Nealy v. City of West Palm Beach

442 So. 2d 273

• Court: District Court of Appeal of Florida
• Decided: November 23, 1983
• Docket: AQ-238
• Status: Published

Opinion

442 So.2d 273 (1983)

Lanoris NEALY, Appellant,
v.
CITY OF WEST PALM BEACH and Crawford & Company, Appellees.

No. AQ-238.

District Court of Appeal of Florida, First District.

November 23, 1983. Rehearing Denied December 28, 1983.

Timothy H. Kenney of Kenney, Boswell & Kaufman, West Palm Beach, for appellant.

William P. Doney, Palm Beach, for appellees.

PER CURIAM.

The deputy commissioner's order is supported by competent substantial evidence except as to the award of temporary partial disability benefits. As to such award, the deputy applied the formula under the 1979 version of Section 440.15(4)(a), Florida Statutes. Instead, as appellees concede, the deputy should have relied upon Section 440.15(4), Florida Statutes (1977), the subject accident having occurred on July 31, 1977. We note also that appellees have, in their answer brief, attacked the deputy's order awarding temporary partial disability on the grounds that appellant's work search was inadequate and, thus, the award of any temporary partial disability benefits was error. That issue has not been properly raised as appellees have failed to cross-appeal. See Fla.W.C.R.P. 16(d).

The order is AFFIRMED except as to the award of temporary partial disability, and the cause is REMANDED for redetermination of such temporary partial disability benefits by utilizing the provisions of Section 440.15(4), Florida Statutes (1977).

WENTWORTH, NIMMONS and ZEHMER, JJ., concur.