TILE PLUS AND CNA INSURANCE COMPANIES, APPELLANTS,
v.
DOMENIC ALBANESE, APPELLEE
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Tile Plus and CNA Insurance appealed a workers' compensation order increasing Domenic Albanese's average weekly wage based on a new oral employment contract. The court affirmed, holding that competent, substantial evidence supported the deputy commissioner's finding of a new full-time employment agreement, and the employer's failure to refute the employee's testimony justified an adverse inference.
The court held that the employer's failure to present testimony from a person with knowledge of whether the employment was a new contract or continuation of prior terms justified an adverse inference against the employer. Competent, substantial evidence supported the finding that claimant's employment was full-time pursuant to a new oral agreement, and the deputy commissioner properly calculated the average weekly wage using the two weeks' wages immediately preceding the injury.
[1] An employer's failure to present testimony from a knowledgeable employee regarding a disputed fact justifies an inference adverse to the employer.
[2] Competent, substantial evidence supports a finding that an employee's full-time employment was pursuant to a new oral agreement, even if the employer did not present test…
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“The employer and carrier's failure to present the testimony of a person within its control having knowledge of a fact at issue, i.e., whether claimant's employment was pursuant to the continuation of the prior agreement or pursuant to a new contract of employment, justifies an inference adverse to those parties.”
Establishes the adverse inference doctrine applied against the employer for failing to present contradictory evidence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDomenic Albanese, a claimant in a workers' compensation case, testified to terms of a new full-time employment agreement with his employer after being…
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ZEHMER, Judge.
The claimant, Domenic Albanese, obtained a workers’ compensation order increasing his average weekly wage pursuant to section 440.14(l)(d), Florida Statutes (1987). The employer and carrier appeal, urging that the deputy commissioner erred in calculating the claimant’s average weekly wage on the basis of an oral contract for full-time employment of the claimant by the employer. They argue that this ruling is not supported by competent, substantial evidence that the employer and the employee had made an agreement for claimant’s “new” employment, as distinguished from a continuation of the terms of claimant’s prior employment with this employer before he was laid off.
We note that claimant testified to the terms of the “new” employment agreement, and that the employer, who was represented at the hearing, did not present any testimony or otherwise refute the claimant’s testimony in this regard.
The employer and carrier’s failure to present the testimony of a person within its control having knowledge of a fact at issue, i.e., whether claimant’s employment was pursuant to the continuation of the prior agreement or pursuant to a new contract of employment, justifies an inference adverse to those parties. Jones v. Citrus Central, Inc., 537 So. 2d 1123 (Fla. 1st DCA 1989); Tri-State Systems, Inc. v. Department of Transportation, 500 So. 2d 212, 215 (Fla. 1st DCA 1986), rev. denied, 506 So. 2d 1041 (Fla.1987). See also, Southern Cross Steamship Co. v. Firipis, 285 F. 2d 651, 659 (4th Cir 1960), cert. denied, 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.2d 859 (1961); 29 Am.Jur.2d, Evidence § 180 (1967).
The record thus contains competent, substantial evidence to support the deputy commissioner’s finding that claimant’s employment was full time pursuant to a new oral agreement.
Spartan Electronics v. Russell, 513 So. 2d 153 (Fla. 1st DCA 1987), said by appellants to be controlling, is patently distinguishable. In Spartan claimant did not work for two weeks of the thirteen-week period prior to her injury, either because the plant was closed or she was laid off from work, but there was no evidence or finding of a new contract of employment commencing after the two-week lay-off.
Thus, the deputy commissioner in Spartan properly used the full-time weekly wages paid during the eleven weeks prior to claimant’s injury. In this case, competent, substantial evidence supports the finding that claimant received full-time weekly wages for only the two-week period immediately preceding his injury pursuant to his new contract of employment; therefore, the deputy commissioner properly used the two weeks’ wages to compute the average weekly wage under section 440.14(l)(d).
AFFIRMED.
WENTWORTH and NIMMONS, JJ., concur.
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Am. Boom & Barrier, Inc. v. Stewart, 592 So. 2d 1178 (Fla. 1st DCA 1992)…within thirty days on agreement of past medical benefits indicates the judge continues to exercise jurisdiction in this matter. Accordingly, the order is not a final order and is therefore not appealable. Coca-Cola Company— Foods Division v. Davis, 546 So. 2d 93 (Fla. 1st DCA 1989). This appeal is dismissed for lack of jurisdiction. BOOTH, BARFIELD and MINER, JJ., concur.…
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City OF Miami v. Rantanen, 645 So. 2d 4 (Fla. 1st DCA 1994)…coverage, a necessary component in the determination of claimant’s average weekly wage. The City’s failure to produce such information more readily within its control justifies an inference adverse to the City’s position. See Tile Plus v. Albanese, 546 So. 2d 93 (Fla. 1st DCA 1989). Thus, the JCC did not err in establishing a reasonable value for claimant’s fringe benefits and did not err in his determination of claimant’s average weekly wage. The City next argues that the JCC erred in determining that the…
Authorities Cited
- Kohler Co. v. Local 833, 365 U.S. 869 (U.S. 1961)
- Romero v. Garcia & Diaz, Inc., 365 U.S. 869 (U.S. 1961)
- S. Cross S.S. Co., Inc. v. Georgios Firipis, 285 F.2d 651 (4th Cir. 1960)
- Tri-State Sys., Inc. v. Dep't OF Transp., 500 So. 2d 212 (Fla. 1st DCA 1986)
- Jones v. Citrus Cent., Inc., 537 So. 2d 1123 (Fla. 1st DCA 1989)
- Spartan Elecs. & CNA Ins. Co. v. Russell, 513 So. 2d 153 (Fla. 1st DCA 1987)