Publix Risk Management and Publix Super Markets, Inc., Appellants,
Teresa Carter, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from an order of the Judge of Compensation Claims.
Neal P. Pitts, Judge. Date of Accident: February 17, 2017.
E. McLain, III and Elise G. Phillips of Rissman, Barrett,
Hurt, Donahue, McLain & Mangan, P.A., Orlando, for
McCabe of William J. McCabe, P.A., Longwood, and Don P.
Harvey of Harvey Law, LLC, Oviedo, for Appellee.
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.
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.
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
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
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
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.
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 ...