlling legal principle that excuses claimants from work search requirements when not properly advised by employer

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

McDowell, a casual laborer for Florida Power Corporation, was injured at work in 1989 when a coworker pulled her chair from under her as she was sitti…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SMITH, Senior Judge.

SMITH, Senior Judge.

Kim McDowell, the Appellant, raises five issues on appeal from an order of the Judge of Compensation Claims. Finding competent and substantial evidence in the record to support all but one of the challenged findings, we affirm the order under review except its denial of temporary partial wage loss benefits from May 4, 1990 to December 20, 1991, which we reverse and remand for reconsideration.

Florida Power Corporation (FPC) employed McDowell at the time of the injury as a casual laborer. McDowell was injured at work while on a scheduled break when a fellow employee pulled from under her the chair in which she was attempting to sit, causing her to fall on the concrete floor. While being treated for her injury, McDowell continued to work for FPC until December 22, 1989 when she was released as part of a general layoff. FPC rehired McDowell on January 8, 1990 to perform casual labor and released her again five days later. FPC again rehired McDowell on February 26 1990 to work in its coal yard as a temporary laborer until May 4, 1990. During this final period of employment, McDowell spoke with FPC’s Human Resources Representative concerning her injury and requested payment for her treatment with Dr. Ball, a chiropractic physician.

Although it is not clear when McDowell hired counsel in this matter, she filed a claim for benefits on October 2, 1991. McDowell testified that she was not aware of the obligation to perform a work search until her attorney informed her. After being informed by her attorney of her obligation to perform a work search, McDowell did so and submitted forms therefor beginning December 21, 1991.

Following a hearing on this matter, the JCC found that McDowell suffered a compensable occupational injury from which she reached MMI on February 13, 1992. The JCC’s findings in this regard are supported by competent and substantial evidence in the record. Upon these findings the JCC awarded, inter alia, temporary partial disability benefits from December 21, 1991 through February 13, 1992, the date McDowell reached MMI. The JCC found no entitlement to benefits prior to December 21, 1991 since no forms had been filed prior to that date.

A claimant is excused from the obligation to undertake a good faith work search and to submit requests for temporary partial wage loss benefits where the employer or carrier fails to advise the claimant of the obligation in this regard. Scott v. Bisanti Services, Inc., 634 So. 2d 292 (Fla. 1st DCA 1994); Turner v. Rinker Materials, 622 So. 2d 80 (Fla. 1st DCA 1993); Coleman v. Champion International, Inc., 552 So. 2d 1196 (Fla. 1st DCA 1989); DeFrees v. Colt & Dumont, 483 So. 2d 848 (Fla. 1st DCA 1986). Insofar as the denial of wage loss benefits from May 4,1990 through December 20,1991 was based on McDowell’s failure to submit work search forms for that period, the order does not accord with settled law.

The JCC’s order also found no entitlement to benefits prior to December 21, 1991 because “no physician was of the opinion the claimant had limits on her activities.” We find that the JCC evidently overlooked the testimony of Dr. Ball that during the time he treated McDowell, from November 29, 1989 through April 3, 1992 he did not think that “she could have returned to the job that she was doing.” Dr. Ball also stated that his records for November 11, 1991 reflect his notation, “no work until further notice.” In light of Dr. Ball’s unrefuted testimony, the JCC’s finding in this regard is not supported by competent and substantial evidence.

We therefore reverse the denial of benefits and remand for a reconsideration of the claim for temporary partial wage loss benefits for the period of May 4, 1990 through December 20, 1991.

BARFIELD and ALLEN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw