JOHN BRIGHT, APPELLANT,
v.
CITY OF TAMPA AND POE RISK MANAGEMENT SERVICES, INC., APPELLEES

Fla. 1st DCA | 1989-07-13
No. 88-1999
BOOTH and JOANOS, JJ., concur.
546 So. 2d 1122 Florida District Court of Appeal, First District (1989) Positive Treatment
Cited by 12 cases

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Holding

The court held that the value of employer-provided transportation should be included in the average weekly wage calculation, and the 'deemed earnings' provision was improperly applied for months after July.


Headnotes

[1] The value of an employer-provided personal benefit, if reasonably identifiable, used with uniformity and regularity, and not solely a work-created reimbursement, must be…

[2] The "deemed earnings" provision in wage loss benefits calculations is improperly applied absent a voluntary limitation of income or an inadequate job search during the re…

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Facts & Procedural History

A claimant injured at work appealed a worker's compensation order regarding his average weekly wage and wage loss benefits. The claimant used an emplo…

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Opinion of the Court
MINER, Judge.

MINER, Judge.

The claimant appeals a worker’s compensation order determining his average weekly wage (AWW) and his wage loss benefits. He asserts that the deputy commissioner (dc) erred by failing to include in the determination of his AWW the value of employer-provided transportation. He also contends that the dc improperly applied the “deemed earnings” provision of section 440.15(3)(b)2, Florida Statutes (1981), in calculating his wage loss. We affirm in part and reverse in part.

The claimant, a Tampa City Police sergeant, used an employer-provided city patrol car to travel to and from work twelve miles per week. He suffered a work-related low-back injury in 1983 which eventually caused him to retire and seek alternative employment. He drew both disability pension benefits and supplemental wage loss benefits while newly employed in 1987 as a claims investigator with the City of Tampa Risk Management Department, earning $760.80 bi-weekly. In July 1987, he voluntarily terminated this city employment to work for the state as a full-time correctional probation officer earning $722.44 biweekly. After reviewing the medical records of his low-back condition, the state terminated his employment m September 1987.

Despite the parties’ stipulation that the claimant conducted a good-faith work search, the employer/carrier (e/c) computed his wage loss benefits by subtracting as deemed earnings income from his city claims position and his city police pension benefits.1 The dc approved the e/c’s calculations. He found that the e/c properly computed claimant’s AWW without credit for the value of employer-provided transportation to and from work. He also found that the e/c properly computed the claimant’s wage loss benefits deducting his pension benefits and income from the city investigator job based on his voluntary termination of that employment.

Although the deputy commissioner has wide fact-finding latitude in determining “wages” for the purpose of an AWW calculation, this determination must be based on competent substantial evidence. If the claimed “personal benefit” is reasonably identifiable, used with uniformity and regularity and not a solely work-created, work-related and make-whole reimbursement that would not exist but for the special requirements of the job, then the employee has suffered a “wage loss” and the dc must include its value in calculating the claimant’s average weekly wage. § 440.02(21) Fla.Stat. (1981); Layne Atl. Co. v. Scott, 415 So. 2d 837, 838-39 (Fla. 1st DCA 1982). The claimant derived a personal benefit from his use of a city patrol car, which benefit falls within the guidelines set out in Layne Atl. Co.2 Accordingly, it was error for the dc to exclude the value of such use from his AWW computation.

The dc properly applied the “deemed earnings” provision in determining the claimant’s wage loss benefits for the month of July, based upon his finding that the claimant had voluntarily limited his employment by quitting his job with the city. However, he improperly applied the “deemed earnings” provision in determining wage loss for the subsequent months.3 Wage loss benefits are benefits which must be claimed separately each month. Wiley Jackson Co. v. Webster, 522 So. 2d 987, 988 (Fla. 1st DCA 1988); Deltona Corp. v. Morris, 418 So. 2d 1274, 1275 (Fla. 1st DCA 1982). Absent a voluntary limitation of income or an inadequate job search during the time period in question, application of the “deemed earnings” provision is improper. Brookings v. Hunzinger Constr., 512 So. 2d 952, 953 (Fla. 1st DCA 1987). Full-time employment is evidence of a good faith job search.4

After voluntarily limiting his income in July, the claimant worked full-time for the state in August and September 1987. After the September termination, he immediately commenced a good faith job search. The e/c failed to demonstrate that suitable employment commensurate with the claimant’s abilities was available or that the claimant refused suitable employment after July. Therefore, competent substantial evidence supports the deputy commissioner’s application of “deemed earnings” in July 1987, but not in the following months.

The order appealed from is reversed and remanded with instructions to recompute the claimant’s average weekly wage and wage loss benefits in accordance with the foregoing.

BOOTH and JOANOS, JJ., concur. . The claimant collected $2,000 in monthly pension benefits.

. The value of this personal benefit, twenty cents, is presumptively established by applying Section 440.13(4), Florida Statutes (Supp.1982) (now Section 440.13(5), Florida Statutes (Supp. 1988)) and Section 112.061(7)(d)(l), Florida Statutes (1981). Carruth v. Allied Prods. Co., 452 So. 2d 634 (Fla. 1st DCA 1984).

. Bado v. Canteen Corp., 513 So. 2d 1364, 1365 (Fla. 1st DCA 1987).

. I.A.T.S.E. v. Nesselroad, 534 So. 2d 709 (Fla 1st DCA 1988), Rios v. Fred Teitelbaum Constr., 522 So. 2d 1015, 1018 (Fla. 1st DCA 1988), Cog v. Fuchs Baking Co., 507 So. 2d 138, 141 (Fla. 1st DCA 1987).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Vegas v. Globe Sec. & CIGNA, 627 So. 2d 76 (Fla. 1st DCA 1993)
    …, this court has analyzed the inclusion or noninclusion of fringe benefits in AWW with specific reference to the statutory definition of wages. See Pan American World Airways v. Mash, 573 So. 2d 383, 385 (Fla. 1st DCA 1991); Bright v. City of Tampa, 546 So. 2d 1122, 1124 (Fla. 1st DCA 1989); Layne Atl. Co. v. Scott, 415 So. 2d 837, 838-839 (Fla. 1st DCA 1982). Concurrent earnings analyses, on the other hand, have relied upon the legal concept of AWW as embodied in section 440.-14, and we will not ignore the pl…
  • Dubois Farms, Inc. v. Paul, 566 So. 2d 923 (Fla. 1st DCA 1990)
    …uent ruling that Dr. Kaplan’s treatment was reasonable and necessary, the E/C became responsible for payment of his bills. Id. Next, the JCC properly included the cost of employer provided transportation in claimant’s AWW.1 Bright v. City of Tampa, 546 So. 2d 1122 (Fla. 1st DCA 1989) (personal benefit derived by claimant, a police officer, through his use of city patrol car for transportation to and from work should be considered in calculating AWW); Carruth v. Allied Products Co., 452 So. 2d 634 (Fla. 1st DC…
  • PAN Am. World Airways & GAB Bus. Servs., Inc. v. Mash, 573 So. 2d 383 (Fla. 1st DCA 1991)
    …term is not construed to include a make-whole reimbursement for uniquely work-related expenses which are created by and within the employment. Layne Atlantic Company v. Scott, 415 So. 2d 837, 839 (Fla. 1st DCA 1982); compare Bright v. City of Tampa, 546 So. 2d 1122, 1124 (Fla. 1st DCA 1989). The costs of parking and shuttle transportation should not have been included in claimant’s AWW, since these expenses were unique to claimant’s employment at the Miami International Airport, are no longer incurred by claim…

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