DENNIS RIVERS, APPELLANT,
v.
SCA SERVICES OF FLORIDA, INC. AND HARTFORD INSURANCE GROUP, APPELLEES
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Dennis Rivers appealed a workers' compensation order that calculated his average weekly wage using a similar employee's wages and denied attorney's fees. The court reversed, holding that Rivers had worked sufficient hours to qualify for wage calculation under the applicable statute and that the fee denial was premature because the bad faith issue was never separately litigated with specific factual evidence.
The court held that Rivers satisfied the "substantially the whole of 13 weeks" standard under Section 440.14(1)(a) because he worked more than 90 percent of customary full-time hours, so average weekly wage should have been calculated under that provision rather than Section 440.14(1)(b). The court also held that attorney's fees based on bad faith must be reversed and remanded because the issue was never separately litigated with factual evidence going directly to the bad faith claim.
[1] Average weekly wage is calculated using the wages of a similar employee only if the injured employee has not worked during substantially the whole of the 13 weeks immedia…
[2] "Substantially the whole of 13 weeks" in the context of calculating average weekly wage means not less than 90 percent of the total customary full-time hours of employmen…
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Join FLexlaw to unlock all legal intelligence“"Substantially the whole of 13 weeks" is defined in Section 440.14(l)(a), Florida Statutes (1983), as "not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole."”
Establishes the statutory definition of the key standard for determining which wage calculation method applies.
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Join FLexlaw to unlock all legal intelligenceRivers suffered an industrial accident on August 8, 1983. The deputy found that Rivers did not work during the 13 weeks preceding the accident and cal…
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MILLS, Judge.
Rivers appeals from a workers’ compensation order determining average weekly wage (AWW) and denying attorney’s fees. He contends the deputy erred in calculating AWW pursuant to Section 440.14(l)(b), Florida Statutes (1983), and in denying attorney’s fees based on the employer/earrier’s alleged bad faith. We agree on both issues and reverse.
The deputy calculated AWW for the period following the industrial accident of 8 August 1983 based on the wages of a similar employee as provided in Section 440.-14(l)(b). He found Rivers did not work for the 13 weeks preceding the industrial accident.
The wages of a similar employee should be used to determine AWW only if the injured employee has not worked “during substantially the whole of 13 weeks immediately preceding the injury.” Section 440.-14(l)(b). “Substantially the whole of 13 weeks” is defined in Section 440.14(l)(a), Florida Statutes (1983), as “not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole.”
Although Rivers worked less than 90 percent of the total working days within the 13 week period, the record shows he worked more than 90 percent of the total customary full-time hours of employment within the 13-week period. The deputy should have calculated AWW pursuant to Section 440.14(l)(a) rather than Section 440.14(l)(b).
Rivers’ claim for attorney’s fees was denied based on the deputy’s finding that the employer/carrier did not act in bad faith. Among other things, Rivers contends the denial was premature because the deputy did not conduct a separate factfinding proceeding before deciding the issue.
Section 440.34(3)(b), Florida Statutes (1983), does not require a separate hearing on entitlement to attorney’s fees based on bad faith, but only that entitlement be specifically litigated as a separate issue with factual evidence presented going directly to that issue. The deputy may not infer bad faith, or lack of bad faith, from general testimony. Veterans Septic Tank Service v. Wallace, 445 So. 2d 389 (Fla. 1st DCA 1984); Embry-Riddle Aeronautical University v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981).
Here, the issue was never separately litigated with factual evidence going directly to it. The fee denial must be reversed and remanded for further hearing.
Reversed and remanded for proceedings consistent with this opinion.
JOANOS and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Haas v. Seekell, 538 So. 2d 1333 (Fla. 1st DCA 1989)…utes (1983)2 must be specifically litigated as a separate issue at the hearing with factual evidence presented going directly to that issue. Charles Sales Corp. v. Filmare, 518 So. 2d 304 (Fla. 1st DCA 1987); Rivers v. SCA Services of Florida, Inc., 465 So. 2d 634 (Fla. 1st DCA 1985); Veterans Septic Tank Service v. Wallace, 445 So. 2d 389 (Fla. 1st DCA 1984). In the present case, entitlement to attorney’s fees based on bad faith was not specifically litigated as a separate issue at the hearing. Although clai…
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Rivers v. SCA Servs. OF Fla., Inc., 488 So. 2d 873 (Fla. 1st DCA 1986)…laimant appeals an order setting the amount of attorney’s fees for the employer’s bad faith failure to pay workers’ compensation benefits. The order was entered in proceedings held pursuant to our decision in Rivers v. SCA Services of Florida, Inc., 465 So. 2d 634 (Fla. 1st DCA 1985). Finding error in the Deputy Commissioner’s determination of the amount of a reasonable fee, we reverse. The determination of the amount of the attorney’s fee was submitted by the parties upon the facts contained in a stipulatio…
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Charles Sales Corp. & Aetna Cas. & Sur. Co. v. Filmore, 518 So. 2d 304 (Fla. 1st DCA 1987)…that an award of bad-faith fees under Section 440.-34(3)(b) must be specifically litigated as a separate issue at hearing. Veterans Septic Tank Service v. Wallace, 445 So. 2d 389, 390 (Fla. 1st DCA 1984); and Rivers v. SCA Services of Florida, Inc., 465 So. 2d 634, 635 (Fla. 1st DCA 1985). Review of the record demonstrates that entitlement to bad-faith fees was not separately litigated, and the fee award, accordingly, must be reversed and remanded for further proceedings. See Rivers at 635. BOOTH, WIGGINTON…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Embry-Riddle Aeronautical Univ. & the Hartford Ins. Grp. v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981)
- Veterans Septic Tank Serv. v. Wallace, 445 So. 2d 389 (Fla. 1st DCA 1984)