PINELLAS COUNTY SCHOOL BOARD, APPELLANT,
v.
CHARLES HIGGINS, APPELLEE

Fla. 1st DCA | 1992-04-13
No. 91-983
BOOTH and SMITH, JJ., concur.
597 So. 2d 355 Florida District Court of Appeal, First District (1992) Caution
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Pinellas County School Board challenged a workers' compensation order awarding permanent total disability (PTD) benefits based on the claimant's average weekly wage (AWW) from a June 1987 work injury, rather than from a subsequent August 1988 injury. The court affirmed, holding that when multiple compensable accidents contribute to PTD, benefits should be calculated using the highest AWW the employee was able to earn.


Holding

PTD benefits should be calculated based on the highest average weekly wage the claimant was able to earn from the employer. When multiple compensable accidents contribute to PTD, using the lower subsequent wage would unfairly penalize the employee who attempted to return to work while providing a windfall to the employer.


Headnotes

[1] When two compensable accidents contribute to a claimant's permanent total disability, the average weekly wage from the accident resulting in the highest wage should be us…

[2] A workers' compensation claimant who sustains a subsequent injury that aggravates a prior compensable injury should not be penalized by having benefits calculated based o…

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Key Quotes

“it is clear that the claimant's current physical problems are a continuation of the problems suffered from the first accident and injury ... as aggravated by the second accident and injury”

The judge's finding establishing that the second injury aggravated, rather than independently caused, the claimant's permanent total disability.

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Facts & Procedural History

A 57-year-old supervising custodian for the school board fell off a ladder in June 1987, injuring his lower back. After surgery, therapy, and a work h…

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Opinion of the Court
BARFIELD, Judge.

BARFIELD, Judge.

The employer/carrier challenge a workers’ compensation order awarding permanent total disability (PTD) benefits based on the average weekly wage (AWW) from a June 1987 accident in which the 57-year-old claimant fell off a ladder, injuring his lower back. They assert that the judge should have used the AWW from a subsequent compensable accident in August 1988, when the claimant slipped on a piece of paper and fell, again injuring his back. We affirm.

The claimant had been employed as a supervising custodian for the school board before his first accident. The JCC found that after the surgery, physical therapy, and a work hardening program, he was left with considerable restrictions and pain. He returned to work for the school board, was given another custodian job at lower pay, and was required to perform some manual labor, which the judge found led to his second accident. She found that, based on the medical records, “it is clear that the claimant’s current physical problems are a continuation of the problems suffered from the first accident and injury ... as aggravated by the second accident and injury ...” She concluded that “it would be unfair to penalize the claimant, who attempted to return to work at a lower wage and sustained additional injuries, while allowing the employer/carrier to receive a windfall by paying compensation based on the second and lower average weekly wage.”

Competent, substantial evidence supports the judge’s finding that claimant’s current back problems are an aggravation of the first back injury. Appellants have cited no authority for their position, that the AWW from the second accident should have been used to determine the PTD compensation awarded. We have found no cases directly on point, and no section of chapter 440 deals directly with computation of PTD benefits when two compensable accidents have contributed to the claimant’s PTD condition.

This claimant sustained an actual, apparently temporary, wage loss from the first accident, since he returned to work at a lower rate of pay. He did not qualify for wage loss benefits because his loss was not great enough, i.e., his subsequent salary was not less that 85% of his salary prior to the first accident, section 440.15(3)(b). He had been told that he would be given a position comparable to the one he held before the first accident, when it became available. He continued to experience pain and was restricted in his activities. After his second accident, he lost his ability to earn altogether, and became entitled to PTD benefits amounting to 66%% of his AWW, section 440.15(l)(a).

Under these circumstances, we are of the opinion that the claimant should be compensated for his permanent total disability based upon the highest AWW he was able to earn from the employer. Given the same set of circumstances, except that the second compensable accident occurred while he was working for a second employer, the claimant could have chosen to seek PTD benefits from either employer (presumably, the one from whom he was earning the highest AWW), and that employer could then seek reimbursement from the other employer and, under the proper circumstances, from the Special Disability Trust Fund.

AFFIRMED.

BOOTH and SMITH, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …2d 130, 132 (Fla. 1st DCA 1989) (same). Observing that “no section of chapter 440 deals directly with computation of PTD benefits when two compensable accidents have contributed to the claimant’s PTD condition,” Pinellas County Sch. Bd. v. Higgins, 597 So. 2d 355, 356 (Fla. 1st DCA 1992) (antedating major contributing cause amendments), we held “that the claimant should be compensated for his permanent total disability based upon the highest AWW he was able to earn from the employer.” In support of this hold…
  • City OF Orlando & Alexsis Risk Mgmt. v. Lemay, 652 So. 2d 850 (Fla. 1st DCA 1995)
    …ents, and there may be multiple dates of accident. Under such circumstances the claimant is not precluded from seeking benefits which might pertain in connection with one of the earlier dates of accident. See Pinellas County School Board v. Higgins, 597 So. 2d 355 (Fla. 1st DCA 1992). The judge therefore did not err in resolving the claim upon the alleged date of accident. The appealed order is affirmed. BENTON, J., concurs. BOOTH, J., dissents without written opinion.…
  • BAY Med. Ctr. & Sedgwick Inc. v. Haynes, 667 So. 2d 218 (Fla. 1st DCA 1996)
    …PER CURIAM. Disposition of this case is controlled by the rationale set forth in Pinellas County School Board v. Higgins, 597 So. 2d 355 (Fla 1st DCA 1992). The order of the judge of compensation claims is affirmed. BARFIELD, ALLEN and KAHN, JJ., concur.…

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