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providing that where an argument is not presented to the JCC, it is not preserved for appeal
Summary of this case from Wilcox v. Ag Mart ProduceOpinion
No. 93-640.
January 31, 1995.
Appeal from the Judge of Compensation Claims.
Samuel Sheradsky, Coral Gables, for appellant.
Robert L. Teitler of Walton, Lantaff, Schroeder Carson, Miami, for appellees.
Mercedes Alpizar, claimant below, appeals a decision of the Judge of Compensation Claims denying temporary partial disability benefits for the period March 15, 1991, through April 29, 1991; denying interest and penalties on an award of unpaid compensation benefits for the period April 29, 1991, through November 4, 1991; and denying wage loss benefits for the period November 4, 1991, through November 1, 1992. Total Image Beauty Salon and State Farm Fire Casualty Company, the employer/carrier, have cross-appealed the award of temporary partial disability benefits for the period April 29, 1991, through November 4, 1991. Ms. Alpizar was injured in a compensable accident on February 14, 1991.
The e/c argue that Ms. Alpizar was not entitled to any temporary partial disability benefits for the period of April 29, 1991, through November 4, 1991, because of her failure to submit wage loss request forms. However, a thorough review of the record reveals no evidence that this argument was ever presented to the JCC. Therefore, the issue does not appear to have been preserved for appeal. See Robinson v. Shands Teaching Hospital, 625 So.2d 21, 23 (Fla. 1st DCA 1993). Accordingly, we affirm the award of benefits for the period of April 29, 1991, through November 4, 1991.
Ms. Alpizar has appealed the denial of interest and penalties on the benefits for the same time period. The JCC denied interest and penalties because of the claimant's failure to submit her wage loss forms. We interpret this as a conclusion that the e/c were unable, for reasons beyond their control, to calculate the correct AWW without those forms. Ms. Alpizar was employed as a manicurist. She earned a base salary of $100 a week and tips of approximately $300 a week before her injury. E/C paid temporary disability benefits for this period calculated upon the $100 base salary, which was the information contained in Ms. Alpizar's wage statement. Until Ms. Alpizar filed her claim for an adjustment of her AWW to account for her tip income, the e/c had no way to know the amount of that income. Under Florida Statutes, section 440.20(7) (1991), the e/c is not liable for interest and penalties when a nonpayment results from conditions beyond the control of the e/c. Accordingly, we affirm the denial of interest and penalties.
The Order of the JCC states that he denied wage loss benefits for the period November 4, 1991, through November 1, 1992, based upon claimant's failure to submit job search forms. Ms. Alpizar argues that the JCC erred because she did in fact conduct an adequate job search. The e/c respond, correctly, that the JCC also found that Ms. Alpizar received but failed to return her wage loss request forms. There is competent substantial evidence in the record to support this finding. A claimant may not be awarded wage loss benefits for a period in which no request form has been submitted. Old Cove Condo v. Curry, 511 So.2d 666 (Fla. 1st DCA 1987). Accordingly, we affirm the denial of wage loss benefits for the period of November 4, 1991, through November 1, 1992.
Finally, competent substantial evidence supports the conclusion of the JCC denying temporary partial disability benefits for the period of March 15, 1991, through April 29, 1991. Dr. Sanchez-Lopez released Ms. Alpizar to return back to work with no restrictions on March 2, 1991. She did not come under the care of Dr. Barrios until April 29, 1991. There was no evidence that the claimant's injury had a direct causal connection to her decreased earnings after her return to work. Claimant's decreased earnings appear to have been the result of economic conditions and not medical conditions. Therefore, the JCC was correct in stating that there was no medical testimony whatsoever to substantiate Ms. Alpizar's entitlement to benefits in this interim period.
Accordingly, the decision of the JCC is AFFIRMED.
WEBSTER, J., concurs.
MINER, J., concurs in part and dissents in part.
