DOROTHY NASH, APPELLANT,
v.
HOLIDAY INN AT CALDER AND EMPLOYER INSURANCE OF WAUSAU, APPELLEES
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Dorothy Nash appealed a workers' compensation decision denying inclusion of gratuities in her average weekly wage calculation and refusing additional temporary total disability benefits. The court held that the deputy commissioner erred by not considering the claimant's uncontradicted testimony regarding gratuities and affirmed the denial of additional disability benefits.
The court held that the deputy commissioner erred in not considering the claimant's uncontradicted testimony regarding gratuities in computing her average weekly wage, as the employer's knowledge of the tips satisfied statutory requirements and there was no contradicting evidence. However, the court affirmed the denial of additional temporary total disability benefits because there was no evidence the claimant was unable to work due to physical incapacity during the interim period.
[1] Gratuities received in the course of employment from others than the employer are includable in computing average weekly wage when received with the employer's knowledge,…
[2] An employer's knowledge of gratuities and lack of a reporting mechanism for such gratuities supports their inclusion in the calculation of average weekly wage.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In the absence of competent, substantial evidence regarding the exact amount of the gratuities, such gratuities cannot be included in computing the claimant's average weekly wage.”
The deputy commissioner's stated rationale for excluding gratuities, which the appellate court found erroneous.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDorothy Nash was an employee at Holiday Inn at Calder who received tips ranging from $20-$30 per week. Her employer knew she received tips, instructed…
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PER CURIAM.
The claimant here urges that the deputy commissioner committed reversible error in failing to include her gratuities in arriving at her average weekly wage. The deputy commissioner stated in his order:
“In the absence of competent, substantial evidence regarding the exact amount of the gratuities, such gratuities cannot be included in computing the claimant’s average weekly wage.” (emphasis supplied)
Section 440.02(12), Florida Statutes, states that wages shall include “... gratuities received in the course of employment from others than the employer, only when such gratuities are received with the knowledge of the employer.” Claimant offered the only testimony regarding the amount of gratuities, testifying that she had received between $20.00 and $30.00 per week in tips. The evidence also indicates that her employer knew she was receiving tips, instructed her that she need not report these tips, and, in fact, had no reporting provision. It is true that the deputy commissioner does not have to accept the highest figure or even the lowest figure testified to by the claimant. However, in the absence of testimony to the contrary, we believe the deputy commissioner was in error in not considering claimant’s testimony regarding gratuities in computing her average weekly wage. See Magic City Bottle & Supply Company v. Robinson, 116 So. 2d 240, 241-242 (Fla.1959); Top of the Home Restaurant v. Mourino, IRC Order 2-3490 (July 26, 1978). See also Torres v. Eden Roc Hotel, 238 So. 2d 639 (Fla.1970). Accordingly, we must remand for reconsideration on this point.
Claimant also urges entitlement to additional temporary total disability benefits, which were voluntarily paid by the employer/carrier from December 14, 1978, to June 25, 1979. On June 26, 1979, she began employment with the Michael-Ann Russell Jewish Community Center. After working there for approximately three weeks, she terminated her employment and was not able to secure work again until November 3, 1979. Upon these facts she urges that she is entitled to additional temporary total disability benefits for this interim period. We disagree. There is no evidence which indicates she was unable to work due to her physical incapacity during the time she quit her job with the Michael- Ann Russell Jewish Community Center and the time she found new employment. The absence of such evidence precludes her from obtaining additional temporary total disability benefits. Westco Aluminum, Inc. v. Johnson, IRC Order 2-2400, (September 25, 1973), cert. denied 289 So. 2d 738 (Fla.1974).
Affirmed in part; reversed and remanded for further proceedings consistent with this opinion.
SHIVERS and WENTWORTH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.
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Value Rent A CAR v. Liccardo, 603 So. 2d 680 (Fla. 1st DCA 1992)…antley's Tire Broker, 500 So. 2d 614, 615 (Fla. 1st DCA 1986) (where a reasonable reporting procedure has been established, only those tips reported in compliance with the procedure may be included in the calculation); Nash v. Holiday Inn at Calder, 395 So. 2d 306, 307 (Fla. 1st DCA 1981). On different facts, but similar reasoning, the court reversed an award of temporary partial disability and wage loss benefits to an employee/claimant, because the claimant’s tax returns refuted his testimony that he receiv…
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PIC N Save Drug Co. v. Moore, 412 So. 2d 410 (Fla. 1st DCA 1982)…ng a dispute with her employer). There is no affirmative proof, however, that her failure to seek or obtain other equally remunerative employment upon her termination at Majic Market was related to her disabilities. . Nash v. Holiday Inn at Calder, 395 So. 2d 306 (Fla. 1st DCA 1981); Seminole Inn v. Ray, 408 So. 2d 1061 (Fla. 1st DCA 1981). . The order contains a general provision requiring payment of wage loss benefits “from August 12, 1980 to date and continuing so long as wage loss forms are properly sub…
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Sphnix Enters., Inc. v. Raydell Santa Cruz, 561 So. 2d 1348 (Fla. 1st DCA 1990)…e employer was aware of the tips being received. Preferred Aircraft Painting v. Duarte, 532 So. 2d 715 (Fla. 1st DCA 1988); International House of Pancakes v. Ellis, 492 So. 2d 454 (Fla. 1st DCA 1986). Also, in Nash v. Holiday Inn at Calder, [*1349] 395 So. 2d 306 (Fla. 1st DCA 1981), we held that it was error for the judge not to include tips in the computation of average weekly wage even though the only testimony of the amount of the tips was supplied by claimant’s testimony (although it was held that the j…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Metro. Life Ins. Co. v. Kimbro, 116 So. 2d 240 (Fla. 1959)
- Pilar N. Torres v. Eden ROC Hotel, 238 So. 2d 639 (Fla. 1970)
- McMASTER v. Bechtel Corp., 289 So. 2d 738 (Fla. 1974)