Brosnan v. Sourbeck Roofing, Inc.

578 So. 2d 460, 1991 Fla. App. LEXIS 3839, 1991 WL 59997
CourtDistrict Court of Appeal of Florida
DecidedApril 23, 1991
DocketNo. 90-1918
StatusPublished
Cited by2 cases

This text of 578 So. 2d 460 (Brosnan v. Sourbeck Roofing, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brosnan v. Sourbeck Roofing, Inc., 578 So. 2d 460, 1991 Fla. App. LEXIS 3839, 1991 WL 59997 (Fla. Ct. App. 1991).

Opinion

JOANOS, Judge.

This is an appeal and cross-appeal from a workers’ compensation order. The claimant challenges the denial of his claim for wage loss benefits based on a deemed wage earning capacity during the period the claimant voluntarily limited his income by enrollment in a vocational rehabilitation program. The employer/carrier cross-appeal an award of fifty-two weeks of rehabilitation services and rehabilitation temporary total disability (TTD) benefits, alleging the employer/carrier had already provided twenty-six weeks of rehabilitation services and rehabilitation TTD. We reverse.

Claimant suffered an industrial accident and injury on August 25, 1989, while employed as a roofer, earning $9.00 per hour as a working foreman. Claimant’s original injuries included two broken heels, damage to his left knee, and fractured vertebrae. In February 1985, after a recuperative period, but before reaching maximum medical [461]*461improvement, claimant returned to work for the employer. His job duties involved answering the telephone and running errands, for which he was paid $6.00 per hour. In 1986, claimant suffered a re-injury which ultimately required further surgery. The parties stipulated that claimant reached maximum medical improvement as of August 16, 1988, with a permanent impairment which precluded his returning to his former occupation. Claimant looked for other employment from October 1988 until August 1989, but received no job offers.

The record reflects that employer/carrier provided claimant with vocational services designed to assist his return to gainful employment. After vocational testing revealed that claimant performed poorly in English writing skills and mathematics, counselors recommended remedial courses in these areas, both to facilitate claimant’s ability to conduct a job search and to bring his mathematics ability to the entry level required for a course in electronics assembly and construction. Claimant had expressed an interest in such a course. To this end, claimant attended St. Petersburg Junior College from May 17, 1987, through July 16, 1987, and from August 24, 1987, through December 18, 1987, at the expense of employer/carrier. Employer/carrier also paid TTD benefits during claimant’s enrollment in the English and mathematics courses.

Upon receipt of additional information regarding the training program and job possibilities in electronics assembly, claimant concluded the salary potential would not equal his former wages, and that he was unsuited to such confined working conditions. Additional vocational testing and evaluation indicated that claimant had a high probability of succeeding in the field of mechanics and outdoor engine repair. The vocational evaluation identified the marine engine program at SCVC as the most appropriate choice for retraining. On May 1, 1989, claimant’s attorney formally requested that employer/carrier provide retraining for claimant in the marine engine mechanics program at SCVC. The carrier agreed to provide retraining, conditioned on a review of the course to determine its cost effectiveness, and job opportunities in the area. Thereafter, the carrier advised that it would not authorize training at SCVC, but offered alternative programs at Tampa Bay Vocational Center and Pinellas VoTech Center. The alternative programs offered by the carrier were deemed unacceptable by claimant, because they were night courses designed to provide recreational boaters with boating maintenance skills, rather than the skills needed for the open marketplace. Claimant’s attorney advised the carrier that claimant had decided to pursue the training program in marine engine mechanics at SCVC beginning August 28, 1989, and would seek a hearing to determine the carrier’s responsibility to provide tuition, books, and TTD benefits for rehabilitation purposes.

On August 25, 1989, claimant filed a claim for rehabilitative training and education at Sarasota County Vocational Center (SCVC), for a course in marine engine mechanics, and TTD compensation for rehabilitation purposes upon commencement of such program on August 28, 1989. A hearing was held on the claim on March 22, 1990, at which time claimant made an alternative claim for wage loss benefits for the period beginning August 29, 1989.

Evidence adduced at the hearing revealed that the marine engine mechanics course at SCVC is a two-year program. Due to the number of marinas and major boating manufacturers in the area, completion of the program virtually guarantees employment. Claimant’s instructor at SCVC testified that in his observations of claimant, he appeared to experience no difficulty with the physical demands of the program. The instructor further stated that claimant had maintained excellent grades and an outstanding attendance record over the first nine months of the course. Since the physical demands would be no greater during the remainder of the course, he had no reason to doubt claimant’s ability to complete the program successfully. The entry level pay scale for a marine mechanic is $5.50 to $5.75 per hour, [462]*462with an earning potential of $11.00 to $12.00 per hour.

In the order here appealed, the judge of compensation claims found that the courses claimant completed at St. Petersburg Junior College were designed to improve his math and English comprehension so as to facilitate his employability in the open labor market, but were not rehabilitation training as contemplated by section 440.-49(l)(a), Florida Statutes (1983). Consequently, the judge found that claimant’s eligibility period for vocational retraining was not reduced nor otherwise affected by the remedial course work at the junior college. The judge further found that the marine engine mechanics program at SCVC was a suitable and appropriate rehabilitation training program for claimant, and that there exists an extensive labor market for marine engine mechanics in the west-central Florida area. Based on his finding that claimant had demonstrated his suitability for the SCVC program by having successfully completed nine months of the prescribed curriculum, the judge concluded that the two-year program was suitable, but under section 440.49, the employer could be required to pay for no more than fifty-two weeks of the program. Thus, the order directs employer/carrier to pay for the last fifty-two weeks of the program. With regard to wage loss benefits, the judge found that claimant had voluntarily limited his income by enrollment in the vocational training program, and had not demonstrated an appropriate basis for application of a deemed wage earning capacity for the period since August 29, 1989.

Claimant challenges only the judge’s finding that an appropriate basis had not been demonstrated for application of a deemed earning capacity. The pertinent portion of Section 440.15(3)(b)2, Florida Statutes (1983), provides:

In the event the employee voluntarily limits his income or fails to accept employment commensurate with his abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount the employee would have earned if the employee did not limit his income or accepted appropriate employment.... the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury.

The claimant bears the burden to prove all elements of a wage loss claim. Superior Pontiac v. Hearn, 458 So.2d 1197, 1199 (Fla. 1st DCA 1984).

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Bluebook (online)
578 So. 2d 460, 1991 Fla. App. LEXIS 3839, 1991 WL 59997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brosnan-v-sourbeck-roofing-inc-fladistctapp-1991.