Listed below is McConnaughhay, Coonrod, Pope, Weaver & Stern, P.A.'s workers' compensation case law database. The database dates back until 1971 and includes over 5500 workers' compensation court decisions.
To view the case summaries, select one of the general topics listed below.
Total Cases: 49
At time of accident, claimant had been working for Employer/Carrier for only three weeks in a full-time capacity. However, previous to that time, she had worked for the employer in a part-time capacity, although it was undisputed that she worked substantially the whole of the 13 weeks prior to accident. Court determined that averaging claimant's wages for the 13 weeks prior to the accident was the correct way of determining average weekly wage pursuant to Section 44.14(1)(a), F.S., i.e. the work for the 13 weeks prior to the date of accident, whether for the same or another employer, determines if the 13 week average is utilized in determining the average weekly wage. See Wal-mart Stores v. Campbell, 714 So. 2d 436 (Fla. 1998).
Read More
Average weekly wage calculation included the prorata portion of the corporate profits to which the claimant was entitled as a shareholder. See Pishotta v. Pishotta Tile and Marble, Inc. 613 So. 2d 1373 (Fla. 1st DCA 1993). Such corporate profits qualified as wages defined in Section 440.02(28), Florida Statutes. "Wages" as applied to workers' compensation cases are not limited to wages as defined under the Federal Tax Code. Wages under the Workers' Compensation Act are defined as the money rate at which the services rendered is recompensed under the contract of hire in force at the time of the injury. Even though certain monies are not paid, they are included in the average weekly wage calculation if earned during the requisite period prior to the date of accident.
Read More
Vested sick pay actually received during the 13 weeks before an accident is included in the average weekly wage calculation. Claimant had testified that she had been paid her full 40 hours of work for the 2 weeks in question whereas the wage statement indicated that she had been paid nothing for one week and had worked only 3 days for another week. The JCC is entitled to determine credibility and resolve conflicts in the evidence. Accordingly, the JCC was entitled to reject the wages on the wage statement and accept the testimony of the claimant that she had been paid full wages during the periods in question.
Read More
Claimant, a minor, was injured working for the employer in violation of Federal Immigration Law and Section 440.061(1)(f), Florida Statutes, prohibiting employment of children under the age of 16 in heavy work in the building trades. The claimant had been employed through an intermediary who was also an employee of the employer. The claimant testified that the intermediary was aware of his age and the fact that he had been employed unlawfully in violation of immigration laws.
The JCC denied compensation benefits to the claimant because the claimant had not reported his wages to the IRS. See Section 440.02(28), Florida Statutes. The claimant testified that he did report his wages to the IRS but the JCC denied such testimony and refused to order the payment of compensation since, based on the best evidence rule, the claimant failed to introduce into evidence his tax returns. The JCC did not reject the claimant's testimony as being untruthful but invoked the best evidence rule to conclude that there was no competent and substantial evidence that would support a conclusion that the claimant reported the wages. On appeal, court determined that this was error. The best evidenc rule addresses the admissibility of evidence not its weight. In addition, the employer/carrier did not object to the claimant's testimony based on the best evidence rule.
Federal law requires employers to report and withhold taxes from wages paid to employees. Proof that wages have been reported for federal income tax purposes by the employee or the employer satisfies the plain language of the statute that in order to include wages in the average weekly wage calculation, wages must be reported to the federal government. A presumption arises on payment of wages that the employer has withheld an appropriate amount as income taxes. Court regarded as dicta any language in the case of Fast Tract Framing, Inc. v. Caraballo, 994 So. 2d 355, that suggested that only wages reported by the employee may be included in the statutory definition of wages.
Read More
Parties stipulated as to the claimant's average weekly wage. However, claimant admitted in testimony that he had not reported his income to the Internal Revenue Service. JCC rejected stipulation between the parties and on appeal, this was affirmed. The JCC may reject a stipulation that is not supported by competent substantial evidence.
