TOMMY C. PATE, APPELLANT,
v.
MADDOX FOUNDRY & MACHINE WORKS AND AETNA INSURANCE COMPANY, APPELLEES
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Yes. In a 5-to-4 decision, the court held that a machine which transforms materials physically under the control of a programmed computer is patentable. In addition, and without overruling the earlier Gottschalk v. Benson decision holding that a mathematical procedure cannot be patented, the majority in Diehr said the Benson decision did not render all computer programs unpatentable, contrary to what Justice John Paul Stevens argued in his strong dissenting opinion in Diehr. The Diehr court left undecided the question of whether computer programs standing by themselves could ever be patentable. Immediately following the Diehr ruling, software patent applications began flowing into the Patent Office in a steady stream that remains undiminished today. (Thirteen years later, the Court of Appeals for the Federal Circuit, in In re Alappat, ruled that virtually all computer programs are patentable.)
[1] An "equivalent employee" may not be used to determine an average weekly wage in a workers' compensation case when the claimant worked more than 90 percent of their total…
[2] Vacation benefits may not be added to an average weekly wage in a workers' compensation case unless the claimant produces evidence that the benefit has vested.
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McCORD, Judge.
In this worker’s compensation appeal, Pate contends the deputy commissioner erred in computing his average weekly wage and in determining the date on which the carrier should be allowed to claim an offset against social security benefits. We agree and reverse.
Both parties agree that the deputy’s figure of $251.71 for Pate’s average weekly wage was incorrect. The carrier maintains that the error was merely mathematical, and it advances $258.87 as the correct amount. Pate, however, asserts that the deputy improperly excluded vacation benefits and further erred by failing to use an “equivalent employee” to determine the wage.
Neither position is entirely correct. The deputy properly denied Pate’s request to use an equivalent employee’s earnings in determining the average weekly wage because Pate worked more than 90 per cent of his total customary full-time hours of employment. See Sections 440.-14(1), (2), Florida Statutes (1977). The deputy also properly denied the request to add vacation benefits to the average weekly wage because Pate failed to produce evidence that this benefit had vested. See Sunland Training Center v. Thomas, 408 So. 2d 685, cert. denied, 389 So. 2d 1116 (Fla.1980). However, we cannot accept the carrier’s suggestion for a correct average weekly wage because our calculations yield a different figure. Therefore, we remand for the deputy’s redetermination of the average weekly wage.
We also reverse the portion of the order in which the deputy determined that the carrier was entitled to set off social security benefits to Pate beginning on the date it requested information from the social security administration. Such an offset cannot be applied retroactively. Florida Department of Transportation v. Lindsey, 383 So. 2d 956 (Fla. 1st DCA 1980).
Upon remand, the deputy should reconsider the award of an attorney’s fee in light of the increase in Pate’s benefits. Section 440.34.
Accordingly, this cause is remanded for proceedings consistent with this opinion.
SHIVERS, J„ and MASON, ERNEST K, (Retired) Associate Judge, concur.
McCORD, Judge.
Appellant seeks clarification of that portion of our opinion which states:
The deputy properly denied Pate’s request to use an equivalent employee’s earnings in determining his average weekly wage because Pate worked more than 90 per cent of his customary full-time hours of employment. See Sections 440.14(1), (2), Florida Statutes (1977).
The argument in relation to this on appeal was whether the average weekly wage should be determined by using an “equivalent employee” (appellant’s argument) because appellant had not worked 90 per cent of the total customary full-time hours of employment.
The payroll sheets for appellant on pages 76 through 82 of the record indicate that appellant worked more than 90 per cent of a 40 hour work week during the 13 weeks before the injury. Thus, on remand, the issue of average weekly wage may be decided within the parameters of § 440.14(1) without referring to a “similar employee.” Appellant’s attorney’s fees for his representation of appellant on this appeal is denied.
Appellant’s motion for rehearing is denied and for clarification beyond that contained herein is denied.
SHIVERS, J., and MASON, ERNEST E., (Retired) Associate Judge, concur.
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Vida Appliances, Inc. v. Gates, 416 So. 2d 1186 (Fla. 1st DCA 1982)…mputing the claimant’s average weekly wage, although we feel this case provides a much stronger factual basis upon which to affirm. This is because the vacation pay, having been paid, had obviously vested, cf. Pate v. Maddox Foundry & Machine Works, 414 So. 2d 524 (Fla. 1st DCA, 1982) petition for rev. docketed, no. 62,090 (Fla., May 20,1982), and was comparable to actual wages, which is of course included in the computation of a claimant’s average weekly wage. § 440.14(l)(a), Fla.Stat. (1979). This case is…
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Hirschensohn v. Personnel, 455 So. 2d 537 (Fla. 1st DCA 1984)…ary full-time hours of employment within the 13 week period were. Without a proper predicate in the record, we cannot say that the deputy commissioner erred in utilizing the method of section 440.14(l)(a). Cf. Pate v. Maddox Foundry & Machine Works, 414 So. 2d 524 (Fla. 1st DCA), rev. dismissed, 419 So. 2d 1199 (Fla. 1982) (stating that the issue of AWW could be decided within the parameters of § 440.-14(1) without referring to a “similar employee” where the record showed that appellant worked more than 90% o…
Authorities Cited
- Dep't of Transp. v. Lindsey, 383 So. 2d 956 (Fla. 1st DCA 1980)
- Thomas v. Sunland Training Ctr. & Div. of Risk Mgmt., 408 So. 2d 685 (Fla. 1st DCA 1982)