SPHNIX ENTERPRISES, INC., D/B/A CLUB 49, FIDELITY & CASUALTY COMPANY OF NEW YORK AND CONTINENTAL LOSS ADJUSTING SERVICES, APPELLANTS/CROSS-APPELLEES,
v.
RAYDELL SANTA CRUZ, AND THE FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF WORKERS' COMPENSATION, APPELLEE/CROSS-APPELLANT

Fla. 1st DCA | 1990-06-01
No. 89-3014
SMITH and WENTWORTH, JJ., concur.
561 So. 2d 1348 Florida District Court of Appeal, First District (1990) Positive Treatment
Cited by 2 cases

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Holding

The court held that tips and unreported cash wages must be included in calculating a claimant's average weekly wage if the employer had knowledge of them, even if not reported to the IRS or carrier.


Headnotes

[1] An employer's failure to establish a reasonable procedure for reporting gratuities does not preclude the inclusion of those gratuities in the calculation of an employee's…

[2] The failure of an employee to report tips to the IRS does not bar their inclusion in the calculation of average weekly wage when the employer was aware of the tips being…

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Facts & Procedural History

The claimant's wife provided attendant care, and the judge of compensation claims awarded it. The employer only reported $250 in weekly wages to the c…

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

Before us is a workers’ compensation appeal and cross-appeal from the order of the judge of compensation claims awarding, inter alia, attendant care furnished by the claimant’s wife. We affirm the award of attendant care but reverse on the cross-appeal where the judge failed to include in claimant’s average weekly wage tips and unreported wages received by the claimant.

In regard to the tips, it was uncontested that the employer had actual knowledge that the gratuities were received but had failed to establish a reasonable reporting procedure. Hanks v. Tom Brantley’s Tire Broker, 500 So. 2d 614 (Fla. 1st DCA 1987). These facts served to distinguish this case from the circumstances in Hyatt Hotel v. Peterson, 493 So. 2d 1063 (Fla. 1st DCA 1986). Failure to report tips to the IRS is not a bar to their inclusion in arriving at a correct average weekly wage, where the employer was aware of the tips being received. Preferred Aircraft Painting v. Duarte, 532 So. 2d 715 (Fla. 1st DCA 1988); International House of Pancakes v. Ellis, 492 So. 2d 454 (Fla. 1st DCA 1986). Also, in Nash v. Holiday Inn at Calder, 395 So. 2d 306 (Fla. 1st DCA 1981), we held that it was error for the judge not to include tips in the computation of average weekly wage even though the only testimony of the amount of the tips was supplied by claimant’s testimony (although it was held that the judge did not have to accept the highest figure or even the lowest figure testified to by the claimant).

In regards to the unreported wages, it was essentially uncontroverted in the record by any competent evidence that claimant in fact received $450 weekly in cash “under the table,” although the employer only reported the $250 to the carrier as claimant’s wages. The employer’s production of the $250 check would not dispute claimant’s and his wife’s testimony that he received cash wages over and above that amount.

Accordingly, we remand this cause to the judge to recalculate claimant’s average weekly wage by including the tips and unreported wages.

SMITH and WENTWORTH, JJ., concur.


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Cited By

  • Value Rent A CAR v. Liccardo, 603 So. 2d 680 (Fla. 1st DCA 1992)
    …being received, but failed to establish a reporting procedure, the employee’s failure to report tips to the Internal Revenue Service was not a bar to their inclusion in the calculation of average weekly wages. Sphnix Enterprises, Inc. v. Santa Cruz, 561 So. 2d 1348 (Fla. 1st DCA 1990). See also Hanks v. Tom Brantley's Tire Broker, 500 So. 2d 614, 615 (Fla. 1st DCA 1986) (where a reasonable reporting procedure has been established, only those tips reported in compliance with the procedure may be included in the…

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