HYATT HOTEL AND SCOTT WETZEL SERVICES, APPELLANTS,
v.
JANICE PETERSON, APPELLEE

Fla. 1st DCA | 1986-08-22
No. BK-112
SMITH and WIGGINTON, JJ., concur.
493 So. 2d 1063 Florida District Court of Appeal, First District (1986) Caution
Cited by 9 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In a workers' compensation case, the appellate court reviewed the deputy commissioner's calculation of the claimant's average weekly wage following a compensable injury. The court affirmed the inclusion of wages for extra room cleaning but reversed and remanded regarding retirement benefits, unreported tips, and the value of unused hotel room benefits.


Holding

The court affirmed the inclusion of extra room cleaning wages but reversed and remanded the determination regarding retirement benefits (requiring explanation of vesting), unreported tips (which should not be included due to non-reporting), and the hotel room benefit (which had no realized present-day value).


Headnotes

[1] A deputy commissioner must provide a basis for determining that retirement benefits have vested.

[2] Tips are not included in average weekly wage assessments if the claimant failed to report them to the employer and the IRS.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Section 440.02(21) Florida Statutes (1985) requires that in order for tips to be included in an average weekly wage assessment, their receipt by the claimant must be with knowledge of the employer.”

Establishes the statutory requirement for tip inclusion and the court's rationale for excluding unreported tips

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Janice Peterson was hired as a maid by Hyatt Hotel on April 17, 1981, and was terminated on February 1, 1985. She suffered a compensable injury on Sep…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
JOANOS, Judge.

JOANOS, Judge.

The employer and carrier (E/C) appeal the deputy commissioner’s assessment of claimant’s average weekly wage. We affirm in part and reverse in part.

Claimant was hired to work as a maid by Hyatt Hotel on April 17, 1981 and terminated on February 1, 1985. She suffered a compensable injury on September 20, 1983. Appellant paid temporary total disability benefits to claimant from September 20, 1983 until September 25, 1985, as well as medical expenses. Claimant filed a claim to continue temporary total, temporary partial or wage loss benefits, and for a determination of average weekly wage. E/C and claimant stipulated to all components of claimant’s weekly wage, except that (1) claimant was not entitled to credit for retirement benefits because the retirement plan had not vested; (2) claimant was not entitled to the value of her tips because they were not reported as required; (3) claimant was not entitled to the value of cleaning extra rooms because no documentation existed to prove she had been previously paid for such efforts; and (4) claimant was not entitled to credit for the value of the use of a hotel room where the hotel room was not used.

A hearing was held and the deputy commissioner found that (1) claimant’s pension plan had vested; (2) claimant was entitled to credit for unreported tips, (3) claimant was entitled to credit for extra room cleaning wages; and (4) claimant was entitled to credit for the value of the unused hotel rooms.

The deputy commissioner determined in a single sentence in his order that claimant’s retirement benefits had vested, but gave no basis for his conclusion. Claimant was employed with Hyatt only two years, which is less than the four year minimum requirement enabling a Hyatt Hotel employee to receive partial retirement benefits. Also, there is no evidence that claimant satisfies the apparent alternative eligibility requirement of being permanently, totally, disabled. Therefore we reverse and remand on this issue to afford the deputy commissioner an opportunity to explain why he determined that the retirement benefits have vested, or alternatively, to re-assess claimant’s average weekly wage without including the value of such benefits.

Section 440.02(21) Florida Statutes (1985) requires that in order for tips to be included in an average weekly wage assessment, their receipt by the claimant must be with knowledge of the employer. In the present case, claimant not only failed to report her tips to her employer, the record revealed that she also failed to declare her tips to the Internal Revenue Service. We will not encourage such violations of the law by now compensating claimant for tips suddenly acknowledged and reported. Therefore we reverse and remand on this issue to afford the deputy commissioner an opportunity to re-assess claimant’s average weekly wage without including the value of her unreported tips.

As to point three, appellants provided no evidence to contradict claimant’s testimony regarding the extra rooms regularly cleaned, and the credibility of claimant’s testimony in support of his claim is a matter for the deputy to decide. Irving v. City of Daytona Beach, 472 So. 2d 810 (Fla. 1st DCA 1985). Therefore we affirm that part of the deputy commissioner’s order which includes wages earned for cleaning extra rooms in the assessment of claimant’s average weekly wage.

Finally, we find that the deputy .commissioner erred by including the value of a hotel room available to claimant for three nights per quarter when claimant only actually used the hotel room on one occasion. The test for determining whether a fringe benefit must be included in the average weekly wage assessment is whether the employee receives a tangible benefit of a real present day value. Fair-Way Restaurant v. Fair, 425 So. 2d 115, 116 (Fla. 1st DCA 1982). Claimant’s contingent benefit of the unused hotel room was unrealized and of no personal benefit to her. Therefore we reverse and remand on this point also, to allow the deputy commissioner an opportunity to re-calculate claimant’s average weekly wage without the value of the hotel rooms benefit.

Affirmed in part, reversed and remanded.

SMITH and WIGGINTON, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Carvell v. Caviness Motor Co., 552 So. 2d 250 (Fla. 1st DCA 1989)
    …yment but that illness precluded him from ever actually taking possession of the vehicle. Although the mere right to an employment benefit does not mean that benefit must automatically be included in the average weekly wage, Hyatt Hotel v. Peterson, 493 So. 2d 1063 (Fla. 1st DCA 1986), claimant was entitled to the demonstrator and did not work long enough to permit a conclusion that he deliberately decided not to accept it. Accordingly, on remand the judge is instructed to include the value of the demonstrator…
  • T.G. LEE Foods, Inc. v. Benny Farley, 544 So. 2d 265 (Fla. 1st DCA 1989)
    …no authority to make a determination regarding appellee’s vesting in a profit-sharing plan. To the extent that such a determination concerned workers’ compensation benefits, the deputy commissioner did have jurisdiction. See Hyatt Hotel v. Peterson, 493 So. 2d 1063 (Fla. 1st DCA 1986); and Marion Correctional Institution v. Kriegel, 522 So. 2d 45 (Fla. 5th DCA 1988). In the instant case, the deputy commissioner limited his findings in regard to appellee’s vesting in the plan to its effect on appel-lee’s averag…
  • Sphnix Enters., Inc. v. Raydell Santa Cruz, 561 So. 2d 1348 (Fla. 1st DCA 1990)
    …ities were received but had failed to establish a reasonable reporting procedure. Hanks v. Tom Brantley’s Tire Broker, 500 So. 2d 614 (Fla. 1st DCA 1987). These facts served to distinguish this case from the circumstances in Hyatt Hotel v. Peterson, 493 So. 2d 1063 (Fla. 1st DCA 1986). Failure to report tips to the IRS is not a bar to their inclusion in arriving at a correct average weekly wage, where the employer was aware of the tips being received. Preferred Aircraft Painting v. Duarte, 532 So. 2d 715 (Fla.…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw