KARLTON HILTON, APPELLANT,
v.
CORAL SPRINGS HONDA AND ADJUSTED, INC., APPELLEES
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In this workers' compensation appeal, the court reversed the JCC's calculation of average weekly wage (AWW) for an employee who suffered an industrial accident after only ten weeks of employment. The court held that the similar employee method must be used to calculate AWW even for commission-based compensation, provided the Coleman test is satisfied.
The JCC erred in rejecting the similar employee method. The similar employee method of calculating AWW must be used even when earnings are by commission, provided the Coleman test is satisfied. The case is remanded for the JCC to identify the most similar employee among the four sales representatives and recalculate AWW using that employee's earnings including bonuses.
[1] The similar employee method for calculating average weekly wage in workers' compensation claims is applicable even when employees earn commissions, provided the claimant…
[2] When an employee has worked fewer than thirteen weeks prior to an industrial accident, the average weekly wage calculation must consider alternative methods beyond the st…
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 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”
Establishes the primary legal holding that commission-based compensation does not automatically disqualify use of the similar employee method.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Hilton was employed as a sales representative at Coral Springs Honda and suffered an industrial accident after only ten weeks of employment.…
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SMITH, Judge.
In this appeal of a workers’ compensation claim, appellant argues his average weekly wage was incorrectly calculated. We agree and reverse.
Appellant, ten weeks after commencing his employment, suffered an industrial accident while working as a sales representative at Coral Springs Honda. The E/C paid TTD benefits based on an AWW of $338.74. Appellant filed a claim for an increase in AWW to approximately $500.
Following a hearing, the JCC determined that the only fair and reasonable way to determine AWW was to use appellant’s actual earnings. In so finding, the JCC rejected the 13-week method, as provided by section 440.14(l)(a), Florida Statutes (1987), because appellant had only worked ten calendar weeks prior to the accident. The JCC also 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 that the claimant and other employees should do the same type work at the same locale, and if possible, to work in the same crew. The Carvell court added the factor that a similar employee should be paid at the same rate as the claimant.
The record shows that appellant did the same type of work performed by the four other sales representatives employed by Coral Springs Honda, and he worked in the same dealership as the others and was compensated at the same rate. Accordingly, the JCC erred in not utilizing the similar employee method. On remand, the JCC is directed to make a finding as to which of the four sales representatives employed at the' time of the industrial accident is most similar to the appellant. In the recalculation of appellant’s AWW, the JCC is to take into account the bonuses received by that similar employee.
Accordingly, the finding as to AWW is reversed, and the cause is remanded for recalculation consistent with this opinion.
REVERSED and REMANDED.
WENTWORTH and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sonny Glassbrenner, Inc. v. Dowling, 913 So. 2d 82 (Fla. 1st DCA 2005)…ding that the JCC erred in declining to apply the similar employee provision because the claimant’s co-worker did the same work as the claimant, was paid the same hourly rate as the claimant, and worked similar hours); Hilton v. Coral Springs Honda, 572 So. 2d 7, 7-8 (Fla. 1st DCA 1990) (holding that the JCC erred in declining to apply the similar employee [*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 sa…
Authorities Cited
- Coleman v. Burnup & Sims, Inc., 95 So. 2d 895 (Fla. 1957)
- Carvell v. Caviness Motor Co., 552 So. 2d 250 (Fla. 1st DCA 1989)