EDUARDO LAVIN, APPELLANT,
v.
ALTON BOX BOARD COMPANY AND HARTFORD INSURANCE GROUP, APPELLEES

Fla. 1st DCA | 1983-04-27
No. AK-248
JOANOS and THOMPSON, JJ., concur.
431 So. 2d 202 Florida District Court of Appeal, First District (1983) Positive Treatment
Cited by 8 cases

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Synopsis

Eduardo Lavin appealed a workers' compensation order regarding his average weekly wage, date of maximum medical improvement, temporary total disability benefits, and catastrophic loss benefits following a compensable hand injury. The court affirmed the computation of average weekly wage and the MMI date, but reversed the award of catastrophic loss benefits.


Holding

The court affirmed that the deputy commissioner properly computed average weekly wage by examining Lavin's contract of employment rather than using the statutory formula or actual wages from the ten-week period, and that the MMI date was supported by competent, substantial evidence. The court reversed the award of catastrophic loss benefits because there was no total loss of use of the hand due to organic damage to the nervous system.


Headnotes

[1] Temporary total disability benefits are not considered wages for the purpose of calculating average weekly wage.

[2] When other statutory subsections are inapplicable, a deputy commissioner may determine average weekly wage based on the contract of employment.

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Key Quotes

“The E/C's argument is patently without merit because Lavin was receiving TTD benefits during the eleventh, twelfth, and thirteenth weeks preceding the injury. These benefits clearly are not "wages" within the meaning of Section 440.02(12), Florida Statutes (1979).”

Establishes that TTD benefits do not qualify as wages for purposes of computing average weekly wage under the statutory formula

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Facts & Procedural History

Lavin sustained a compensable hand injury on February 8, 1980, after being back on the job for only ten weeks. He had previously received temporary to…

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

Lavin appeals and the employer/carrier (E/C) cross appeals from the deputy commissioner’s order which established Lavin’s average weekly wage (AWW) and the date of maximum medical improvement (MMI), granted temporary total disability (TTD) benefits, and awarded catastrophic loss benefits. We affirm in part and reverse in part.

Lavin sustained a compensable injury to his hand on 8 February 1980. At the time of his injury, he had been back on the job for only ten weeks, having previously sustained another injury on the job with the same employer for which he was paid TTD benefits. Lavin was continuing to receive these benefits during the eleventh, twelfth, and thirteenth weeks before his injury of 8 February. In addition to his regular salary, Lavin was given money for meals, and the E/C made contributions to a group insurance plan on his behalf.

In computing Lavin’s AWW, the deputy commissioner examined several of Lavin’s earlier pay periods in order to determine what hours and wages were called for by his “contract of employment.” Lavin argues that the deputy commissioner was required to use his actual wages for the ten-week period preceding the injury of 8 February. The E/C urges that Section 440.-14(l)(a), Florida Statutes (1979), should have been used to compute the AWW because Lavin was employed “during substantially the whole of 13 weeks immediately preceding the injury....” We reject both arguments.

The E/C’s argument is patently without merit because Lavin was receiving TTD benefits during the eleventh, twelfth, and thirteenth weeks preceding the injury. These benefits clearly are not “wages” within the meaning of Section 440.02(12), Florida Statutes (1979). The deputy commissioner, therefore, was correct in refusing to use Section 440.14(l)(a) in computing La-vin’s AWW.

Lavin’s contention that the deputy commissioner was bound to compute the AWW based on his actual wages for the ten-week period that he was on the job prior to his injury is likewise without merit. The deputy commissioner was at liberty to try to determine what was called for by Lavin’s contract of employment pursuant to Section 440.14(l)(d), Florida Statutes (1979), since none of the other subsections of Section 440.14(1) were applicable. Simpkins v. Watson, 397 So. 2d 432 (Fla. 1st DCA 1981); Penuel v. Central Crane Service, 232 So. 2d 739 (Fla.1970).

The E/C also argues that the deputy commissioner erred by including in his calculations compensation for meals and the employer’s contributions to a group insurance plan. We disagree. Jess Parrish Memorial Hospital v. Ansell, 390 So. 2d 1201 (Fla. 1st DCA 1980).

Both parties contest the deputy commissioner’s finding that MMI was reached on 16 September 1980. We conclude, however, that .this finding is supported by competent, substantial evidence and, therefore, it should not be disturbed.

The deputy commissioner did err, however, in awarding catastrophic loss benefits pursuant to Section 440.15(2)(b), Florida Statutes (1979), because there was no total loss of use of the hand because of organic damage to the nervous system. La-vin argues that under the 1979 version of Section 440.15(2)(b), a claimant need not prove that total loss of use was due to organic damage to the nervous system. We recently rejected this argument in E.B. Malone Corp. v. Johnson, 425 So. 2d 622 (Fla. 1st DCA 1983).

Accordingly, that portion of the order awarding catastrophic loss benefits is reversed. In all other respects, the order is affirmed.

JOANOS and THOMPSON, JJ., concur.


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Citator

Cited By

  • …ion provided for in this paragraph extend beyond 6 months from the date of injury. The emphasized language was added in the 1979 amendment and deleted in 1980. . E.B. Malone v. Johnson, supra, was recently followed in Lavin v. Alton Box Board Co., 431 So. 2d 202 (Fla. 1st DCA 1983).…
  • Univ. OF Fla. & Div. of Risk Mgmt. v. Collins, 678 So. 2d 503 (Fla. 1st DCA 1996)
    …rposes, plus includable fringe benefits. § 440.14(l)(d), Fla. Stat. (1987) (“If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used.”) See Lavin v. Alton Box Bd. Co., 431 So. 2d 202 (Fla. 1st DCA 1983). We also reject the argument that it was error to include Claimant’s accrued annual leave in calculating AWW. We have now held that leave programs, because they represent valuable consideration over and above the hourly wage, fi…
  • Wal-Mart Stores & Claims Mgmt., Inc. v. Campbell, 694 So. 2d 136 (Fla. 1st DCA 1997)
    …); Prestressed Decking Corp. v. Medrano, 556 So. 2d 406 (Fla. 1st DCA 1990); Adart South Polybag Mfg. v. Goldberg, 495 So. 2d 826 (Fla. 1st DCA 1986); Orange-Co of Florida v. Waldrop, 454 So. 2d 724 (Fla. 1st DCA 1984); Lavin v. Alton Box Board Co., 431 So. 2d 202 (Fla. 1st DCA 1983); Bruck v. Glen Johnson, Inc., 418 So. 2d 1209 (Fla. 1st DCA 1982); Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981); Simpkins v. Watson, 397 So. 2d 432 (Fla. 1st DCA 1981); Penuel v. Central Crane Service…

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