Claimant admitted during the hearing that he was an illegal immigrant who had never filed any federal income taxes. The claimant's average weekly wage cannot be based on income that has not been reported for federal income tax purposes.
Claimant had argued that he had not been provided an opportunity to be heard regarding the JCC's rejection of the average weekly wage stipulation. However, the court determined that the claimant failed to show how he could have cured the reporting defect in regards to the average weekly wage calculation by having a hearing on the JCC's rejection of the stipulation. Dissenting and concurring opinion. Dissenting opinion primarily related to the fact that the claimant's average weekly wage had been stipulated to between the parties in the pre-trial stipulation.
Read More
Claimant was an illegal alien and was paid "under the table" in cash at the time of the accident. Accident accepted as compensable by employer/carrier but undemnity denied because there was no record of any wages having been reported to the Internal Revenue Service for the claimant. In April of the year following the accident, the claimant with the assistance of his attorney filed several forms with the IRS including a Form 1040 in which he reported his income for the year of the accident. Court determined that wages had been reported to IRS and accordingly should have been used in calculating claimant’s average weekly wage.
JCC had ordered the payment of a medical bill incurred at the request of an authorized doctor. Court determined that JCC lacked jurisdiction to order payment of the bill. Disputes concerning an employer/carrier’s failure to pay medical bills submitted to it by an authroized physician are subject to the exclusive jurisdiction of the Agency for Health Care Administration (now the Division of Workers' Compensation), not the JCC. Moreover, the claimant has no standing to seek payment of a bill on behalf of the health care provider because he is not responsible for paying the bill. The provider’s sole recourse is to seek payment from the employer/carrier.
Read More
Personnel leasing company (PEO) issued employer (client company) a certificate of workers’ compensation insurance which indicated that workers’ compensation "coverage applies only to those employees leased (by employer from leasing company), not to subcontractors." Employee of subcontractor of employer injured and it was asserted by employer that personnel leasing company was estopped in denying employee of subcontractor had workers’ compensation coverage under the personnel leasing company’s policy. The wording in the certificate of insurance clearly conveyed that only employees leased from the personnel leasing company were covered. There was no promise that the injured worker was insured and accordingly there was no coverage based on promissory estoppel. Third parties may assert a promissory estoppel argument but in this case, there was no promise which should reasonably expect action on the part of another.
Money paid to claimant not reported to the IRS for tax purposes does not constitute "wages" under the Workers’ Compensation Act in regards to calculating average weekly wage. Concurring opinion.
Read More
Claimant, a school teacher, earned a salary of $31,400 per year. Although her contract was for 10 months, she signed an option agreement which spread payment of her wages over 12 months. JCC determined that the claimant’s average weekly wage should be based upon what the claimant was paid for the 13 weeks preceding the date of accident as opposed to the amounts she actually earned for the 10-month contract.
In interpreting Section 440.14(1)(a), Florida Statutes, the court on appeal reversed the JCC’s order and determined that the claimant was entitled to an average weekly wage calculation based upon 1/13 of the amounts actually earned which in the case amounted to the claimant’s annual salary divided by the number of weeks in her 10-month contract agreement.
Read More
Claimant’s income which is not reported to the Internal Revenue Service is not included in the definition of wages when calculating average weekly wage. JCC erred in awarding claimant temporary total disability payments based on an average weekly wage where the claimant received no income that was reported to the Internal Revenue Service.
The Florida workers’ compensation law is purely a creature of statute. In construing the statute, the plain meaning of the text is followed unless it leads to a result that is either unreasonable or clearly contrary to legislative intent. It is not the judiciary’s prerogative to question the merits of a policy preference or substitute its preference for the Legislature’s judgment. Section 440.02(28), Florida Statutes, states that if wages are not reported for federal income tax purposes, those wages are not to be included in the average weekly wage calculation. Even though Section 440.14 makes no reference to including wages reported to the IRS, court determined in this case that Section 440.02(28), Florida Statutes, controls what wages are included in the average weekly wage calculation. Section 440.14, Florida Statutes, provides the method for calculating average weekly wage.
