Cuccarollo v. Gulf Coast Building Contractors 500 So. 2d 547

THOMPSON, Judge.

Claimant appeals a compensation order denying wage-loss benefits. We affirm.

This is another case where the sole question involved is whether there is competent substantial evidence to support the ruling of the deputy commissioner (deputy). As this court pointed out in Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983): “We do not review whether there was competent, substantial evidence to support the claim disallowed by the deputy; we only review whether the record contains competent, substantial evidence to support the deputy’s order.” (Emphasis by the court.) In the instant case not some but all of the competent substantial evidence, including that offered by the claimant, supports the deputy’s ruling.

In his ruling the deputy correctly distinguishes the cases relied upon in the *548dissent because the injuries to those claimants were contributing factors in the wage-loss claims. National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1984); National Distillers v. Guthrie, 473 So.2d 806 (Fla. 1st DCA 1985), and Carpenters R. V. Service v. Eckert, 455 So.2d 590 (Fla. 1st DCA 1984) all involved an order of the deputy finding that the claimant’s compen-sable physical limitation was a contributing causative factor in the wage-loss claimed. There was competent substantial evidence to support the deputy’s rulings in these cases. In the instant case the evidence showed, and the deputy found, that the claimant’s wage-loss was due solely to the lack of tourists during the winter season, an economic factor in no way causally connected to the claimant's injury. The claimant admitted on cross examination that the lack of winter tourists was the sole cause of his wage-loss. The deputy’s finding of no causal connection between the claimant’s wage-loss and his compensable injury is fully supported by competent substantial evidence, including the testimony of the claimant.

The deputy did not specifically rule on the question whether the claimant had any permanent impairment, but such a ruling is unnecessary in view of the determination that there was no causal connection between claimant’s compensable accident and the wage-loss sustained. Regardless of whether claimant sustained a permanent impairment, no wage-loss would be due if it were not causally connected to the claimant’s compensable injury. The deputy did state in his order that he had advised the parties that it would be necessary to rede-pose Dr. Cameron on the issue of permanent impairment in accordance with the AMA Guides, and that the claimant’s attorney had declined to redepose Dr. Cameron. The deputy further found that, although Dr. Cameron determined claimant had reached maximum medical improvement with a five percent permanent partial impairment of the body as a whole, such impairment was based on subjective complaints and it was doubtful that the claimant had met the threshold requirements to establish permanent impairment under § 440.15(3)(b)l, Fla.Stat. These findings are supported by competent substantial evidence. Indeed, Dr. Cameron testified that while he did not agree with the AMA Guides, the type of injury sustained by the claimant was covered by the AMA Guides and claimant’s permanent impairment rating under the AMA Guides would be zero. The burden of proving permanent impairment was on the claimant. He failed to carry his burden even after the deputy had suggested that his proof was insufficient and had given him an opportunity to adduce additional evidence on the question.

The law and evidence support the deputy’s order, and it is AFFIRMED.

SHIVERS, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I dissent. The 33-year-old claimant, while employed as a carpenter, suffered a compensable injury in February 1981. Following claimant’s successful treatment at a pain clinic, his authorized physician recommended that he be discharged as “maximally improved” with a five-percent permanent impairment as of October 23, 1981. Claimant thereafter undertook efforts at rehabilitation, and the employer/carrier (e/c) voluntarily paid rehabilitative benefits, including tuition and all expenses for a year’s study at the commercial art department at Pensacola Junior College. During the summer of 1983, after completing his studies, claimant acquired work painting t-shirts and other merchandise on Pensacola Beach. This work was seasonal, with the peak periods of activity ending in fall. Claimant later unsuccessfully attempted to find regular full-time work as an artist for commercial art businesses in Pensacola.

Because claimant’s average weekly wage (AWW) during the fall and winter months following his accident was far less than the winter and spring months, he sought wage-loss for the former periods of time, specifically for the months of October-December *5491984, and January-March 1985. The e/c controverted on the grounds, among others, that claimant had refused the e/c’s offer of regular jobs which it had found for him, had refused to accept any type of work other than in commercial art, and that claimant was not eligible for wage loss benefits since he had no permanent impairment under the AMA Guides.

The deputy, without addressing the question of whether the claimant had met the threshold requirement of establishing permanent impairment1 pursuant to Section 440.15(3)(b)l, Florida Statutes, denied the claim on the ground that the claimant had failed to prove any connection between his injury and his reduced income during the winter months. Clearly the deputy’s refusal to decide the initial issue of whether claimant had sustained permanent impairment was error. Neither party argues that such issue was not ripe for determination. The case, then, should be remanded to the deputy to make this essential finding, cf. Florida Power & Light Co. v. Mulkerrin, 444 So.2d 583 (Fla. 1st DCA 1984) — unless, of course, the error can be deemed only harmless in light of the deputy’s explicit ruling on the issue now on review.

