Milky Way Farms v. Stitt

District Court of Appeal of Florida

Milky Way Farms v. Stitt

410 So. 2d 634, 1982 Fla. App. LEXIS 19400

CourtDistrict Court of Appeal of Florida

DecidedMarch 4, 1982

DocketNo. AD-281

StatusPublished

This text of 410 So. 2d 634 (Milky Way Farms v. Stitt) 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.

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Milky Way Farms v. Stitt, 410 So. 2d 634, 1982 Fla. App. LEXIS 19400 (Fla. Ct. App. 1982).

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Opinion

WIGGINTON, Judge.

This is a workers’ compensation appeal from an order of the deputy commissioner awarding claimant “temporary partial or wage-loss” benefits from April 18, 1980, through August 1, 1980, and temporary total disability benefits for one day, February 12, 1981. We affirm as to the award of TTD benefits but reverse as to the award of “temporary partial or wage-loss” benefits.

Under either Section 440.15(3)(b) or 440.-15(4)(a), Florida Statutes (1979), benefits are determined on the basis of actual wage loss. Both sections place the burden on the employee to establish that any wage loss benefit claimed is a result of the compensa-ble injury. See, §§ 440.15(3)(b)2 & 440.-15(4)(b).

In the instant case, the evidence is insufficient to prove that claimant’s work search during the period, April 18, 1980, through August 1, 1980, was unsuccessful due to his disability and that he was entitled to wage loss benefits. Claimant’s testimony that he was unable to perform these jobs is not sufficient in view of the medical testimony that he was not permanently disabled and was able to work during that period of time without limitation. Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982); Burger King Corp. v. Stark, 401 So.2d 1173 (Fla. 1st DCA 1981).

Accordingly, the order of the deputy commissioner is: Affirmed in part and Reversed in part.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH, J., concur.

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WIGGINTON, Judge.

This is a workers’ compensation appeal from an order of the deputy commissioner awarding claimant “temporary partial or wage-loss” benefits from April 18, 1980, through August 1, 1980, and temporary total disability benefits for one day, February 12, 1981. We affirm as to the award of TTD benefits but reverse as to the award of “temporary partial or wage-loss” benefits.

Under either Section 440.15(3)(b) or 440.-15(4)(a), Florida Statutes (1979), benefits are determined on the basis of actual wage loss. Both sections place the burden on the employee to establish that any wage loss benefit claimed is a result of the compensa-ble injury. See, §§ 440.15(3)(b)2 & 440.-15(4)(b).

In the instant case, the evidence is insufficient to prove that claimant’s work search during the period, April 18, 1980, through August 1, 1980, was unsuccessful due to his disability and that he was entitled to wage loss benefits. Claimant’s testimony that he was unable to perform these jobs is not sufficient in view of the medical testimony that he was not permanently disabled and was able to work during that period of time without limitation. Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982); Burger King Corp. v. Stark, 401 So.2d 1173 (Fla. 1st DCA 1981).

Accordingly, the order of the deputy commissioner is: Affirmed in part and Reversed in part.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH, J., concur.

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410 So. 2d 634, 1982 Fla. App. LEXIS 19400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milky-way-farms-v-stitt-fladistctapp-1982.

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