Read More
The question in this case was whether the claimant worked 75% of his "customary hours" in the 13 weeks preceding the accident for purposes of calculating his average weekly wage. If so, his average weekly wage calculation must be made pursuant to Section 440.14(1)(a), Florida Statutes, by averaging the wages during this 13-week period. The JCC determined that "customary hours" means the number of available hours of employment that are provided to the claimant by his employer. The claimant was a project superintendent on a construction site and due to the fluctuations involved in his work, he would work only when jobs were available. He would also not work when there was inclement weather, some holidays, and while he was on vacation. If 40 hours of work were available, then the claimant would get 40 hours but this did not always occur.
Court determined that JCC erred in interpreting "customary hours" to be hours made available to the claimant to work. The evidence reflected that the claimant had worked an average of 36 hours weekly during the year preceding the injury and if this 36-hour average was used as the claimant’s customary hours, the claimant would have worked only 72% of his customary hours in the 13 weeks preceding the injury. Accordingly, Section 440.14(1)(a), Florida Statutes, would not have applied.
Case remanded to JCC to determine which other subsections of Section 440.14(1), Florida Statutes, should be applied in calculating the average weekly wage of the claimant. Court determined that either subsection (1)(d) or (1)(f) would apply. The JCC needed to determine whether the claimant was a part-time or full-time employee to facilitate this determination.
Read More
Section 631.913(2), Florida Statutes, precludes the imposition of penalties and interest in regards to a carrier in receivership. Appellant in this case was a contract third party administrator for the Florida Workers
Read More
Claimant worked only nine (9) weeks prior to accident.
After her first two weeks of employment, she had a pay
raise and was earning the increased pay at the time of
the accident. Court determined that JCC erred in
calculating average weekly wage by averaging the wages
earned while she was employed with the employer,
including her first two weeks of pay at the lower rate.
In this circumstance, calculation of claimant's average
weekly wage is required to be computed on a prospective
basis from the date of injury, based upon the
claimant's rate of pay on the date of injury.
Read More
Appellate court approved the calculation of claimant's
average weekly wage on the basis of the pay she
received for the six full weeks she worked before the
accident. Because the claimant had not worked for 13
weeks immediately preceding the accident, Section
440.14(1)(d), Florida Statutes (1989) applied in
calculating the average weekly wage.
Read More
(en banc). Claimant and employer/carrier stipulated
to average weekly wage. Thereafter, an attempt was
made to redetermine the average weekly wage because
of subsequent case law. There was no evidence of
fraud, misrepresentation or other circumstances that
would render the stipulated average weekly wage void.
Accordingly, stipulation as to average weekly wage
upheld in subsequent proceedings. The principle of
estoppel by judgment bars going behind the stipulated
average weekly wage to relitigate the same issue
whether the claim is identical or collateral. The
policy in Florida which strongly favors finality of
judgments is applicable whether a judgment is reached
through contest or consent. Dissenting opinion. 21
FLW D8 (on Motion for Clarification). The award of
interest on retroactive pension offsets reversed.
Read More
Average weekly wage calculated by using actual wages
earned. The claimant had not worked for 13 weeks
preceding the date of accident and there was no similar
employee. There was no contract for hire entitling the
claimant to any particular hours a week of work or pay.
When there is no contractual provision governing the
number of hours the claimant will work per week, the
JCC must calculate the average weekly wage based upon
the actual wages earned. There was competent and
substantial evidence to support the JCC's finding that
the average weekly wage must be based upon the
claimant's actual wages rather than upon a contract for
hire.
