ROBERT RIOS, APPELLANT,
v.
FRED TIETELBAUM CONSTRUCTION AND U.S.F. & G., APPELLEES
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Robert Rios appeals the denial of wage-loss benefits after his employer discontinued payments based on his ownership of a corporation. The court reverses, holding that corporate profits are includable in average weekly wage calculations only if they result almost entirely from the claimant's personal management and endeavor, and that the employer bears the burden of proving what portion of profits should be apportioned to other factors.
The court holds that corporate profits are includable in average weekly wage calculations only if they are 'almost entirely the direct result of the claimant's personal management and endeavor.' Once such a finding is made, the deputy commissioner must further inquire to determine what portion of profits is 'fairly attributable either to the labor of others or a return on capital,' with the burden of proof for such apportionment resting on the employer/carrier.
[1] Corporate profits may be considered in the computation of average weekly wage for wage-loss benefits, but only if the profits are almost entirely the direct result of the…
[2] When corporate profits are found to be directly related to a claimant's endeavors, the deputy commissioner must inquire further to determine what portion of those profits…
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Join FLexlaw to unlock all legal intelligence“the test is whether the business profits are "almost entirely the direct result of the claimant's personal management and endeavor."”
Establishes the proper legal standard for determining whether corporate profits should be included in average weekly wage calculations for wage-loss benefits.
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Join FLexlaw to unlock all legal intelligenceRios suffered a compensable workplace accident in 1983 and reached maximum medical improvement in October 1984, receiving wage-loss benefits through N…
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ERVIN, Judge.
The claimant appeals the final order of the deputy commissioner (dc), contending that the dc erred in finding that the claimant, because of profits realized by his business, had the ability to earn and was in fact earning in excess of the amount necessary to qualify for wage-loss (W-L) benefits. We reverse the order and remand for further determination by the dc.
The claimant suffered a compensable accident in 1983 and reached maximum medical improvement (MMI) in October 1984, receiving W-L benefits through November 1986. The employer/carrier (e/c) explained that it discontinued paying W-L benefits after concluding that the claimant was the owner and sole shareholder of Broward Vertical Blinds, thereby voluntarily limiting his income by failing to make a good faith job search. The claimant then filed a claim for W-L benefits for December 1986,1 and for January through April 1987. In his order denying W-L benefits for January-April, the dc found that the claimant, as sole corporate officer and shareholder, “in essence ... is the corporation.” The dc then concluded that the claimant had the ability to earn and in fact was earning in excess of the amount necessary to qualify for W-L.
A determination of whether corporate profits should be considered in the computation of average weekly wage (AWW) is based on a factual evaluation of the record. See MDM Marble Co. v. Jackson, 512 So. 2d 305 (Fla. 1st DCA 1987).
Initially, we agree that there is competent, substantial evidence in the record to support the dc’s conclusion that the claimant’s business profits should be included in a determination of his AWW. In so stating, we do not agree, however, as implied by the dc’s order, that a corporation’s profits must be computed as personal earnings if it is shown that the claimant is the sole corporate officer and shareholder. Rather, the test is whether the business profits are “almost entirely the direct result of the claimant’s personal management and endeavor.” 512 So. 2d at 307 (emphasis omitted).
Once a finding has been made that corporate profits are directly related to the claimant’s endeavors, the dc must inquire further, determining what part of the business profits are “fairly attributable either to the labor of others or a return on capital (including borrowed) if any.” Id. The burden of proof for apportionment of this deductible share rests with the e/c.
The order of the dc is reversed and remanded for further proceedings consist ent with this opinion. On remand, the dc is directed to determine, either upon the present record, or after conducting further proceedings whether, after examining claimant’s business profits during the applicable period, the claimant is entitled to W-L benefits for each month, rather than the four-month period by averaging claimant’s profits. Section 440.15(3)(b)l. See Carpenters R. V Service v. Eckert, 455 So. 2d 590 (Fla. 1st DCA 1984).
REVERSED AND REMANDED for further consistent proceedings.
JOANOS and NIMMONS, JJ., concur. . The dc denied the claim for December W-L benefits, finding that the claimant voluntarily limited his income and that the operation of a struggling business would not excuse the claimant’s failure to conduct a good faith job search. This court in a previous opinion reversed, holding that the record did not support the conclusion that the claimant had voluntarily limited his income. See Rios v. Fred Teitelbaum Construction, 522 So. 2d 1015 (Fla. 1st DCA 1988).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pishotta v. Pishotta Tile & Marble, Inc., 613 So. 2d 1373 (Fla. 1st DCA 1993)…ages a claimant is actually paid. Accordingly, “[a] determination of whether corporate profits should be considered in the computation of average weekly wage ... is based on a factual evaluation of the record.” Rios v. Fred Tietelbaum Construction, 528 So. 2d 1293 (Fla. 1st DCA 1988). The principle of law applicable here is that “ ‘where a claimant ... is the sole or primary owner of the business from which he seeks compensation benefits, monies received by virtue of his status as owner ... will not be charac…
Authorities Cited
- Rios v. Fred Teitelbaum Constr. & U.S. Fid. & Guar. Co., 522 So. 2d 1015 (Fla. 1st DCA 1988)
- Carpenters R.V. Serv. & S.C. Ins. Co. v. Eckert, 455 So. 2d 590 (Fla. 1st DCA 1984)
- MDM Marble Co. & CNA Ins. Co. v. Janett C. Jackson, 512 So. 2d 305 (Fla. 1st DCA 1987)