COSMOS CONTRACTING CO. AND EXECUTIVE RISK CONSULTANTS, INC., APPELLANTS/CROSS-APPELLEES,
v.
LEONARD COURTNEY, APPELLEE/CROSS-APPELLANT
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.
This workers' compensation appeal addresses whether a self-employed claimant can recover temporary partial disability (TPD) and wage-loss benefits when he failed to report business income to the IRS, and whether the judge properly awarded medical benefits that were attributable to a subsequent noncompensable automobile accident. The court reversed the wage-loss and TPD awards but remanded the medical benefits for proper apportionment.
The court reversed the award of TPD and wage-loss benefits because the claimant's failure to report wages to the IRS rendered his testimony regarding average weekly wage and wage loss incompetent. The court reversed and remanded the award of medical benefits, requiring the judge to apportion the benefits between the compensable and noncompensable injuries according to the apportionment standard in Department of Public Health v. Wilcox.
[1] A self-employed claimant who fails to report earnings from a family business as wages to the Internal Revenue Service cannot establish an average weekly wage or wage loss…
[2] A judge of compensation claims must apportion benefits when a subsequent noncompensable injury is superimposed upon a compensable condition, separating disabilities resul…
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“Since (1) appellee was both the employee and the employer, (2) as both employee and employer, he failed to report to the Internal Revenue Service any wages earned, (3) he kept such inadequate records that it is impossible to determine without his own testimony whether he was paid any wages, and (4) the only pertinent documentary evidence in the record contradicts his testimony, his testimony is incompetent on the issue of average weekly wage and wage loss.”
Establishes the standard for determining when a self-employed claimant's testimony about wages is incompetent and therefore insufficient to support wage-loss and TPD benefits.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCosmos Contracting employed Courtney, who was self-employed and part-owner of a family business. Courtney suffered a compensable industrial accident, …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Apportionment Of Disability cases and more on FLexlaw
PER CURIAM.
This cause is before us on appeal and cross appeal from a final order awarding temporary partial disability (TPD), wage-loss, and medical benefits. At issue are the failure of the judge of compensation claims (JCC) to apportion claimant’s disability between the industrial accident and the subsequent noncompensable automobile accident, and the award of temporary partial disability and wage loss for the period September 23, 1988 through March 7, 1989.
First, we must reverse the award of wage-loss and TPD benefits, because claimant, who was self-employed, failed to report to the Internal Revenue Service earnings from the family business in the form of wages. Claimant’s joint 1988 income tax return lists total wages of $9,685, wages due entirely to the work efforts of claimant’s wife and exclusive of any income earned from the company business.1 This court was faced with an identical situation in General Repair Service, Inc. v. McKenzie, 577 So. 2d 619, 620 (Fla. 1st DCA1991), review denied, 589 So. 2d 291 (Fla.1991), wherein we held:
As to the facts of the instant case, we conclude: Since (1) appellee was both the employee and the employer, (2) as both employee and employer, he failed to report to the Internal Revenue Service any wages earned, (3) he kept such inadequate records that it is impossible to determine without his own testimony whether he was paid any wages, and (4) the only pertinent documentary evidence in the record contradicts his testimony, his testimony is incompetent on the issue of average weekly wage and wage loss. Consequently, appellee made no competent showing of any average weekly wage or wage loss in this case and therefore he is not entitled to any temporary partial or wage loss benefits. [emphasis added]
Second, the employer and carrier contend that the JCC erred in effectuating a reverse merger in awarding claimant medical benefits for injuries suffered in the second noncompensable accident. A “reverse merger” occurs when a subsequent unrelated and noncompensable injury is superimposed upon a compensable condition, thereby producing disabilities greater than would be suffered as a result of each injury by itself. Despite this “merger” of the two conditions, the disabilities resulting solely from the second accident are not compensable. Department of Public Health v. Wilcox, 458 So. 2d 1207 (Fla. 1st DCA1984).
Where, as here, an original compensable injury is followed by a noncompensa-ble injury, the JCC is required to determine the extent to which each accident contributed to the injuries and to what extent benefits might yet be due on the compensable injury. Jackson v. Indian River County School Board, 596 So. 2d 1130 (Fla. 1st DCA1992). The JCC’s failure to separate the two injuries when awarding medical benefits is error and must be reversed.
Accordingly, we reverse the award of temporary partial and wage-loss benefits. We reverse and remand the award of medical benefits for the JCC to apportion benefits as required by Wilcox, supra. Issues concerning rehabilitation, interest, costs, and penalties are remanded for reconsideration in light of this opinion. In all other respects the order below is affirmed.
BOOTH, KAHN and MICKLE, JJ., concur. . Claimant testified that he was paid $300 weekly and his wife was paid $200 weekly for their work in the family business. This salary was never reported to the Internal Revenue Service.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cathaleen Myers v. Sherwin-Williams Paint, 838 So. 2d 608 (Fla. 1st DCA 2003)…njury on a com-pensable condition, “the disability resulting solely from the [subsequent] accident is not compensable.” State, Dep’t of Pub. Health v. Wilcox, 458 So. 2d 1207, 1209-10 (Fla. 1st DCA 1984). See also Cosmos Contracting Co. v. Courtney, 617 So. 2d 439, 440 (Fla. 1st DCA 1993); Pan Am. World Airways, Inc. v. Franchina, 396 So. 2d 245, 246 (Fla. 1st DCA 1981). As to temporary indemnity benefits, the question that should have been addressed on remand — and must now be addressed on a second remand —…
-
Smith v. Crest Prods. & Auto Owners Ins. Co., 643 So. 2d 672 (Fla. 1st DCA 1994)…ury is followed by a noncom-pensable injury, the JCC is required to determine the extent to which each accident contributed to the injuries and to what extent benefits might yet be due on the compensa-ble injury.” Cosmos Contracting Co. v. Courtney, 617 So. 2d 439, 440 (Fla. 1st DCA 1993). Accord Sunshine Plumbing v. Be- [*674] necke, 558 So. 2d 162 (Fla. 1st DCA 1990); Koulias v. Tarpon Marine Ways, 538 So. 2d 130 (Fla. 1st DCA 1989); Parish v. Baptist Hospital, 512 So. 2d 1031 (Fla. 1st DCA 1987); Newhouse…
-
Winn Dixie Stores, Inc. v. la Torre, 702 So. 2d 1267 (Fla. 1st DCA 1997)…ability benefits thereafter (from September 16, 1993, and continuing) was predicated. They also complain that the judge of compensation claims applied an erroneous legal standard to effect a “reverse merger,” see Cosmos Contracting Co. v. Courtney, 617 So. 2d 439 (Fla. 1st DCA 1993); Pan American World Airways, Inc. v. Franchina, 396 So. 2d 245 (Fla. 1st DCA 1981), and question in this connection the order’s extended dis [*1270] cussion of the “interrelationship” between Mr. La Torre’s blindness and his knee…
Authorities Cited
- State v. Wilcox, 458 So. 2d 1207 (Fla. 1st DCA 1984)
- Gen. Repair Serv., Inc. v. McKENZIE, 577 So. 2d 619 (Fla. 1st DCA 1991)
- Jackson v. Indian River Cnty. Sch. Bd. & Gallagher Bassett Servs., Inc., 596 So. 2d 1130 (Fla. 1st DCA 1992)