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

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-4210
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PUBLIX RISK MANAGEMENT and
PUBLIX SUPER MARKETS, INC.,
Appellants,
v.
TERESA CARTER,
Appellee.
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On appeal from an order of the Judge of Compensation Claims.
Neal P. Pitts, Judge.
Date of Accident: February 17, 2017.
July 29, 2019
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
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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
resulting in a reduction of her wages below 80% of her pre-injury
average weekly wage.” Wyeth/Pharma Field Sales v. Toscano, 40
So. 3d 795, 799 (Fla. 1st DCA 2010).
In this case, there isn’t competent substantial evidence that
Claimant’s disability caused a loss of wages. Rather, the E/C
accommodated Claimant’s light-duty restrictions and she
continued working in her same deli-clerk job after the injury. The
claimant-friendly wage loss calculation in the final compensation
order stems not from the injury, but from Claimant’s decision to
move from a higher-paying deli-management job to a lower-paying
deli-clerk job just before the compensable accident occurred.
Inclusion of thirteen weeks of wage data in this calculation creates
a statutorily significant disparity in pre- versus post-injury wages
unrelated to the injury. This type of wage disparity that arises
separate from the injury cannot form the basis for an award of TPD
benefits. Rather, there must be a connection between the wage loss
and workplace injury. Ahles, 727 So. 2d at 969.
The Ahles case addressed a similar wage-loss-calculation
issue involving a non-injury-related cause. 1 In Ahles, a nurse
injured her hand on the job, but returned immediately to her full-
time work at the hospital, performing light-duty jobs within her
physical limitations. Id. at 968. Before reaching maximum medical
improvement, however, the hospital terminated her for theft. Id.
Her termination caused a loss of wages. She filed for TPD benefits
and they were initially awarded based upon the statutory
1 After Ahles, the Legislature amended § 440.15(4) to create
an absolute bar to TPD benefits for those employees terminated
from post-injury employment for “misconduct.” § 440.15(4)(e), Fla.
Stat. (2003).
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calculation comparing the applicable percentage of her average
weekly wage against an assumed total loss of earning capacity. Id.
at 968-69. This court reversed, however, because Ms. Ahles’s
disability did not contribute to her lost wages. Id. at 969. In
reversing, we noted that TPD benefits are compensation “for
disability.” Id. (quoting § 440.15, Fla. Stat.). And “disability” is
defined by § 440.02(13) as “incapacity because of the injury to earn
in the same or any other employment the wages which the
employee was receiving at the time of the injury.” Id. Under the
workers’ compensation statute, we concluded that an injured
employee could recover TPD benefits “only if a disability caused by
a work-related injury results in a reduction in the employee’s
earning capacity.” Id. In Ms. Ahles’s case, even though “the
reduction in [her] income was enough, from a purely mathematical
standpoint, to require the payment of [TPD] benefits[,] . . . the
reduction in [her] income below the minimum statutory level was
caused by her termination for misconduct, not her disability.” Id.
And because her “disability” did not contribute to her lost wages,
she could not recover TPD benefits. Id. See also Interim Servs. v.
Levy, 843 So. 2d 915, 916-17 (Fla. 1st DCA 2003) (reversing a TPD
award where the injured claimant returned to her job and there
wasn’t competent substantial evidence of a causal connection
between the injury and post-termination lost wages).
Here, as in Ahles, the work restrictions from Claimant’s injury
did not reduce her earning capacity or wages. Claimant was able
to return to her same job full-time (albeit with restrictions) after
the accident. Even though Claimant could calculate a post-injury
reduction in income below the statutory level as a mathematical
matter, the reason for the reduction did not stem from her
disability. Rather, the reduction resulted from Claimant’s decision
to leave her higher-paying job for a lower-paying job just a few
weeks before the accident occurred. Under these circumstances,
Claimant did not make the required showing of a causal connection
between her injury and lost wages. And thus she cannot recover
TPD benefits because her injury did not cause a reduction in her
earning capacity. 2
2 We also reject Claimant’s 120-day-rule argument for
affirming this appeal, see § 440.20(4), Fla. Stat., because the
workplace injury did not cause a reduction of wages. See Payne v.
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III.
Because Claimant didn’t show that her loss of earnings was
caused by her disability, the award of TPD benefits is reversed. In
view of our reversal of the TPD benefits award, we need not
address the merits of the E/C’s other arguments.
REVERSED.
B.L. THOMAS and ROWE, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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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.
AllStaff Inc/Summit, 44 Fla. L. Weekly D710 (Fla. 1st DCA Mar.
13, 2019) (where the 120-day rule established compensability of
the injury, but, “[n]evertheless, Claimant’s prima facie burden
here also included proof that her workplace injury caused a
reduction of wages below 80% of her pre-injury average weekly
wage”).
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