The JCC denied the claim for temporary total disability or temporary partial disability benefits from March 14, 1991, through April 29, 1991, on the ground that "there is no medical evidence to substantiate her entitlement." I would reverse this portion of the JCC's order because such an explanation is legally insufficient to support the denial of benefits.
Claimant was injured on February 14, 1991, when she slipped in a puddle of water while working as a manicurist and pedicurist. Claimant was unable to work for about three weeks after her accident. Dr. Sanchez-Lopez opined that claimant could return to work on March 5, 1991, and was able to perform her regular duties without restriction. Prior to her accident, claimant was the only manicurist/pedicurist employed by the employer. Because claimant was unable to work for three weeks the employer hired another to fill her position. Claimant testified that upon her return to work the employer was directing most of the business to her replacement. Claimant worked approximately five more weeks before changing jobs. The JCC found that claimant earned $400.00 per week prior to her accident and only $100.00 per week after her return to work.
Generally, an award of TTD or TPD benefits requires medical evidence of claimant's inability to work, or evidence of a good faith work search. Philpot v. City of Miami, 541 So.2d 680, 682 (Fla. 1st DCA 1989). Nonetheless, the denial of such benefits should be reversed because the JCC's order suggests the application of an incomplete and therefore erroneous legal test for entitlement to TTD or TPD benefits. Under Florida's workers' compensation law, "disability" is an economic concept, i.e., wage loss resulting from a compensable injury, not a medical concept. See § 440.02(11), Florida Statutes (1991). Thus, injuries that result in medical disability but no wage loss will not give rise to an award of wage loss benefits. The inverse corollary of this rule is that where an injury results in no physical limitation but results in actual wage loss, the claimant has sustained a "disability" under chapter 440. The applicable statutory provision is Section 440.15(4), Florida Statutes (1991), which provides in pertinent part:
(b) Whenever a temporary partial wage loss benefit as set forth in paragraph (a) may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury. It shall also be the burden of the employee to show that his inability to obtain employment or to earn as much as he earned at the time of his industrial accident is due to physical limitation related to his accident and not because of economic conditions or the unavailability of employment or his own misconduct.
Although the statute requires that the claimant's diminished earning capacity must be "due to" the physical limitation, the claimant need only show "that his physical limitations subsequent to his accident were a contributing causal factor in his alleged wage loss." Nowicki v. St. Petersburg Kennel Club, 558 So.2d 181 (Fla. 1st DCA 1990) (citing Glades Correctional Institution v. Bukowski, 528 So.2d 58, 59 (Fla. 1st DCA 1988)). The existence of a causal connection between claimant's physical limitation and loss of earnings is a factual question to be determined by the JCC based upon the totality of the circumstances. Davis v. Broward County Health Department, 570 So.2d 371 (Fla. 1st DCA 1990); see also Coplin v. State, Dept. of HRS, 627 So.2d 1282, 1286 n. 2 (Fla. 1st DCA 1993) (citing Williams Roofing, Inc. v. Moore, 447 So.2d 968, 972 (Fla. 1st DCA 1984)). Examining the present facts under the appropriate rule of law, the JCC could have found that even though claimant was able to return to work without restriction or without physical limitation after three weeks, the physical limitation suffered during the initial three week period prompted the employer to hire a replacement worker and contributed to the division of the workload upon claimant's return to duty, thereby resulting in claimant's diminished earnings. Stated alternatively, the JCC could have found that claimant's physical inability to work for three weeks due to her compensable accident was an element in the causal chain resulting in or contributing to her subsequent wage loss. I would direct the JCC to reconsider this issue in light of the cited authority.
On another point, the JCC awarded TPD benefits for the period April 29, 1991, through November 4, 1991. I would affirm this award but remand for reconsideration of the JCC's denial of statutory penalties and interest on the award consistent with Hulbert v. Avis Rent-A-Car Systems, 469 So.2d 235 (Fla. 1st DCA 1985).