The deputy’s determination that no causal connection existed between the wage-loss suffered and claimant’s industrial accident was based upon his finding that claimant’s depressed income during the off-season months of the year was attributable solely to economic factors and not to the injury. In so holding, the deputy’s order overlooks a myriad number of cases from this court stating that if an employee is displaced from his employment due to a work-related injury and has instituted a good faith effort to find work within his capabilities, the burden then shifts to the employer to establish claimant’s voluntary limitation of income. See, e.g., Tampa Electric Co. v. Bradshaw, 477 So.2d 624 (Fla. 1st DCA 1985); City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984); D.L. Amici Co. v. Jackson, 444 So.2d 978 (Fla. 1st DCA 1983), rev. denied, 451 So.2d 848 (Fla.1984); D & R Builders, Inc. v. Quetglas, 449 So.2d 988 (Fla. 1st DCA 1984); Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982).

More specifically, as applied to the facts at bar, the deputy erroneously refused to apply National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1983) (Guthrie I); National Distillers v. Guthrie, 473 So.2d 806 (Fla. 1st DCA 1985) (Guthrie II), and Carpenters R.V. Service v. Eckert, 455 So.2d 590 (Fla. 1st DCA 1984) to the issue on review, it being his opinion that the rule announced in the above cases had no relevancy to the instant case, because the only reason claimant had failed to make comparable income during the winter months to that made by him during spring and summer was attributable to his voluntary decision to work year-round as a beach artist. Hence, the deputy concluded, his wage-loss during the winter season had nothing to do with his industrial injury.

In all due respect, the deputy’s conclusion that claimant’s wage-loss during the winter months had no causal relationship to his industrial injury is a misreading of the Guthrie and Carpenters rule. In the latter case, the e/c made the same argument, as here, that claimant had not accepted the employer’s offer of other jobs, which, it was contended, were within the employee’s work limitations. The e/c further argued in Carpenters that the claimant was not entitled to wage-loss sustained during his work in his rehabilitated position as a real *550estate salesman, paid on a commission basis, contending — as does appellant at bar— that the amounts claimed due were attributable to the fluctuating nature of the business that claimant had of his own volition decided to undertake. In rejecting this argument, this court in Carpenters stated:

We hold that there was competent substantial evidence in the instant case indicating that claimant’s compensable physical limitation was a contributing causative factor in the wage loss claimed. The claimant’s present employment in the real estate business, instead of the kind of regular income job he had with the employer, is attributable to his disability. It was established by the previous 1980 unappealed order that the claimant was, by reason of his permanent impairment, unable to continue performing the kind of work for which he had training and experience, that it was necessary for him to submit to education and training in another field of endeavor and that real estate sales was a reasonable avenue for the claimant to pursue. And the 1980 order, therefore, required the E/C to reimburse the claimant for his expenses in obtaining his real estate license. Further, the testimony clearly shows that the claimant has conscientiously and enthusiastically pursued his new vocation over the past several years and his earnings therefrom have steadily increased as a consequence of his efforts.

455 So.2d at 592-93.

Similarly, in the case at bar, the e/c voluntarily assisted claimant’s efforts at rehabilitating himself as a commercial artist by providing him with tuition and all expenses for a year’s study at the commercial art department of Pensacola Junior College. Once he was rehabilitated to his new vocation, claimant should have been under no obligation thereafter to test his physical capacity to undertake work in an altogether different field. The e/c’s offers of other employment, moreover, were limited to his performing jobs as a back hoe operator and as an auto parts salesman, both at lesser rates of pay than that he had received as a carpenter before his work-related injury. Claimant declined the jobs for the reasons of both the lesser amounts of pay and his doubts that he was physically capable of handling them. Claimant’s doubts relating to his physical inability are supported by his doctor’s recommendation that he not engage in occupations involving lifting of more than 35-40 pounds, nor bending, stooping, etc.

The deputy’s implicit finding that claimant has voluntarily limited his income by continuing his work as a beach artist is not supported by the evidence. Here, as in Guthrie, claimant’s industrial injury caused his displacement from his former employment and left him incapable of performing his prior job. Here, as in Guthrie, claimant’s acquisition of his new vocation, with his employer’s active assistance, was directly attributable to his compensable injury. Guthrie instructs that once a claimant, as here, establishes that his rehabilitated position was caused by the industrial injury, the claimant is not then required to establish by other evidence that the loss of income in any given month “was the direct result of his physical disabilities so long as he continued to diligently pursue his new occupation_” Guthrie II, 473 So.2d at 808 (e.s.).

