Food Fair, Inc. v. Povalitis

District Court of Appeal of Florida

Food Fair, Inc. v. Povalitis

390 So. 2d 410, 1980 Fla. App. LEXIS 18119

CourtDistrict Court of Appeal of Florida

DecidedNovember 7, 1980

DocketNo. SS-366

StatusPublished

Cited by1 cases

This text of 390 So. 2d 410 (Food Fair, Inc. v. Povalitis) 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

Food Fair, Inc. v. Povalitis, 390 So. 2d 410, 1980 Fla. App. LEXIS 18119 (Fla. Ct. App. 1980).

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Opinion

SHAW, Judge.

This is an appeal from a workers’ compensation order awarding benefits for disability in excess of physical impairment. The appellants argue that in order for the deputy to award such benefits, based on loss of wage earning capacity, the claimant must attempt a work search within capabilities. We agree that absent a finding by the deputy that the claimant’s disabilities are so massive that a work search is excused the claimant must demonstrate wage earning capacity loss by making a realistic job search within his capabilities.

The claimant suffered a 15% anatomical disability that left him with a 75-pound lifting limitation. His job search was limited to a job application at an unopened grocery store and two attempts at employment that required lifting weights obviously in excess of his limitation. He has a high school equivalency degree with a work history consisting of torch and solder work and bookkeeping. By limiting his search to jobs requiring heavy lifting, he failed to realistically test his wage earning capacity in the job market, thus there has been no demonstration of a wage earning capacity loss in excess of the 15% permanent partial disability rating voluntarily accepted by the appellants. Exxon v. Alexis, 370 So.2d 1128 (Fla.1978); Pantry Pride v. Gonzalez, 882 So.2d 818 (Fla. 1st DCA 1980).

The order is, accordingly, reversed.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.

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SHAW, Judge.

This is an appeal from a workers’ compensation order awarding benefits for disability in excess of physical impairment. The appellants argue that in order for the deputy to award such benefits, based on loss of wage earning capacity, the claimant must attempt a work search within capabilities. We agree that absent a finding by the deputy that the claimant’s disabilities are so massive that a work search is excused the claimant must demonstrate wage earning capacity loss by making a realistic job search within his capabilities.

The claimant suffered a 15% anatomical disability that left him with a 75-pound lifting limitation. His job search was limited to a job application at an unopened grocery store and two attempts at employment that required lifting weights obviously in excess of his limitation. He has a high school equivalency degree with a work history consisting of torch and solder work and bookkeeping. By limiting his search to jobs requiring heavy lifting, he failed to realistically test his wage earning capacity in the job market, thus there has been no demonstration of a wage earning capacity loss in excess of the 15% permanent partial disability rating voluntarily accepted by the appellants. Exxon v. Alexis, 370 So.2d 1128 (Fla.1978); Pantry Pride v. Gonzalez, 882 So.2d 818 (Fla. 1st DCA 1980).

The order is, accordingly, reversed.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.

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Bluebook (online)

390 So. 2d 410, 1980 Fla. App. LEXIS 18119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/food-fair-inc-v-povalitis-fladistctapp-1980.

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