The JCC has broad discretion in determining a fair and
reasonable calculation of average weekly wage under
Section 440.14(1)(d). Court determined that the JCC
appropriately exercised her discretion in determining
what a fair and reasonable average weekly wage was in
this instance. Case points out several instances where
the JCC has broad discretion in determining average
weekly wage when looking at Section 440.14(1)(d),
Florida Statutes. Dissenting opinion.
Read More
JCC determined that in calculating average weekly wage,
the wages of the week in which the accident occurred
should not be used. Appellate court determined this to
be error. The relevant 13 week period for calculating
average weekly wage consists of the 91 days immediately
preceding the injury. See Section 440.14(1)(a),
Florida Statutes.
Read More
Owner/operator of truck required by trucking company to
obtain workers' compensation coverage. Amounts were
deducted from sums otherwise due the owner/operator for
workers' compensation premiums, assuming a wage base of
the owner/operator in the amount of $44,669. It was on
this basis that the owner/operator paid workers'
compensation premiums. In fact, the net amounts
received by the owner/operator, after expenses, totaled
approximately $12,000. Court determined that average
weekly wage calculation should be based upon the wages
used in calculating workers' compensation premium
rather than the actual earnings of the claimant after
deductions for expenses.
Methods other than as set for in Section 440.14 can be
used in calculating an average weekly wage of a
claimant. The JCC is free to use a method other than
that delineated in Section 440.14 as long as that
method has a foundation in Florida law. See Fleitas v.
Today Trucking, Inc., 598 So.2d 252, where the parties
had agreed to the average weekly wage in the contract
agreement.
In this case, the carrier never audited the claimant's
earnings or refunded any premiums to the
owner/operator. If the carrier had intended to pay
benefits based on the owner/operator's actual earnings,
it should have sought to ascertain the value of those
earnings and adjusted the premiums accordingly.
Instead, both parties opted for an easier route,
agreeing on a projected earnings level at the time they
entered into the contract. Parties can stipulate to an
average weekly wage after an accident and there is no
reason to prohibit them from doing so before the
accident occurs.
The claimant in this case worked with her husband as an
owner/operator of the truck. The judge determined that
50% of the payments paid to the owner/operator would be
deemed the wages of the claimant. This determination
was affirmed, the court concluding that competent and
substantial evidence supported this determination. The
claimant testified that she was in partnership with her
husband with no evidence to the contrary. The general
rule is that partners split profits equally unless
otherwise agreed. In this particular case, it was
irrelevant whether the claimant worked during the 13
weeks preceding the accident since Section 440.14,
Florida Statutes, was not used in calculating the
average weekly wage.
Read More
Claimant injured after one week on the job. The claimant had not worked 13 weeks prior to the accident and there was no similar employee. Accordingly, the claimant's average weekly wage should be based upon the full time weekly wages of the claimant determined prospectively either using the contract of employment or the claimant's actual earnings on the job where the claimant is working at the time of the injury. Court determined that judge erred in calculating the average weekly wage on the claimant's past employment prior to being employed with the employer in this instance. Error to utilize past wages from prior employment in calculating average weekly wage.
Read More
Award of wage loss and temporary partial benefits reversed where the claimant, who was self-employed, failed to report to the Internal Revenue Service earnings from the family business in the form of wages. Claimant's joint income tax returns with his wife showed that the wife earned the wages and not himself and the wages were earned entirely due to the efforts of the claimant's wife.A reverse merger occurs when a subsequent unrelated and non-compensable injury is superimposed upon a compensable condition, thereby producing disabilities greater than would be suffered as a result of the injury by itself. Despite this merger of the two conditions, the disabilities resulting solely from the second accident are not compensable. When there is a claim of reverse merger, the JCC is required to determine the extent to which each accident contributed to the injuries and to what extent benefits might yet be due on the compensable injury. In this case, the JCC failed to separate the two injuries when awarding medical benefits and court determined this to be error. Compensation benefits were also not apportioned.
