FRANK GOMEZ AND CNA INSURANCE COMPANY, APPELLANTS,
v.
ELIZABETH MURDOCH, APPELLEE
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An employer and workers' compensation carrier appealed a deputy commissioner's order finding that an employee injured while working as an exercise rider was concurrently employed for wage calculation purposes. The court affirmed, holding that concurrent employment under Florida law does not require the employee to be working both jobs on the date of injury, but rather depends on whether the employee held concurrent employment during the relevant 13-week period that was expected to continue.
The court held that the concurrent employment rule under Florida Statutes § 440.14 applies when an employee held concurrent employment during the relevant 13-week period that was expected to continue, regardless of whether the employee was actually working both jobs on the date of injury. The critical inquiry is whether concurrent employment existed during the 13-week period with an expectation of continuation.
[1] The concurrent employment rule in workers' compensation applies when an employee holds multiple jobs during the relevant period for calculating average weekly wage, even…
[2] The critical inquiry for applying the concurrent employment rule is whether the claimant held concurrent employment during the statutory period that was expected to conti…
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“Here, as in Trainer, the critical inquiry must be whether the claimant, during the 13-week period, held concurrent employment which was expected to continue in the future.”
Establishes the legal standard for concurrent employment—whether concurrent employment existed during the 13-week period with expectation of continuation, not whether both jobs were held on the injury date.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceElizabeth Murdoch worked as an exercise rider for Frank Gomez, a thoroughbred horse trainer, for approximately one year before her injury, working 3-5…
The full statement of facts, procedural history, and disposition for this case are member content.
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SMITH, Chief Judge.
Appellant, employer/carrier (e/c), seeks review of a workers’ compensation order finding that claimant was concurrently employed when injured. We affirm.
Claimant suffered a compensable accident when she was thrown from a horse, resulting in a 10% permanent physical impairment of the body as a whole.
The employer herein, Frank Gomez, a trainer of thoroughbred race horses, hired claimant about one year before the accident as an exercise rider. In that capacity, she prepared the horses for racing, working 3-5 hours each day, seven days a week.
In addition to her work for Gomez, Claimant also worked at the race tracks. For the two years prior to her injury, it was her practice to work at Calder, then at Gulfstream, and then to take a break during the Hialeah meet. At the race tracks, she worked in publicity, keeping track of the leading trainers and jockeys and functioning as a statistician. Claimant maintained below, and the d/c apparently agreed, that except for the two-month Hialeah break she was routinely engaged in dual employment.
With respect to the thirteen weeks preceding the industrial accident, claimant worked for Gomez during the entire thirteen weeks and for Gulfstream during the first six weeks. During the last seven weeks preceding the accident, claimant worked only for Gomez, as the Hialeah meet was in progress.
If claimant’s earnings are computed based on her combined employments, claimant’s average weekly wage (aww) would be $296.77, yielding a compensation rate of $187.84. If the Gulfstream employment is excluded, however, claimant’s aww would be $200 with a compensation rate of $133.33. Finding that claimant was concurrently employed when injured, the deputy commissioner determined claimant’s aww based on her combined employments.
The e/c contend that since claimant had only one job on the date of the accident, the concurrent employment rule embodied in section 440.14, Florida Statutes (1982 Supp.), is inapplicable in the present case, citing American Uniform & Rental Service v. Trainer, 262 So. 2d 193 (Fla.1972). We find nothing in the Trainer decision to indicate a ruling contrary to the d/c’s order. The facts in Trainer differ from the facts of the present case, in that in Trainer, the employee was concurrently employed for the last two weeks of the 13-week period, whereas, in the present case, claimant had two jobs during the first six weeks of the 13-week period. In Trainer, the court found claimant entitled to the benefit of the concurrent employment rule, but we do not read the decision as restricting the application of that rule to instances in which the claimant has actually worked for two employers on the day of injury. Here, as in Trainer, the critical inquiry must be whether the claimant, during the 13-week period, held concurrent employment which was expected to continue in the future. Viewed from this perspective, the two cases are analogous. It was merely a fortuitous circumstance that claimant herein was not actually working at both jobs on the date of the accident. We therefore affirm the deputy, commissioner’s order finding that claimant was concurrently employed when injured for the purpose of calculating her average weekly wage.
AFFIRMED.
MILLS and ERVIN, JJ., concur.
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Wal-Mart Stores & Claims Mgmt., Inc. v. Campbell, 694 So. 2d 136 (Fla. 1st DCA 1997)…time or full-time worker that is involved.” He also cited Vegas v. Globe Security, 627 So. 2d 76 (Fla. 1st DCA 1993), rev. den., Globe Security v. Vegas, 637 So. 2d 234 (Fla.1994), as having “reaffirmed the foregoing concepts,” and Gomez v. Murdoch, 520 So. 2d 600 (Fla. 1st DCA 1987), for the proposition that “a critical inquiry must be whether the claimant, during the 13-week period, held concurrent employment which was expected to continue in the future.” He found that in the instant case, as in Gomez, “the…
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Cato Corp. & The Travelers Ins. Co. v. Stuart, 711 So. 2d 1375 (Fla. 1st DCA 1998)…than mere speculation or intention. See Alpha Rent A Car v. Zollikofer, 399 So. 2d 1093 (Fla. 1st DCA 1981). The claimant failed to prove that she had held concurrent employment that was expected to continue in the future. Compare Gomez v. Murdoch, 520 So. 2d 600 (Fla. 1st DCA 1987). Therefore, we reverse the judge’s finding that the claimant held concurrent employment and remand for recalculation of the average weekly wage based on a forty hour week. In all other respects, the order is affirmed. Affirmed…
Authorities Cited
- Am. Unif. & Rental Serv. & Shelby Mut. Ins. Co. v. Verle Trainer & The Indus. Relations Comm'n, 262 So. 2d 193 (Fla. 1972)