AVON PARK CORRECTIONAL INSTITUTE AND ALEXISIS RISK MANAGEMENT SERVICE, APPELLANTS,
v.
VIRGINIA J. CAMPBELL, APPELLEE
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An injured worker appealed a workers' compensation order awarding benefits after the employer failed to appear at the hearing. The appellate court affirmed most of the award but reversed the inclusion of unvested fringe benefits in the calculation of average weekly wage, finding no evidence that such benefits were vested.
The inclusion of fringe benefits in the calculation of average weekly wage was error where there was a total lack of evidence that the benefits were vested. Fringe benefits may only be included in average weekly wage calculations if there is evidence that they were vested.
[1] Fringe benefits should not be included in the calculation of average weekly wage unless such benefits have vested and are a real present-day value to the employee at the…
[2] A claimant's right to a fringe benefit must have vested prior to the accident for it to be included in the calculation of average weekly wage.
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“In order to include claimant's fringe benefits in the calculation of average weekly wage, there must be some evidence that said benefits were vested.”
Establishes the legal requirement that fringe benefits must be shown to be vested before inclusion in wage calculations.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceVirginia Campbell was injured on June 19, 1986, when she twisted her neck and back at Avon Park Correctional Institute. The employer provided immediat…
The full statement of facts, procedural history, and disposition for this case are member content.
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WOLF, Judge.
The employer appeals a workers’ compensation order awarding certain compensation benefits to the claimant after a hearing where the employer/carrier failed to appear. The employer/carrier raises three issues, but we only find merit in the one related to the inclusion of fringe benefits in the calculation of claimant’s average weekly wage. Since there is a total lack of evidence to indicate that these benefits were vested, it was error to include them in the calculation of average weekly wage, and, therefore, we reverse on this issue.
Claimant was injured in a compensable accident on June 19, 1986, when she twisted her neck and back. The employer provided immediate medical treatment but denied all medical care after April 18, 1988.
On October 5, 1988, claimant filed a pro se claim for certain compensation benefits and an application for hearing. Claimant appeared at the hearing, but there was no appearance on behalf of the employer/ carrier. While the employer/carrier initially disputed whether they received notice of the hearing, they have now conceded that notice, in fact, was given.
At the hearing, the judge placed claimant under oath and proceeded to question her as to the claim. The judge granted all benefits requested.
The employer/earrier filed an appeal challenging the judge’s orders on three grounds. These grounds were:
1. Whether the judge erred as a matter of law in requiring the employer to reinstate all sick leave time deducted as a result of absences caused by the accident.
2. Whether the judge erred as a matter of law by including fringe benefits in the average weekly wage.
3. Whether there is competent and substantial evidence to support the finding that the claimant had paid $420 for accident-related medical treatment.
We specifically find that there was sufficient evidence to support the judge as to points one and three and that the employer/earrier waived all pertinent legal objections to these points by their failure to appear. We find merit only in appellant’s second point on appeal.
The Florida Workers’ Compensation Rules of Procedure do not provide for the entry of a default or a judgment thereon. Geiger-Ricketts Dev. Co. v. Alsman, 499 So. 2d 40 (Fla. 1st DCA 1986). If an employer/earrier fails to appear at a hearing, claimant still has the burden of presenting evidence of entitlement to benefits. Bee Gee Shrimp, Inc. v. Carreras, 516 So. 2d 1121 (Fla. 1st DCA 1987). In order to include claimant’s fringe benefits in the calculation of average weekly wage, there must be some evidence that said benefits were vested. Munroe Regional Medical Center v. Ricker, 489 So. 2d 785 (Fla. 1st DCA 1986).
In the instant case, there is absolutely no evidence that the fringe benefits which were utilized in calculating average weekly wage were, in fact, vested.
Accordingly, based upon the dictates of Bee Gee Shrimp, Inc. v. Carreras, 516 So. 2d 1121 (Fla. 1st DCA 1987), we must reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
SHIVERS, C.J., and BOOTH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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City OF Daytona Beach v. Amsel, 585 So. 2d 1044 (Fla. 1st DCA 1991)…sick leave is authorized when the employee leaves the employment. Munroe Regional Med. Center v. Ricker, 489 So. 2d at 788; Polk County School Board v. Cobbett, 547 So. 2d 991 (Fla. 1st DCA 1989). Accord Avon Park Correctional Institute v. Campbell, 565 So. 2d 375 (Fla. 1st DCA 1990). We conclude that the sick leave provisions of the employment contract in this case satisfy the test for inclusion in an average weekly wage calculation, within the contemplation of Sunland Training Center v. Irving and its prog…
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Ramonita Rosado v. J.C. Penney & The Travelers, 647 So. 2d 987 (Fla. 1st DCA 1994)…ge weekly wage unless such benefits have vested and are a real present-day value to the employee at the time of the injury. See, e.g., City of Daytona Beach v. Amsel, 585 So. 2d 1044 (Fla. 1st DCA 1991); Avon Park Correctional Institute v. Campbell, 565 So. 2d 375 (Fla. 1st DCA 1990). We, therefore, affirm the order of the JCC in this case. BOOTH and MICKLE, JJ., concur.…
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Target Woodwork & Atl. Mut. Ins. Company/Rem Risk Enter. Mgmt., Ltd. v. Atl. Mut. Ins. Co. & Remberto Rodriguez, 38 So. 3d 171 (Fla. 1st DCA 2010)…f Fla. v. Collins, 678 So. 2d 503, 506 (Fla. 1st DCA 1996) (“It need only be determined that the [claimant's right to the benefit had vested prior to the accident for it to be included in the calculation of AWW.”); Avon Park Corr. Inst. v. Campbell, 565 So. 2d 375, 376 (Fla. 1st DCA 1990) (reversing inclusion of fringe benefits in AWW because “there is absolutely no evidence that [they] were, in fact, vested”); City of Daytona Beach v. Amsel, 585 So. 2d 1044, 1046-47 (Fla. 1st DCA 1991) (“Fringe benefits shou…
Authorities Cited
- Groth AIR Serv., Inc. v. Fla. Freight Terminal, Inc., 489 So. 2d 785 (Fla. 3d DCA 1986)
- BEE GEE Shrimp, Inc. v. Petra Carreras, 516 So. 2d 1121 (Fla. 1st DCA 1987)
- Geiger-Ricketts DEV. Co. & Aetna Cas. & Sur. Co. v. Alsman, 499 So. 2d 40 (Fla. 1st DCA 1986)