Read More
Trucking company agreed that independent contractor owner/operator could purchase workers' compensation coverage through trucking company's insurance company. In that contract, it was agreed that the owner/operator's average weekly wage was $240.00 per week. Court determined that independent contractor owner/operator was restricted to this average weekly wage calculation and was precluded from attempting to increase average weekly wage calcluation. While Section 440.21(2) invalidates any agreement in which an employee waives his rights to compensation under Chapter 440, it is silent about an independent contractor's right to limit its contracted for entitlement to benefits in exchange for a fixed and presumably lower premium for workers' compensation coverage. In agreeing to a $240.00 average weekly wage calculation, the specific premium amount for workers' compensation benefits was set.
Read More
The claimant in this case was a baseball player employed to play baseball by the Montreal Baseball Club. He was injured at a party that he was required to go to when he dove from a dock sustaining serious injuries. The court ruled that the claimant was not playing baseball at the time of this accident but was rather at a party required of him by his employer. Since he was not playing baseball then he was covered by the Workmen's Compensation statute. If he had been injured while playing baseball then he would not have been covered by the statute. This case is similar to an agricultural worker who ordinarily would be excluded but if he is injured while doing non-agricultural work then he would be covered by the comp. act.
Read More
Court determined that there was an absence of competent evidence to support the judge's findings as to the claimant's correct average weekly wage. In this case the claimant was both the employer and the employee. As both the employer and the employee he failed to report to the I.R.S. any wages earned and kept such inadequate records that it was impossible to determine without his own testimony whether he was paid any wages. The only documentary evidence the I.R.S. returns contradicted the testimony of the claimant that he was paid wages. Court determined that the claimant/employer's testimony was incompetent on the issue of the average weekly wage and wage loss.
Read More
Western Auto v. Moore
567 So.2d 972, 15 Fla. L. Week. D2469, (Fla.App. 1 Dist., Oct 02, 1990)
1990-10-02
Average Weekly Wage
The burden is on the claimant not the employer/carrier to establish average weekly wage. That burden can be met by the claimant's own testimony so long as that testimony is competent substantial and consistent with logic and reason. The judge can reject the employer's schedule of earnings as evidence on average weekly wage. In this case however the claimant failed to prove the amount of his average weekly wage.In determining claimant's average weekly wage based upon the 13 weeks of employment prior to the date of the accident the judge must determine the total wages earned during the 13 week period and then divide that by 13 to reach the average weekly wage.
Read More
In determining average weekly wage for a self-employed claimant income received must be offset by business expenses.
Read More
Employer/carrier controverted claim which thereafter was ruled to be compensable by deputy commissioner thus mandating an award of an attorney's fee. Even though a fee was due because of the denial of the compensability of the claim this did not preclude the deputy commissioner in thereafter determining that bad faith existed thus warranting a fee on this basis also.Deputy commissioner found that the claimant customarily worked 54 hours per week and ruled that the claimant did not work substantially all of 13 weeks preceding the accident when the wage statements show that he only worked 40 hours weekly for this period. Court affirmed deputy commissioner's determination that average weekly wage should not be based on the 13-week basis but rather on the actual contract of employment.Court determined that Deputy Commissioner erred in ordering the employer/carrier to provide psychiatric counseling for claimant's wife and family. Awarding counseling services to members of claimant's family in order to indirectly benefit the claimant was beyond the deputy's authority under Section 440.13 Florida Statutes.Court allowed employer/carrier to take credit against permanent total disability benefits for temporary total compensation paid after MMI. Employer/carrier had a reasonable basis for continuing to pay temporary benefits after MMI.
Read More
Tile Plus v. Albanese
546 So.2d 93, 14 Fla. L. Week. 1591, (Fla.App. 1 Dist., Jul 06, 1989)
1989-07-06
Average Weekly Wage
Claimant testified as to terms of oral contract of employment. The employer and carrier failed to present testimony of a person within its control having knowledge of the employment contract terms. This failure to present evidence justified an inference adverse to the employer/carrier and supported the claimant's testimony as to the terms of the employment contract. Court determined that there was competent and substantial evidence to support the deputy commissioner's finding that the claimant's employment was full-time pursuant to an oral contract.
