Workers’ compensation — Temporary partial disability — Denial — Voluntary limitation of income — Order denying TPD benefits based on claimant’s refusal of suitable employment did not set forth sufficient findings to support denial of TPD benefits

Workers’
compensation — Temporary partial disability — Denial — Voluntary limitation
of income — Order denying TPD benefits based on claimant’s refusal of suitable
employment did not set forth sufficient findings to support denial of TPD
benefits for all relevant time periods where JCC made no specific findings
establishing date of initial offer of employment, dates of continued
availability of suitable job, dates of claimant’s refusal, or whether
claimant’s refusal continued after he was terminated by employer — Remand for
further findings of fact and conclusions of law based on evidence already
introduced by parties

CLARENCE HAWKINS, SR., Appellant, v. PUBLIX SUPER MARKETS,
INC./PUBLIX RISK MANAGEMENT, Appellees. 1st District. Case No. 1D14-5420.
Opinion filed November 12, 2015. An appeal from an order of the Judge of
Compensation Claims. Margaret Sojourner, Judge. Date of Accident: March 18,
2009. Counsel: Bill McCabe, Longwood, and Pat DiCesare, Lakeland, for
Appellant. Thomas P. Vecchio of Vecchio, Carrier, Feldman & Johannessen,
P.A., Lakeland, for Appellees.

(PER CURIAM.) In this workers’ compensation case, Claimant
appeals the judge of compensation claims’ (JCC’s) order denying his claim for
temporary partial disability (TPD) benefits based on a refusal of suitable
employment under subsection 440.15(6), Florida Statutes (2008). Because the
order on appeal does not set forth sufficient findings to support the denial of
TPD benefits for all the relevant time periods, we reverse and remand for
further consideration by the JCC.

Under paragraph 440.15(4)(a), Florida Statutes (2008), an
injured employee or claimant is entitled to TPD benefits if he or she demonstrates
a causal connection between the compensable workplace injury and subsequent
wage loss by proof of physical restrictions that prohibit the injured employee
from performing all of his or her job duties. See Wyeth/Pharma Field
Sales. v. Toscano, 40 So. 3d 795, 799 (Fla. 1st DCA 2010). In the order on
appeal, the JCC found that Claimant met his initial burden to establish
entitlement to TPD benefits, but also that the E/C satisfied the requirements
of subsection 440.15(6) so that no TPD benefits were due Claimant. Subsection
440.15(6), however, provides that the disqualification applies only during the
continuance of a refusal of employment. § 440.15(6), Fla. Stat. (2008). See
also A. Duda & Sons, Inc. v. Kelley, 900 So. 2d 664, 669 (Fla.
1st DCA 2005). “Voluntary limitation of income caused by the refusal to accept
a suitable job does not permanently foreclose the right to indemnity benefits.”
Moore v. Servicemaster Commercial Servs., 19 So. 3d 1147, 1152 (Fla. 1st
DCA 2009). Furthermore, an employer must establish the continued availability
of the job for each applicable period in order to retain the benefit of the
affirmative defense based on refusal of suitable employment. Id.

In the final order, the JCC made no specific findings
establishing the date of the initial offer of employment, the dates of
continued availability of a suitable job, the dates of Claimant’s refusal, or
whether Claimant’s refusal continued after he was terminated by the Employer.
Without such findings, there is insufficient evidence to support the denial of
benefits for all the time periods claimed. For this reason, we REVERSE and
REMAND for further findings of fact and conclusions of law based on the
evidence already introduced by the parties. (LEWIS, MAKAR, and WINOKUR, JJ.,
CONCUR.)

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