MICHAEL J. CARVELL, APPELLANT,
v.
CAVINESS MOTOR COMPANY, APPELLEE
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A workers' compensation case where the court reversed the judge's determination of the claimant's average weekly wage, holding that the similar employee wage calculation method should have been applied and that the value of a demonstrator automobile should have been included in the wage calculation.
The court held that the judge erred in refusing to apply the similar employee wage calculation method because the claimant clearly met all the relevant tests: he was paid at the same commission rate as similar employees, worked in the same locality, performed the same type of work, and worked in the same sales crew. The court also held that the value of the demonstrator automobile should have been included in the average weekly wage because the claimant was entitled to it upon hiring and did not work long enough to conclude he deliberately rejected it.
[1] A similar employee wage calculation method is applicable when the claimant performs the same type of work in the same locality and is paid at the same rate as other emplo…
[2] The value of an employment benefit, such as a demonstrator automobile, may be included in an average weekly wage calculation if the claimant was entitled to the benefit a…
Previewing 2 of 3 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 proper test to guide one would be to take a 'similar' employee who does the same type of work, and one who is working in the same locality, and if possible one who worked in the same crew.”
Establishes the legal standard for applying the similar employee wage calculation method under Florida workers' compensation law.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMichael Carvell, an experienced used car salesman, was hired by Caviness Motor Company on September 18, 1987. He worked only 38 hours before being inj…
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BOOTH, Judge.
This cause is before us on appeal of an order determining claimant’s average weekly wage. For the following reasons, we reverse and remand.
Claimant is a used car salesman with approximately 20 years’ experience in used car sales and management. The employer hired him as a used car salesman on September 18, 1987. He worked two sixteen-hour days, a four-hour day, and a two-hour day before being injured. The partial days and his failure to work on some of the other days were due to a tooth abscess which kept him out of work. When he returned to work on September 24, a car rolled over his right foot and injured him.
During the 38 hours he worked, claimant earned $749.13 in commissions. There were also five other used car salesmen who were paid at the same commission rate as claimant. Those salesmen earned substantially more than claimant that week and also had higher average earnings for both the past 13 weeks and the prior year. All the salesmen worked at the same location, were part of the same sales crew, and performed exactly the same work. The record also reflects that all salesmen had the option of using a demonstrator automobile immediately upon hiring. If they accepted, their W-2 forms reflected a $125 monthly salary.
Although claimant argued that his average weekly wage should have been calculated under the Section 440.14(1)(b), Florida Statutes, similar employee method, the judge of compensation claims found that method inapplicable and instead applied the Section 440.14(1)(d) actual wages method. The judge also refused to include the value of the demonstrator in the average weekly wage, because claimant never actually used it.
The judge erred in refusing to apply the similar employee wage calculation method. In Coleman v. Burnup & Sims, Inc., 95 So. 2d 895 (Fla.1957), the Supreme Court held that “[t]he proper test to guide one would be to take a ‘similar’ employee who does the same type of work, and one who is working in the same locality, and if possible one who worked in the same crew.” Another factor is whether the supposedly similar employee is paid at the same rate as the claimant. AMF Power Boat Division v. Gilchrist, 409 So. 2d 159 (Fla. 1st DCA 1982). The record reflects that claimant clearly met each of these tests. All of the salesmen were paid at the same commission rate, and claimant worked in the same locality, at the same type of work, with the same sales crew. See also Patterson v. Whitten, 57 Ala.App. 297, 328 So. 2d 301 (Civ.App.1976). It was also error to refuse to include the value of the demonstrator automobile in claimant’s average weekly wage. The record reflects that claimant was entitled to the car upon beginning his employment but that illness precluded him from ever actually taking possession of the vehicle. Although the mere right to an employment benefit does not mean that benefit must automatically be included in the average weekly wage, Hyatt Hotel v. Peterson, 493 So. 2d 1063 (Fla. 1st DCA 1986), claimant was entitled to the demonstrator and did not work long enough to permit a conclusion that he deliberately decided not to accept it. Accordingly, on remand the judge is instructed to include the value of the demonstrator in claimant’s average weekly wage.
NIMMONS and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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City OF Miami v. Ulysses Fernandez, 603 So. 2d 1346 (Fla. 1st DCA 1992)…n 440.14(l)(e). As to the first issue, although the JCC initially correctly looked to subsection (l)(b) to consider a similar employee who does the same type of work and who was paid the same rate as the claimant, Carvell v. Caviness Motor Company, 552 So. 2d 250, 251 (Fla. 1st DCA 1989), he nonetheless erred in concluding that claimant would have worked a nine-hour day and a total of 45 hours per week, and in doing so, by considering the records of employees Fields and Hatcher. First, it was error for the J…
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Karlton Hilton v. Coral Springs Honda & Adjusted, Inc., 572 So. 2d 7 (Fla. 1st DCA 1990)…lso rejected, after considerable discussion of the matter, the similar employee method, section 440.14(l)(b), because he believed such a method to be inappropriate when employees work on commission. This court held in Carvell v. Caviness Motor Co., 552 So. 2d 250 (Fla. 1st DCA 1989), that the similar employee method of calculating AWW is to be used even when earnings are by commissions, provided the test put forth in Coleman v. Burnup & Sims, 95 So. 2d 895 (Fla.1957), is satisfied. The Coleman test requires…
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Sonny Glassbrenner, Inc. v. Dowling, 913 So. 2d 82 (Fla. 1st DCA 2005)…84] provision because the record showed that the claimant did the same type of work performed by the other four sales representatives, worked in the same dealership as the others, and was compensated at the same rate); Carvell v. Caviness Motor Co., 552 So. 2d 250, 251 (Fla. 1st DCA 1989) (noting that a similar employee is one who does the same type of work and gets paid at the same rate as the claimant). While claimant may have earned $10.50 per hour at some time in the future, he was earning only $10 per ho…
Authorities Cited
- Hyatt Hotel & Scott Wetzel Servs. v. Peterson, 493 So. 2d 1063 (Fla. 1st DCA 1986)
- Coleman v. Burnup & Sims, Inc., 95 So. 2d 895 (Fla. 1957)
- AMF Powerboat Div. & Ins. Co. of N. Am. v. Gilchrist, 409 So. 2d 159 (Fla. 1st DCA 1982)