Read More
In determining whether the claimant worked for 13 weeks prior to the accident in establishing the average weekly wage it does not matter whether during this period the work was for the same or another employer. Evidence in this case showed that the claimant worked for 4 days for another employer during the 13 week period and this employment should have been used in determining in part the average weekly wage calculation.Employer/carrier overpaid claimant based upon incorrect average weekly wage determination. The question in this case is whether the employer/carrier could take credit for these overpayments against future benefits payable. In order to allow for a credit a reasonable basis for the overpayments must be shown and it is presumed that an overpayment is a gratuity. Court denied overpayment credit in this case since the employer/carrier had the appropriate information to determine average weekly wage or could have made a proper inquiry to determine these wages.Court determined that deputy commissioner did not err in refusing to award the claimant a home hot tub where the record established that nearby hot tub facilities were sufficient for the claimant's needs.
Read More
Inclusion of 12 hours weekly overtime in calculation of average weekly wage unsupported by competent substantial evidence that claimant's contract of hire or industry standards entitled him to that amount of overtime.
Read More
Court reversed deputy commissioner's findings as to the amounts earned by the claimant in concurrent employment. The only testimony received by the deputy commissioner was from the claimant's father who stated that the office told me the amounts earned by claimant. This constituted hearsay evidence insufficient to support a determination as to the amounts earned in concurrent employment. No company records or income tax returns from the concurrent employment were presented as evidence.Court determined deputy commissioner erred in requiring the furnishing of various health programs since these benefits were not claimed either in the claim for benefits application for hearing notice of hearing pre-trial stipulation or the summary of issues discussed at the outset of the final hearing.
Read More
Claimant was classified as a casual driver working only those hours actually offered to him by the individual trucking company. He did not have a guaranteed 40 hour or 5 day work week. The claimant did not work 13 weeks preceeding the accident and there was no similar employees. Wages correctly determined on the basis of the contract of employment or the actual earnings of the claimant. Claimant deemed not to be part-time employee.If a 13 week work history exists prior to an accident whether such work is full-time or part-time Section 440.14(1) Florida Statutes directs the deputy commissioner to use these amounts as the wage period for determining the average weekly wage with any other appropriate adjustments in its use for part-time work status. The claimant's average weekly wage should be calculated by averaging the wages of the claimant earned during the 13 week period both full and part-time and where a part-time worker worker has worked in that workers' typically part-time fashion for substantially all of those 13 weeks the average weekly wage should be calculated in the way prescribed by Section 440.14(1)(a) Florida Statutes.In establishing whether a claimant is a part-time worker the following three criteria are used:1) the claimant worked on a part-time basis;2) he had adopted part-time employment as his customary practice and3) under normal working conditions he would probably have remained a part-time employee during the period of disability.The claimant's desires and hopes of full-time employment should not be determinative of the issue of whether the claimant had adopted part-time employment as his customary practice.
Read More
Where claimant did not work 13 weeks prior to accident and there was no similar employee deputy commissioner properly calculated average weekly wage by relying upon the claimant's full-time weekly wages for the 11 weeks prior to her injury.The claimant's relocation to care for her ill father does not constitute a voluntary limitation of income where an otherwise good faith job search was performed.
Read More
Claimant a corporate office of a solely owned corporation worked for 13 weeks preceeding a compensable accident. During this period of time he was paid a salary. In addition a bonus was paid but the bonus was not received until after accident. The court determined that in calculating average weekly wage a portion of the bonus received after the accident should be considered since it was "earned" during the 13 weeks preceding the accident. Court used the terms of Section 440.14(1)(a) Florida Statutes in calculating average weekly wage.
