QUALITY PAINTING, INC., AND HILL, RICHARDS & COMPANIES, INC., APPELLANTS,
v.
MARGIE HARRISON, APPELLEE
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In this workers' compensation appeal, the court addressed the proper methodology for calculating a claimant's average weekly wage when she held concurrent employment at the time of her industrial injury. The court reversed the deputy's inclusion of anticipated future earnings and clarified that the calculation should include only actual earnings from both jobs during the 13 weeks preceding the injury.
The court held that the average weekly wage should include only actual earnings from both the painter employment (one day worked) and the cashier employment (13 weeks preceding injury), excluding all anticipated future earnings. The court also held that fringe benefits should not be discounted for seasonal suspensions outside the 13-week calculation period, as section 440.14(3) contains no such limitation and the claimant had not elected seasonal worker status.
[1] Anticipated future earnings cannot be included in the calculation of average weekly wage for workers' compensation purposes.
[2] A claimant's average weekly wage should be established by utilizing combined wages actually earned in dissimilar concurrent employments during the 13 weeks immediately pr…
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Join FLexlaw to unlock all legal intelligence“We find that claimant's average weekly wage properly includes her earnings for the one day which she actually worked as a painter, but should not include any anticipated future earnings.”
Establishes the core holding that only actual wages earned, not speculative future wages, should be included in average weekly wage calculations.
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Join FLexlaw to unlock all legal intelligenceClaimant was injured on her first day of employment as a painter, which was intended as a three-day trial period. She simultaneously maintained full-t…
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WENTWORTH, Judge.
Employer/servicing agent appeal, and claimant cross-appeals, a workers’ compensation order by which claimant’s average weekly wage was determined. We find that the deputy erred by including potential future earnings in the average weekly wage computation, and we reverse the order appealed in this regard.
Claimant was injured on her first day of work for the employer. This was to be a period of trial employment as a painter, which claimant expected to last for three days. Claimant also continued to work for another employer as a cashier, and had held this full-time employment during the 13 weeks immediately preceding her industrial injury. Every year in the late fall and early winter claimant experienced a seasonal layoff from her cashier employment and during these layoffs she would obtain other employment. It was anticipated that if her three day trial as a painter were satisfactory she would work in this employment during her next layoff.
In determining claimant’s average weekly wage the deputy included anticipated earnings for three days trial employment as a painter, as well as claimant’s earnings as a cashier during the 13 weeks immediately preceding the industrial injury. Both parties disagree with this methodology. We find that claimant’s average weekly wage properly includes her earnings for the one day which she actually worked as a painter, but should not include any anticipated future earnings. Since claimant had been employed for 13 weeks as a cashier her average weekly wage should be established pursuant to section 440.14(l)(a), Florida Statutes, by utilizing the combined wages actually earned in both employments during the 13 weeks immediately preceding the industrial injury. American Uniform & Rental Service v. Trainer, 262 So. 2d 193 (Fla.1972); see also, Watson v. Merrill-Stephens Dry Dock & Repair Co., 1 FCR 355 (1956).
While section 440.14(1)(a) refers to the employment in which the claimant is working at the time of the injury, American Uniform & Rental Service v. Trainer, supra, indicates that in cases of dissimilar concurrent employment section 440.14(1)(a) will apply, and the combined wages approach should be utilized, if the claimant has worked for the requisite 13 weeks in one of the employments. Newell v. Seaboard Contractors, 473 So. 2d 787 (Fla. 1st DCA 1985), which mandates a different approach when section 440.14(1)(a) is inapplicable, does not impact the present case since claimant maintained concurrent employment and had worked as a cashier for the 13 weeks immediately preceding her injury. Claimant’s average weekly wage should therefore include her earnings as a cashier, and her earnings for the one day of employment as a painter, but not any anticipated future earnings.
In addition to her salary claimant also received fringe benefits in her employment as a cashier. In accordance with section 440.14(3), Florida Statutes, the deputy reduced claimant’s average weekly wage for that period of her disability during which she continues to receive the fringe benefits. Employer/servicing agent contend that a reduction should also be made when the fringe benefits cease during claimant’s seasonal layoff. However, section 440.14(3) contains no limitation in this regard and claimant has not elected to be treated as a seasonal worker pursuant to section 440.14(1)(c), Florida Statutes. In the circumstances presented claimant’s av erage weekly wage is properly determined based upon her earnings during the 13 weeks immediately preceding the injury, and section 440.14, Florida Statutes, provides no basis to discount fringe benefits for a seasonal suspension outside of this period.
The order appealed is reversed as to the inclusion of two days of anticipated future earnings in the average weekly wage determination. The order is otherwise affirmed and the cause remanded.
ZEHMER and BARFIELD, JJ., concur.
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Vegas v. Globe Sec. & CIGNA, 627 So. 2d 76 (Fla. 1st DCA 1993)…, 1 FCR 355 (1956). The Commission in Watson found the combination of concurrent earnings to be “within the contemplation of Section 440.14(1),” 1 FCR at 357. This court has followed Watson and American Uniform in Quality Painting, Inc. v. Harrison, 529 So. 2d 1172, 1173 (Fla. 1st DCA 1988), stating “that in cases of dissimilar concurrent employment section 440.14(1)(a) will apply, and the combined wages approach should be utilized, if the claimant has worked for the requisite 13 weeks in one of the employment…
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Edwards v. Caulfield, 560 So. 2d 364 (Fla. 1st DCA 1990)…oyee” and thereby excludes them from required coverage under the act. Accordingly, while wages from concurrent employment are generally included in the determination of a claimant’s average weekly wage, see, e.g., Quality Painting, Inc. v. Harrison, 529 So. 2d 1172 (Fla. 1st DCA 1988) and Section 440.14(1)(a), Florida Statutes (1987), earnings as an independent contractor are not includable in this determination. See Sunshine Ace Hardware v. Gray, 541 So. 2d 1236 (Fla. 1st DCA 1989); Randell, Inc. v. Chism, 40…
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Wal-Mart Stores & Claims Mgmt., Inc. v. Campbell, 694 So. 2d 136 (Fla. 1st DCA 1997)
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Am. Unif. & Rental Serv. & Shelby Mut. Ins. Co. v. Verle Trainer & The Indus. Relations Comm'n, 262 So. 2d 193 (Fla. 1972)
- Newell v. Seaboard Contractors & Claims Ctr., 473 So. 2d 787 (Fla. 1st DCA 1985)