ORANGE-CO OF FLORIDA AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
ANTOINETTE WALDROP, APPELLEE
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Orange-Co of Florida and Liberty Mutual Insurance Company appeal a workers' compensation order determining the injured employee Antoinette Waldrop's average weekly wage. The appellate court reverses the wage determination, finding that the deputy erred in relying on a purported contract of employment when no such contract existed in the record.
The court reversed the wage determination, holding that because no contract of employment for any period of time appears in the record, the average weekly wage must be determined using the claimant's actual earnings as reflected in the wage statement, not a hypothetical contract rate. The deputy must reasonably and fairly determine average weekly wage on remand.
[1] An average weekly wage in workers' compensation cases must be determined prospectively using either the contract of employment or the claimant's actual earnings.
[2] A contract of employment for a specific duration must be established by evidence to be used in determining an employee's average weekly wage.
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Join FLexlaw to unlock all legal intelligence“Under this provision, full-time weekly wages must be determined prospectively by using either the contract of employment or the claimant's actual earnings.”
Establishes the statutory framework for determining average weekly wage under Section 440.14(l)(d)
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Join FLexlaw to unlock all legal intelligenceWaldrop was injured and filed a workers' compensation claim. The deputy found she earned $3.67 per hour and was hired to work 40 hours per week, calcu…
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MILLS, Judge.
Orange-Co of Florida and Liberty Mutual Insurance Company (E/C) appeal from a workers’ compensation order determining, among other things, Waldrop’s average weekly wage. We find merit in the E/C’s contention that the average weekly wage was erroneously based on a contract of employment and reverse on that issue. In all other respects, we affirm.
The deputy stated in his order:
I find the claimant had an average weekly wage at the time of her accident of $146.80 per week. I base this finding on her testimony that she was earning $3.67 per hour and I base it also on the employer and carrier’s wage statement which confirms that earnings. The employee testified that she was hired to work 40 hours a week, there being absolutely no other testimony, I accept that as the contract rate. In other words, $3.67 for a 40 hour week or $146.80, giving her a compensation rate of $92.87 per week.
Clearly, the deputy applied Section 440.14(l)(d), Florida Statutes (1983), which provides for the determination of an average weekly wage based on the full-time weekly wages of the injured employee. Under this provision, full-time weekly wages must be determined prospectively by using either the contract of employment or the claimant’s actual earnings. Bruck v. Glen Johnson, Inc., 418 So. 2d 1209, 1211 (Fla. 1st DCA 1982). The E/C points out, and we agree, that despite the deputy’s finding of a contract of employment for 40 hours per week, there is nothing in the record indicating a contract of employment for any period of time. Waldrop’s full-time weekly wages, therefore, should have been determined using her actual earnings as set out in the wage statement furnished by the E/C and admitted into evidence without objection. We hasten to add that this does not mean 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. Florida Cast Stone v. Dehart, 418 So. 2d 1271 (Fla. 1st DCA 1982).
That part of the order determining average weekly wage is reversed and the cause remanded for a determination of average weekly wage consistent with this opinion.
BOOTH and BARFIELD, JJ., concur.
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Jackson v. Hochadel Roofing Co. & Claims Ctr., 657 So. 2d 1266 (Fla. 1st DCA 1995)…he claimant is legally entitled to earn.”). When there is no contractual provision governing the number of hours the claimant will work per week, the JCC must calculate the AWW based upon the actual wages earned. See Orange-Co of Florida v. Waldrop, 454 So. 2d 724, 725 (Fla. 1st DCA 1984); see also Waldorf v. Jefferson County School Bd., 622 So. 2d 515 (Fla. 1st DCA 1993) (calculating fair and reasonable AWW for part-time substitute bus driver which accounted for the small number of hours he worked); Alternan…1 / 2
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Benny L. Waldorf v. Jefferson Cnty. Sch. Bd. & Gallagher Bassett Servs., 622 So. 2d 515 (Fla. 1st DCA 1993)…no real guidance regarding the computation of claimant’s average weekly wage. We have previously noted that the “duty [of the judge of compensation claims] is to reasonably and fairly determine average weekly wage.” Orange-Co of Florida v. Waldrop, 454 So. 2d 724, 725 (Fla. 1st DCA 1984). In performing that task, the judge of compensation claims is “not a cipher or a calculating robot, but ... a judge of [the] claimant’s unique employment situation.” Florida Cast Stone v. Dehart, 418 So. 2d 1271, 1272 (Fla.…
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Wal-Mart Stores & Claims Mgmt., Inc. v. Campbell, 694 So. 2d 136 (Fla. 1st DCA 1997)…995); Blind v. It’s a Bit Fishy, 639 So. 2d 703 (Fla. 1st DCA 1994); 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, 3…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bruck v. Glen Johnson, Inc., 418 So. 2d 1209 (Fla. 1st DCA 1982)
- Fla. Cast Stone & Royal Globe Ins. Co. v. Dehart, 418 So. 2d 1271 (Fla. 1st DCA 1982)