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.
2

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 
3

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 fulltime 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).
4

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”).