Read More
When an employee furnishes both services and equipment and the furnishing of equipment is a specified and substantial portion of the contract the amount legally attributable to the rental of the equipment should not be included in determining the employee's average weekly wage.
Read More
Claimant had agreed with employer that he would receive $350 per week as monies from the business when it became available. Court determined that average weekly wage was $350 per week basing determination of average weekly wage on Section 440.14(1)(d) F.S. using the contract of employment. Claimant had not earned 13 weeks of pay prior to accident and there was no similar employee.Although a job search is generally required to obtain wage loss benefits obtaining and performing a full-time job was held to be the equivalent of a job search.
Read More
Appellate court rejected testimony of claimant as to average weekly wage. Court ruled that DC erred to base average weekly wage on testimony that employee paid a percentage of gross receipts of business rather than percentage of net profit where tax returns showed that payment of salary on basis of gross receipts would have resulted in business losing money.In order to be sufficient to support a conclusion evidence must be more than competent it must be substantial and must accord with logic and reason as well. The fact that a witness may be competent to testify about a particular subject does not mean that any and all evidence given by the witness concerning that subject may be automatically accepted and relied upon by the deputy.
Read More
Where the claimant works 13 weeks prior to an accident court ruled that it was appropriate to combine the claimant's wages and union benefits for this period in determining correct average weekly wage.In order for an employee to be a part-time employee for determining his average weekly wage it must be established that he: (1) was a part-time worker at the time of the injury (2) had adopted part-time employment as his customary practice and (3) Under normal working conditions probably would have remained a part-time worker during the period of disability.
Read More
"Full time wages" for purposes of Section 440.14(1)(d) F.S. must be based on either the contract of employment or actual earnings. In this case the claimant worked on an "as needed" basis with no specific indication that the employer guaranteed the amount of work that would be available. The claimant's earnings were difficult to compute because his earnings were so erratic. Court determined that the uniqueness of this case did not facilitate application of subsection 440.14(1)(d) F.S. in determining the average weekly wage.
Read More
Claimant was producer delivering wood to employer. He was paid a gross sum out of which his expenses for doing work were deducted. Claimant owned his own equipment and the question in this case relates to the expenses of that equipment to be deducted from his gross payments to determine the correct average weekly wage. Since claimant owned his equipment court ruled that the reasonable depreciation attributable to the equipment both owned and being purchased by the claimant for the thirteen week period prior to the claimant's accident is the proper business expense to be attributed to the equipment. Differentiating those cases where the claimant was leasing his equipment the court ruled that the reasonable rental value of the equipment is not a proper basis for determining the expense to be allotted to the equipment. In addition other expenses for the thirteen week period including labor fuel repair bills insurance and other various business expenses during the thirteen week period prior to the accident should be deducted from the claimant's gross receipts in order to arrive at the proper average weekly wage.
Read More
In determining the correct average weekly wage pursuant to Section 440.14(1)(d) F.S. full-time weekly wages must be determined prospectively by using either the contract of employment or the claimant's actual earnings. In this case there was no evidence of any contract of employment and accordingly the claimant's full-time weekly wages should have been determined using her actual earnings as set forth in the wage statement. This does not mean that the average weekly wage must be determined by simply dividing the total number of weeks worked immediately before the injury into the wages paid during that time. The deputy's duty is to reasonably and fairly determine average weekly wage.
Read More
For 3 weeks of the 13 weeks preceding the compensable accident claimant was receiving temporary total compensation for another accident. Question in this case is whether the 3 weeks of temporary total could be considered as wages in determining that the claimant had worked for substantially 13 weeks preceding the accident. Court ruled that this temporary total compensation was not "wages" within the meaning of Section 440.02(12) F.S.
Read More
Commissions fall under the term "wages" and are to be included in a determination of the claimant's average weely wage. Having found that claimant received commissions over and above his salary, the judge erred in not finding a dollar amount and by not determining an average weekly wage dollar amount which clearly included the amount of commission income. Commission income in this instance should be included in the average weekly wage calculation even though the commissions were not reported to the Internal Revenue Service.
