STANLEY STEEMER INTERNATIONAL AND MARYLAND CASUALTY COMPANY, APPELLANTS,
v.
CHARLES H. PRESCOTT, APPELLEE
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In this workers' compensation appeal, Stanley Steemer International and its carrier challenged the calculation of wage loss benefits for an injured employee. The court reversed the compensation judge's decision for failing to apply a mandatory statutory formula for allocating irregular piece-work payments.
The court held that the compensation judge erred in declining to apply the mandatory statutory formula under section 440.15(3)(b). Payment by the piece constitutes an irregular payment analogous to a commission that triggers application of the statutory provision, which is not discretionary.
[1] A judge of compensation claims must apply statutory provisions governing the allocation of irregular wage payments, and cannot decline to do so based on a subjective asse…
[2] Payments made "by the piece" constitute irregular payments analogous to commissions for the purpose of statutory allocation of wage loss benefits.
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 method utilized was erroneous under the facts of this case”
Establishes the court's finding that the compensation judge's wage loss calculation methodology violated statutory requirements
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Join FLexlaw to unlock all legal intelligenceAppellee suffered a compensable back injury on March 16, 1990, and returned to work at Stanley Steemer for eight months before being discharged for un…
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PER CURIAM.
Appellants, the employer and carrier, challenge a worker’s compensation order awarding temporary total, temporary partial and wage loss benefits. Specifically, appellants take issue with the method used by the judge of compensation claims in establishing appellee’s wage loss. We agree that the method utilized was erroneous under the facts of this case, and we reverse.
Appellee, the claimant below, suffered a compensable back injury on March 16, 1990. Following the injury, appellee returned to work at Stanley Steemer for eight months before being discharged for matters unrelated to this injury. Thereafter, appellee began working for Joe Milone Investigations as a process server. It is uncontroverted that claimant is paid six dollars for every summons served and five dollars for every subpoena served. The appellee testified that he is paid “by the piece” on a weekly basis, and it was estab-dished that claimant s wages with Joe Mi-lone Investigations varied from week to week.
The JCC declined to apply the subparagraph of section 440.15(3)(b) which provides that commissions and similar irregular payment shall be allocated first to the week in which they are received, in an amount which when added to other earnings for such week does not exceed the employee’s average weekly wage, and the balance in the same manner to subsequent weeks until fully allocated, but not to exceed 52 weeks from the week that the commission or a similar irregular payment was received.
(Emphasis added).
The judge declined to apply the above-cited provision because he thought it would result in an unfair advantage to the appellants and would “punish” appellee “for demonstrating perseverance, motivation, and initiation.”
Without expressing an opinion as to whether application of this subparagraph will have the effect of punishing claimants such as the appellee, such a consideration is not relevant for the statute is not a discretionary one. While appellee objects to the characterization of his salary as a “commission or a similar irregular payment,” we hold that payment “by the piece” does constitute an irregular payment analogous to a commission so as to trigger application of the provision in question. Accordingly, this cause is remanded to the judge for a recalculation of appel-lee’s wage loss.
SMITH, ALLEN and WOLF, JJ., concur.