Florida Division of Corrections v. Morgan

397 So. 2d 1026, 1981 Fla. App. LEXIS 19741

• Court: District Court of Appeal of Florida
• Decided: May 12, 1981
• Docket: No. XX-248
• Status: Published

Opinion

PER CURIAM.

This court previously ruled that there was no competent substantial evidence to support a finding of permanent total disability based on loss of wage earning capacity because we found that the claimant’s work search was inadequate. We remanded the case for proceedings consistent with that finding. On remand, the deputy commissioner restated his initial findings, excused the claimant from any further work search, and again found permanent total disability due to loss of wage earning capacity; we must reverse again.

We held in Brevard Board of County Commissioners v. Caldwell, 379 So.2d 1031 (Fla. 1st DCA 1980), and City of Hollywood v. Castora, 380 So.2d 1148 (Fla. 1st DCA 1980), that a finding of inadequacy of a job search is res judicata, so recovery should be limited to the anatomical rating. Here, the carrier was voluntarily paying permanent partial disability at 50%, the highest physical disability rating assigned to the claimant by a physician. No higher rate of permanent anatomical disability has been demonstrated. The order is reversed and the case is remanded for the entry of an order denying permanent disability compensation in excess of the 50% permanent disability previously accepted by the carrier. The award of attorney’s fee is also reversed in light of the reversal of benefits obtained through the efforts of counsel.

Remanded for proceedings consistent with this opinion.

MILLS, C. J., SHAW, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.