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Publix Risk Management v. Carter

Florida Court of Appeals, First District

July 29, 2019

Publix Risk Management and Publix Super Markets, Inc., Appellants,
v.
Teresa Carter, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from an order of the Judge of Compensation Claims. Neal P. Pitts, Judge. Date of Accident: February 17, 2017.

          John E. McLain, III and Elise G. Phillips of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., Orlando, for Appellants.

          Bill McCabe of William J. McCabe, P.A., Longwood, and Don P. Harvey of Harvey Law, LLC, Oviedo, for Appellee.

          OSTERHAUS, J.

         In this workers' compensation appeal, the employer and carrier (E/C) argue that the claimant, Teresa Carter, is not entitled to temporary partial disability (TPD) benefits because her workplace injuries did not cause any wage loss. The E/C argue that any calculated wage loss stems not from Claimant's disability, but from her choice prior to the accident to take a lower-paying job and work close to her home. We agree and reverse because Claimant didn't show that she lost wages due to her disability.

         I.

         In January 2017, Claimant changed jobs with Publix. She accepted a demotion from assistant deli manager to deli clerk so that she could work at a store closer to her home. This dropped her hourly wage from $17.75 per hour to $15.20 per hour and restricted her overtime-work opportunities.

         Less than a month later, she suffered a compensable back accident while lifting rotisserie chickens in the deli. The E/C accepted compensability of the accident and provided authorized medical care for a cervical and thoracic strain condition. Claimant kept working her deli job after the accident, receiving the same hours as before the accident, albeit with a lifting restriction. She no longer worked the chicken area and was relieved of her former restocking duties.

         Six months after the accident, Claimant filed a petition for benefits seeking an award of TPD benefits from the date of the accident as well as attorney's fees and costs. The E/C denied the petition on the basis that her claimed loss in earnings was caused by Claimant's own decision to take a demotion and lesser-paying job just before the date of accident.

         The case proceeded to a final hearing before a Judge of Compensation Claims (JCC), where Claimant received the TPD benefits she sought. In awarding them, the JCC concluded that Claimant established a causal connection between the injury and her wage loss based upon the light-duty work restrictions ordered by doctors following her injuries. This timely appeal followed.

         II.

         The E/C argue that Claimant is not entitled to TPD benefits because her workplace injuries caused no loss of wages. Claimant was able to work the same hours and earn the same wages in her deli-clerk job after the accident as she had been earning in the same job at the time of her injury.

         To be eligible to receive TPD benefits, an employee must show a causal connection between a workplace injury and a resulting inability to earn pre-injury wages. See Vencor Hosp. v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998), superseded on other grounds by statute; Betancourt v. Sears Roebuck & Co., 693 So.2d 680 (Fla. 1st DCA 1997). The test used to determine whether an injured worker's disability has contributed to a loss of wages is generally "whether a claimant's capabilities allow her to return to and adequately perform her prior job with the employer, and whether the workplace injury caused a change in employment status ...


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