BOB'S BARRICADES, INC. v. CATALANO

Full title: BOB'S BARRICADES, INC., AND RISK MANAGEMENT SERVICES, INC., APPELLANTS, v…

Court: District Court of Appeal of Florida, First District

Date published: Jun 16, 1982

414 So. 2d 580 (Fla. Dist. Ct. App. 1982)

Opinion

No. AF-496.

May 10, 1982. Rehearing Denied June 16, 1982.

Kathleen R. Hudson, St. Petersburg, for appellants.

Joseph V. Barrs of Barrs, Williamson Levens, Tampa, for appellee.

THOMPSON, Judge.

The employer/carrier (E/C) challenge a workers' compensation order, contending in part that the deputy commissioner (deputy) erred by awarding claimant wage loss benefits. We agree and reverse.

Claimant sustained a compensable back injury on September 28, 1979, for which he was subsequently required to undergo surgery. Claimant testified that after returning to work, he performed the same job, worked the same hours, and made the same wages as he had prior to the accident. After working for more than a year claimant was fired.

Claimant contends that he was fired because of his claim for workers' compensation benefits. E/C contend that claimant was fired because of his attitude. Subsequent to his termination, claimant conducted a job search. He located employment approximately five weeks after being terminated by E/C. The deputy awarded claimant wage loss benefits for the period of time he was unemployed.

Claimant's assertion regarding why he was fired does not form a basis for the award of wage loss benefits. There is no competent substantial evidence that the asserted wage loss was the result of the compensable injury. Accordingly, the award of wage loss benefits is reversed. Our resolution of this issue obviates the need to address the remaining points raised by E/C.

REVERSED.

WIGGINTON, J., concurs.

JOANOS, J., dissents.

JOANOS, Judge, dissenting.

There was evidence that claimant's physician recommended a change in employment because of the injury. There was further evidence that the claimant was fired when the employer was told of the recommendation. In my opinion, that evidence was sufficient to support the decision of the Deputy Commissioner that claimant was entitled to wage loss benefits for the period between the claimant's firing and his finding employment in a job that he could properly perform. The Deputy Commissioner could properly conclude that this loss of wages resulted from the injury sustained. I, therefore, dissent from the majority opinion.