PALMER v. MORGAN ELECTRIC COMPANY, 500 So.2d 744 (Fla.App. 1 Dist. 1987)

BENNIE LEON PALMER, APPELLANT, v. MORGAN ELECTRIC COMPANY, INC., AND F.C.C.I. FUND, APPELLEES.

No. BK-157.District Court of Appeal of Florida, First District.
January 15, 1987.

Appeal from an Order of Deputy Commissioner A.S. Fontaine.

Brian T. Hayes, Monticello, for appellant.

Arthur C. Beal, Jr., of Karl, McConnaughhay, Roland, Maida
Beal, P.A., Tallahassee, for appellees.

PER CURIAM

AFFIRMED.

Page 745

BOOTH, C.J., and MILLS, J., concur.

WENTWORTH, J., dissents with written opinion.

WENTWORTH, Judge, dissenting.

Although the denial of PTD benefits appears to me to be correctly affirmed, I would reverse for the consideration of the wage loss claim. The deputy erred, in my opinion, in rejecting the proffered amendment of the claim during testimony on the morning the hearing commenced, so as to include not only permanent total disability but also permanent partial
disability and consequent wage loss benefits. The history of the claim, and evidence available to carrier long before the hearing, belies the existence of prejudice. The deputy’s distinction between loss of earning capacity and loss of earnings overlooks the fact that, insofar as either claim rests on economic proofs, the defense of the PTD claim would clearly encompass issues at least as inclusive as the attempted amendment. However, in point of fact the claim in this case (whether PTD or wage loss) was pursued on the basis of physical incapacity to work and not on unsuccessful work search. The merits of the wage loss claim should therefore be determined for the sixteen months in question, during some part of which claimant was hospitalized and otherwise medically restricted.