The e/c is hardly able to make any serious argument that claimant failed to pursue his present vocation with diligence. In fact, during the summer months, claimant’s occupation as a commercial artist netted him a far greater income than that he had received during comparable months before his injury. Additionally, claimant had attempted unsuccessfully to obtain full-time work in his new field with nearly all of the design, advertising, or sign companies in the Pensacola area. It would be a cruel charade, once an injured worker has successfully undertaken rehabilitation to a new vocation with his employer’s consent, to require him next to undergo a work search in an altogether different field as a precondition to his entitlement to wage-loss. Such a requirement would undercut the very purpose of rehabilitation: To provide the worker with “suitable gainful em*551ployment ... which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his average weekly earnings at the time of injury.” Section 440.49(l)(a), Florida Statutes. Cf Underwood v. Terminal-Frouge Builders, 128 So.2d 605, 608 (Fla.1961) (it would “violate the spirit and intent of the Workmen’s Compensation Law [to penalize] a claimant for attempting through the furtherance of his education to limit the effect of his disability.”). Guthrie did not impose that burden on the injured employee, and neither should this case.

I would therefore reverse the denial of compensation as to the ground stated by the deputy, and remand the cause with instructions that the deputy rule on the unanswered question of whether the claimant has suffered permanent impairment.

ON REHEARING

In his motion for rehearing appellant appears to suggest that National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1983); National Distillers v. Guthrie, 473 So.2d 806 (Fla. 1st DCA 1985); and Carpenters R.V. Service v. Eckert, 455 So.2d 590 (Fla. 1st DCA 1984) hold that once the employer and carrier (E/C) have provided rehabilitative training in a new occupation for the claimant they are thereafter guarantors that the claimant will be employed in that occupation at not less than his prior salary or that he will be entitled to wage-loss benefits if his wages are not equal to or greater than his prior wages.

Under present case law the deputy commissioner (deputy) or the claimant with the deputy’s approval makes the choice of the new occupation for which the claimant is to be trained and the E/C pay the cost of this rehabilitative training. It is not the prerogative of the E/C to determine the new occupation for which the claimant will be trained, for obvious reasons. However if the E/C are going to be the guarantor of the results of the rehabilitative training then common sense would dictate that the E/C should have the right to determine the occupation in which the claimant is to be trained. This would not be appropriate because it is preferable that the selection of the new occupation continue to be decided by the deputy with the claimant’s input as in the past with maximum consideration of all factors, and not just certainty of employment upon completion. If, however, the selected occupation does not work out for the claimant after a reasonable good faith effort by the claimant, he should not be able to automatically claim and collect wage-loss for an unlimited time, but should be required to pursue some other reasonable avenue of employment that is suitable for him within his physical and mental qualifications and limitations.

In this case, the claimant selected to be trained as a commercial artist. The E/C paid for this rehabilitative training. The claimant’s problem arose because the type of commercial artist work he has chosen to perform is painting t-shirts and other souvenirs at the north Florida resort area of Pensacola Beach. Such work is clearly seasonal in nature. The record does not disclose the amount of claimant’s earnings during the full summer of 1985, but appellant’s brief does reflect that he earned $1,100 in April, $1,852 in May and $2,210 in June of 1985, a total of $5,162 or almost twice his adjusted pre-accident wages for three months. During the winter months he did not earn as much as he had prior to his compensable accident and he therefore made a claim for wage-loss during these months.

No amount of effort on the claimant’s part will change the seasonal nature of claimant’s tourist-oriented work in Pensacola Beach. This case is not at all like Guthrie or Eckert in which both claimants chose to become real estate salesmen. Their income did fluctuate but in Eckert’s case it had been generally increasing as he gained experience and knowledge in the real estate business and the same could be expected of Guthrie. Their work was not seasonal and was in no way affected by the winter season every year. Cuccarollo’s income was not merely affected by the season, it was very substantially reduced and *552was as low as $27 in one winter month, whereas during the summer months it admittedly was substantially higher than his prior income. There is absolutely nothing the claimant can do about this if he continues to work as a commercial artist painting t-shirts at a north Florida beach resort. The E/C had no control over the occupation which was selected by the claimant. If the claimant selects seasonal type employment after that training, the E/C should not be liable for wage-loss in the winter months every year as a result of the seasonal nature of his occupation. Neither Guthrie nor Eckert so hold. If the claimant sustained a compensable injury in his present job, his average weekly wage would be determined by his average weekly wage for the past 52 weeks, not 13 weeks as is normally done. Section 440.14(l)(c), Fla. Stat. This would not be the case in Guthrie and Eckert.

