DICKERSON INC., AND AETNA CASUALTY & SURETY COMPANY, APPELLANTS,
v.
FREDERICK D. MCCLEARY, APPELLEE
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Dickerson Inc. and its workers' compensation carrier appealed an order awarding a claimant temporary total disability benefits based on an average weekly wage that included equipment rental payments. The court reversed, holding that equipment rental payments should be excluded from wage calculations when the employee furnishes equipment as a substantial portion of the contract.
Equipment rental payments should not be included in calculating average weekly wage. The court held that under the workers' compensation statute, 'wages' means compensation for 'service rendered,' and when an employee furnishes equipment as a specified and substantial portion of the contract, the amount attributable to equipment rental must be excluded from the wage calculation.
[1] Equipment rental payments made to an employee for the use of their own equipment should not be included in the calculation of the employee's average weekly wage for worke…
[2] When an employee furnishes both services and equipment, and the furnishing of equipment is a specified and substantial portion of the contract, the amount attributable to…
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Join FLexlaw to unlock all legal intelligence“when an employee furnishes both services and equipment, and the furnishing of equipment is a specified and substantial portion of the contract, the amount legally attributable to rental of the equipment should not be included in determining the employee's average weekly wage”
Establishes the controlling legal principle that the court applied to reverse the lower decision
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe claimant initially worked as an independent contractor performing welding for Dickerson Inc. using his own equipment at $15 per hour. The parties …
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WENTWORTH, Judge.
Appellants, employer/carrier, seek review of a workers’ compensation order awarding the claimant, appellee here, temporary total disability (TTD) benefits recalculated at an average weekly wage based on the sum of appellee’s hourly wage and equipment rental payments paid to him by his employer. Appellants contend the equipment rental payments should not have been included in the calculation of the average weekly wage. We reverse.
Appellee in 1981 was an independent contractor, performing welding for his own company. He then worked for appellant Dickerson, Inc. as an independent contractor, using his own equipment, and was paid $15 per hour, out of which he paid all work-related expenses, including workers’ compensation coverage, materials, repairs, and gasoline. The parties subsequently entered into a new agreement by which appel-lee worked for Dickerson as a payroll employee. The deputy ultimately found that under the agreement “employer would pay Claimant $5.00 per hour for his labor and $10.00 per hour for the use of his equipment.”
Past decisions of this court have applied the general principle that when an employee furnishes both services and equipment, and the furnishing of equipment is a specified and substantial portion of the contract, the amount legally attributable to rental of the equipment should not be included in determining the employee’s average weekly wage. Alterman Transport Lines, Inc. v. Goetzman, 430 So. 2d 486, (Fla. 1st DCA 1983). See, e.g. Pettis v. Industrial Commission, 91 Ariz. 298, 372 P. 2d 72 (Ariz.1962); Ridgdell v. Tangipahoa Parish School Board, 17 So. 2d 55 (La.App.1944).
In the present case the deputy found “the remuneration has been split up ... apparently to secure certain tax advantages,” and invoked the general precept that form should not govern over substance. But we are unable to follow the conclusion therefrom that the “wage in the instant case should, therefore, include those sums paid by Employer for usage ” of property. The statute provides:
440.02 Definitions.— ...
(12) ‘Wages’ means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer, only when such gratuities are received with the knowledge of the employer. In employment in which an employee receives consideration other than cash as a portion of this compensation, the value of such compensation shall be subject to the determination of the deputy commissioner. (e.s.)
The order assumes that in common practice a worker and his tools may be an “indivisible wage earning unit,” so that a worker might be paid a wage for service which includes a stipulation that personal tools be used. Whether of not that assumption is correct, we are unable to avoid the deputy’s factual determination that in this case the parties’ agreement, in both form and substance, was for payment of “$5.00 per hour for his labor and $10.00 per hour for the use of his equipment.” The term “labor” clearly equates with “service” under the statute, supra, and not with a payment found to have been made for use of equipment, i.e., property.
The order is reversed and the cause remanded for recomputation of appellee’s average weekly wage on the basis of his wage for “service rendered” (e.s.) under the statute.
BOOTH, C.J., and MILLS, J., concur.
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Turnberry Isle Resort & Club v. Madoc D. Fernandez, 666 So. 2d 254 (Fla. 3d DCA 1996)…sement of “pool supplies.”2 Reversed. GREEN, J., concurs. . Contrary to the dissent’s suggestion, the statute itself, by using the phrase "earned remuneration for such service,” has provided for "net remuneration.” . Dickerson, Inc. v. McCleary, 498 So. 2d 651 (Fla. 1st DCA 1986), cited by the dissent, strongly supports, rather than contradicts, our position. That case involved an employer appealing from a workers' compensation order awarding the claimant benefits at an average weekly wage based on the to…1 / 2
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Pony Express Courier & CNA Ins. v. Blair, 632 So. 2d 164 (Fla. 1st DCA 1994)…rrived at an incorrect average weekly wage because Thomas is in-apposite. Instead, they assert that the controlling case law is found in Alterman Transport Lines, Inc. v. Goetzman, 430 So. 2d 486 (Fla. 1st DCA 1983), and Dickerson, Inc. v. McCleary, 498 So. 2d 651 (Fla. 1st DCA 1986). According to the employer and carrier, the correct average weekly wage is $220.00. They arrive at this figure by multiplying claimant’s hourly wage rate ($4.00) by the average number of hours claimant worked weekly (55). They co…
Authorities Cited
- Alterman Transp. Lines Inc. v. Goetzman, 430 So. 2d 486 (Fla. 1st DCA 1983)