Jerry v. Farm Stores, Inc.

576 So. 2d 405, 1991 Fla. App. LEXIS 2247, 1991 WL 35453

• Court: District Court of Appeal of Florida
• Decided: March 18, 1991
• Docket: No. 90-1263
• Status: Published

Opinion

PER CURIAM.

The appellant/claimant in this workers’ compensation appeal claimed temporary partial disability benefits for various periods between August of 1987 and September of 1989. Because of his acknowledged failure to conduct a good faith work search, he claimed benefits on a “deemed earnings” basis only pursuant to Section 440.15(4)(b), Florida Statutes. The claimant argues on appeal that the judge of compensation claims erred in failing to award these benefits. We agree and reverse.

Testimony presented at the hearing included undisputed testimony from a doctor, a vocational evaluator, and a rehabilitation specialist that, during the periods for which claim for benefits was made, the claimant was disabled from performing his former employment and earning wages equal to those he earned prior to the industrial accident. In light of this undisputed testimony, the claimant should have been awarded temporary partial disability benefits on a deemed earnings basis. See Edwards v. Caulfield, 560 So.2d 364 (Fla. 1st DCA 1990); Anderson v. S & S Diversified, Inc., 477 So.2d 591 (Fla. 1st DCA 1985), rev. denied, 486 So.2d 597 (Fla.1986); and Publix Supermarkets, Inc. v. Franklin, 467 So.2d 1031 (Fla. 1st DCA 1985).

We find the claimant’s argument regarding the judge’s evidentiary ruling to be without merit.

Accordingly, the order is reversed, and we remand to the judge of compensation claims for entry of an order awarding temporary partial disability benefits on a deemed earnings basis. The judge of compensation claims is authorized to take additional testimony, should he find it necessary or helpful.

ERVIN, ALLEN and WOLF, JJ„ concur.