JEFFREY APHOLZ, APPELLANT,
v.
NORTH AMERICAN VAN LINES AND LIBERTY MUTUAL INSURANCE CO., APPELLEES
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In a workers' compensation case, the court reversed the deputy commissioner's calculation of an injured truck driver's average weekly wage. The court held that for an independent contractor regularly employed for thirteen weeks before injury, the average weekly wage must be computed under Florida Statute § 440.14(1)(a), and remanded for proper recalculation accounting for legitimate business expenses.
The court held that where a claimant has been regularly employed for thirteen weeks prior to injury, the average weekly wage must be computed pursuant to Florida Statute § 440.14(1)(a), and the case was remanded for recalculation. The court clarified that the claimant's payments toward the purchase of his tractor should be considered business expenses, not wages.
[1] An employer-employee relationship may be stipulated to exist even if a claimant is an independent contractor.
[2] When a claimant has been regularly employed for thirteen weeks prior to a compensable accident, their average weekly wage must be computed pursuant to Section 440.14(1)(a…
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Join FLexlaw to unlock all legal intelligence“Where [as here] a claimant has been employed regularly for thirteen weeks prior to his compensable accident, his or her average weekly wage for that period shall be computed pursuant to Section 440.14(l)(a), Florida Statutes”
Establishes the controlling legal standard for calculating average weekly wage for independent contractors employed thirteen weeks before injury
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Join FLexlaw to unlock all legal intelligenceJeffrey Apholz, an independent contractor truck driver for North American Van Lines, suffered a compensable back injury on August 16, 1979. He was pai…
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WIGGINTON, Judge.
As the sole issue presented in this appeal, claimant contends the deputy commissioner erred in setting his average weekly wage at $581.40. We agree and reverse.
This case is remarkably similar to Coles v. Gainesville Bonded Warehouse, 409 So. 2d 1205 (Fla. 1st DCA 1982), on which we rely for our holding. As happened in Coles, claimant herein suffered a compensable injury to his back on August 16, 1979, while employed as an independent contractor truck driver for North American Van Lines, a furniture-moving common carrier. Despite his status, the parties stipulated that an employer-employee relationship existed.
As an independent contractor, claimant did not receive a straight salary. Rather, he was paid a commission of 48% of his line haul transportation as a transportation charge plus a commission on “extras,” such as when there was an exceptional distance from the van to the home. From these commissions, claimant paid his various business expenses.
The deputy apparently arrived at claimant’s average weekly wage by deducting certain business expenses from claimant’s gross earnings for 1979, and thereafter dividing that sum by the number of weeks during that period. However, the deputy erred. We reiterate our holding in Coles that
[w]here [as here] a claimant has been employed regularly for thirteen weeks prior to his compensable accident, his or her average weekly wage for that period shall be computed pursuant to Section 440.14(l)(a), Florida Statutes ... We therefore must remand this cause for re-computation of the claimant’s average weekly wage pursuant to Section 440.-14(l)(a). In view of the ambiguity in the record regarding the exact nature and amount of the claimant’s business expenses ... the deputy shall hold hearings, receive evidence, and make such additional findings as may be necessary to establish the claimant’s business expenses and thereby appropriately determine his average weekly wage ...
409 So. 2d at 1206. In this regard, claimant’s payments toward the purchase of his tractor shall be considered business expenses, not wages.
REVERSED and REMANDED for further proceedings consistent with this opinion.
BOOTH and NIMMONS, JJ., concur.
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Mayflower Corp. & Crawford & Co. v. Davis, 655 So. 2d 1134 (Fla. 1st DCA 1994)…s issue.” Alterman, 430 So. 2d at 487. It is also improper for a JCC to determine the AWW by deducting business expenses from claimant’s earnings for the year and then dividing it by the number of weeks in a year. Apholz v. North American Van Lines, 427 So. 2d 1094, 1095 (Fla. 1st DCA 1983). Despite the uncertainty involved, we do not think it is necessary to remand for a determination of Claimant’s actual wages. In Fleitas, the contract rate was 2.13 times the claimant’s actual wages and there, the JCC requi…
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City OF Hialeah & Alexsis, Inc. v. Jimenez, 527 So. 2d 936 (Fla. 1st DCA 1988)…earnings for an award of wage loss benefits pursuant to section 440.15(3)(b), Florida Statutes, the deputy utilized claimant’s net earnings after deducting business expenses. This methodology has been approved in Apholz v. North American Van Lines, 427 So. 2d 1094 (Fla. 1st DCA 1983), and Coles v. Gainesville Bonded Warehouse, 409 So. 2d 1205 (Fla. 1st DCA 1982). While Apholz and Coles involved claimants working as independent contractors after their industry injuries, the rationale of those cases is likewise…
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Fla. Timber Prods. v. Felton Williams, 459 So. 2d 422 (Fla. 1st DCA 1984)…g the 13-week period preceding the accident should be deducted from claimant’s gross income in order to arrive at the AWW. Relying on Coles v. Gainesville Bonded Warehouse, 409 So. 2d 1205 (Fla. 1st DCA 1982), and Apholz v. North American Van Lines, 427 So. 2d 1094 (Fla. 1st DCA 1983) she placed the value of the use of all of claimant’s equipment at only $29 per week, which was the amount claimant actually paid' out for the equipment during the applicable 13-week period. The Gainesville Bonded Warehouse and…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coles v. Gainesville Bonded Warehouse & Am. Ins. Co., 409 So. 2d 1205 (Fla. 1st DCA 1982)