AFFIRMED.

SHIVERS, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

The majority’s efforts to distinguish this court’s opinions in National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1983) (Guthrie I); National Distillers v. Guthrie, 473 So.2d 806 (Fla. 1st DCA 1985) (Guthrie II); and Carpenters R.V. Service v. Eckert, 455 So.2d 590 (Fla. 1st DCA 1984), from the present case are not in my judgment convincing. In both of the Guthrie cases the employer had argued that claimant’s reduction of income in a particular month was not caused by the claimant’s industrial injury, but was rather the result of the nature of the work required in the claimant’s rehabilitated vocation as a real estate salesman. In Guthrie II, we unequivocally rejected this argument, stating:

We hold that claimant, having established that his new vocation was attributable to his compensable injury, was not required to establish by additional evidence that a loss of earnings in a particular month was the direct result of his physical disabilities so long as he continued to diligently pursue his new vocation in the real estate business.

473 So.2d at 808.

The majority now tells us that the holding in Guthrie is inapplicable to the instant case. One may well ask why? Is it simply because Guthrie was a real estate salesman, and Cuccarollo elected to become a commercial artist? Or is it because the deputy commissioners in Guthrie and Ec-kert approved wage loss awards, while the deputy in the instant case denied the same, thereby making the outcome in a given case dependent upon whatever the deputy determined it to be? Or is one now deemed not to have diligently pursued his new vocation if it is subject to seasonal variations, regardless of how energetically the worker may otherwise apply himself?

The majority states that although Guthrie’s and Eckert’s incomes fluctuated, their work was not seasonal. While this statement may be correct, nothing in those opinions informs us of that as a fact. Nevertheless, even if the incomes of the two real estate salesmen were not subject to seasonal fluctuations, I do not consider that distinction to be material to a determination of Cuccarollo’s entitlement to wage-loss.

My reading of Guthrie I, Guthrie II, and Eckert is that once the antecedent facts are established, i.e., the causal connection between the injury and the change in employment status, the rehabilitation to a new position, etc., it is as a matter of law irrelevant that economic conditions may also have contributed to the loss of income. Under the circumstances here involved, an economic factor, such as the seasonal nature of the claimant’s work, cannot be considered an intervening cause that breaks the causal chain between the industrial injury and the wage-loss claimed.

More than four years ago we stated, in construing the wage loss statute as it then existed (§ 440.15(8)(b)2, Florida Statutes (1979)), that it was not necessary in order *553to entitle one to wage-loss for such person to present evidence that his refusal for employment was not caused by the unavailability of jobs resulting from economic conditions. Regency Inn v. Johnson, 422 So.2d 870, 879 (Fla. 1st DCA 1982), pet. for rev. den. 431 So.2d 989 (Fla.1983). We later reaffirmed this position in our construction of the 1983 amended statute in City of Clermont v. Rumph, 450 So.2d 573, 576 (Fla. 1st DCA 1984), pet. for rev. den. 458 So.2d 271 (Fla.1984), interpreting the amendment as “precluding an award of wage loss benefits when predicated solely on economic considerations unrelated to a claimant’s physical limitations by ordinary proximate cause standards.” (e.s.) Rumph emphasized that a claimant’s right to wage-loss under the statute did not depend on proof of “after-injury economic conditions.” Id. at 577. See also Publix Supermarkets, Inc. v. Franklin, 467 So.2d 1031 (Fla. 1st DCA 1985); Tampa Electric Co. v. Bradshaw, 477. So.2d 624 (Fla. 1st DCA 1985). The Rumph analysis was specifically applied to sustain an award of wage loss benefits in Guthrie II.

Following our decisions in Guthrie II and Eckert, I doubt there can be any serious dispute that claimant established a pri-ma facie case of showing his entitlement to wage-loss. The only real question is whether the employer met its burden of demonstrating that claimant refused work or voluntarily limited his income. The majority holds that it has. I cannot agree. I do not understand Guthrie and Eckert to say that an employer carries its burden by showing only that a claimant’s income is susceptible to seasonal annual changes.1 If this was the intent of the panel members involved in those cases, it cannot be gleaned from the opinions. Considering myself bound by language which appears free from ambiguity, I would follow the holdings in those cases and reverse the order denying wage-loss.