Read More
Claimant participated in the Federally funded comprehensive employment training program commonly referred to as CETA. The program was administered by a community college where the claimant attended classes approximately 4 hours each day and was thereafter assigned to an employer for work experience. While working at the employer's business, she was injured. Since the junior college was the recipient of the CETA funds and administered the program, the college had primary control over the claimant's activities and accordingly, the junior college was the employer. Under Title 29 USCA, Section 823, the prime sponsor of the CETA program is required to provide workers' compensation benefits.Claimant was paid a certain amount per hour to go to class and another hourly rate for actually doing the work at the employer's place of business. Court determined that the claimant's hourly stipend for class attendance should not be included in her average weekly wage calculation but rather only pay for those hours which the parties intended to be work experience.
Read More
Simpkins v. Watson
397 So.2d 432, (Fla.App. 1 Dist., Apr 28, 1981)
1981-04-28
Average Weekly Wage
In determining correct average weekly wage you follow the sequence of first determining whether the claimant had worked 13 weeks immediately prior to the accident. If not you look to a similar employee. If no similar employee you use the actual full-time wage. The actual full-time wage is determined by the contract of employment or by the actual earnings according to the circumstances of each case. In this third alternative the AWW can be ascertained by anticipated earnings which can yield a higher average than the composite of the claimant's actual earnings for the weeks prior to the injury.
Read More
A volunteer fireman is not automatically entitled to the minimum comp. rate or AWW. AWW based on non-monetary payments must actually be proved.
Read More
The question here is how to figure the AWW when the claiment has not worked for 13 weeks prior to the accident and there are no similar employees. The question then is the number of hours that the party intended the employee to work. i.e. the "customary practice" of the employee for working.
Read More
Claimant's increase in wages after the time of the injury should not be used in determining average weekly wage. Increases in wages after date of accident can be used in calculating average weekly wage if retroactively effective to the time of the injury. However, in this case, the increase was not retroactively effected.Court found that it was error to determine average weekly wage of claimant based on an increase in the claimant's earnings after the time of the injury. Increases in wages after accident was not retroactively effective and was not approved until after the injury. The future increase in wages was contemplated at the time the employment commenced but the increase was not retroactively effective.
Read More
The claimant had not worked 13 weeks prior to the accident and there was no similar employee. Accordingly, the claimant's average weekly wage should be based uponthe full time weekly wages of the claimant determined prospectively either using the contract of employment or the claimant's actual earnings on the job where the claimant was working at the time of the injury. Court determined that judge erred in calculating the average weekly wage based on the claimant's past employment prior to being employed with the employer in this instance. Error to utilize wages from prior employment in calculating average weekly wage.
Read More
Claimant rented van to employer for use in company business. The question in this case is whether the van rental amount was considered wages for calculating the claimant'saverage weekly wage. Court determined that rental amount should not be included in average weekly wage calculation. When an employee furnishes both services and equipment and the furnishing of equipment is a specified and substantial portion of the contract, the amount legally attributable to rental of the equipment should not be included in determining the employee's average weekly wage calculation. This is to be distinguished from the payment of a weekly expense allowance of a given sum which could be considered remuneration.
Read More
Court determined that claimant acted reasonably in giving notice of accident to employer. Failure to give proper notice is excusable if the claimant prosecuted her claim with an acceptable degree of diligence. The actual payment of compensation or the providing of medical care, which occurred in this instance, can constitute a waiver of an employer's right to receive timely notice of an employee's injury.Judge of Compensation Claims erred in relying on the wages of a similar employee in calculating the claimant's average weekly wage. The claimant was employed by a nursing service whose nurse employees were free to work as many or as few hours as they wish, or none at all. There were no full time similar employees who were nurses and accordingly, it was error for the judge to base the average weekly wage calculation on the wages of a similar employee.
Read More
