JOE ELLIS, APPELLANT,
v.
CITY OF FROSTPROOF AND INSURANCE SERVICING & ADJUSTING, APPELLEES
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Ellis appeals a workers' compensation order determining his average weekly wage (AWW) for disability benefits. The court affirmed the judge's limitation of benefits to specific periods but reversed the AWW determination, holding that the judge improperly refused to consider the claimant's intent and prior work history when applying the part-time worker statute.
The judge properly limited benefits to the awarded periods but erred by refusing to consider all relevant circumstances—including the claimant's intent and prior work history—when determining whether to apply the part-time worker statute. The statute requires consideration of all relevant evidence to determine if the three statutory criteria are satisfied.
[1] A workers' compensation judge must consider all relevant circumstances, including an employee's intent and prior work history, when determining whether to apply the statu…
[2] The statute concerning the average weekly wage of part-time workers applies only if the employee was a part-time worker at the time of injury, had adopted part-time emplo…
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Join FLexlaw to unlock all legal intelligence“the injured employee was a part-time worker at the time of the injury, that he had adopted part-time employment as his customary practice, and that under normal working conditions he probably would have remained a part-time worker during the period of disability, these factors shall be considered in arriving at his average weekly wages”
Statutory language setting forth the three conjunctive requirements for applying section 440.14(1)(f) to part-time workers
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEllis was injured while working and sought workers' compensation disability benefits. The workers' compensation judge established an AWW but declined …
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ALLEN, Judge.
The claimant appeals a workers’ compensation order which established his average weekly wage (AWW) in connection with an award of disability benefits for certain periods of time. We conclude that the judge did not err in limiting the claimant’s benefits to the periods awarded, but that the judge improperly declined to consider all of the relevant circumstances in determining whether to apply section 440.14(l)(f), Florida Statutes, relating to AWW of part-time workers.
Section 440.14(l)(f), provides that if it is established that:
... the injured employee was a part-time worker at the time of the injury, that he had adopted part-time employment as his customary practice, and that under normal working conditions he probably would have remained a part-time worker during the period of disability, these factors shall be considered in arriving at his average weekly wages....
The statute does not apply unless all of the criteria are satisfied, and it thus does not pertain to a worker who has not adopted part-time employment as a customary practice, and who probably would not have remained a part-time worker throughout the period of disability. E.g., Jackson v. Miami Herald, 571 So. 2d 71 (Fla. 1st DCA 1990); Eaton v. Pinebrook Place Health Care Center, 506 So. 2d 1148 (Fla. 1st DCA 1987). In Jackson and Eaton the workers’ intent and prior work history provided compelling evidence which negated these factors, so as to preclude application of the statute. See also Richardson v. Morrell’s Inc., 570 So. 2d 1076 (Fla: 1st DCA 1990); Albertson’s Inc. v. Natale, 555 So. 2d 946 (Fla. 1st DCA 1990).
In the present case the judge suggested that it did not matter whether the claimant would have preferred full-time employment, and expressly declined to consider the claimant’s prior work history because it involved dissimilar duties with a different employer. But neither the statute nor the cited cases impose any such limitation in this regard. Indeed, an AWW determination will sometimes include concurrent earnings, which clearly may encompass dissimilar employments. See, e.g., American Uniform and Rental Service v. Trainer, 262 So. 2d 193 (Fla.1972).
In determining whether to apply section 440.14(l)(f), the judge should have considered all of the relevant evidence, including the claimant’s intent and prior work history. The appealed order is therefore reversed as to the AWW determination. The order is otherwise affirmed, and the cause is remanded.
BOOTH and BENTON, JJ., concur.
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Vittorio Gusmano v. J & A Assocs. & Emp'r Self Insurers Fund, 692 So. 2d 993 (Fla. 1st DCA 1997)…f compensation claims was free to disbelieve this testimony, the fact that work was available only "as needed" is an insufficient basis to find that the employee adopted part-time work as his customary practice. See also Ellis v. City of Frostproof, 642 So. 2d 113 (Fla. 1st DCA 1994) (holding that on the issue of determining whether claimant has adopted part-time employment as his customary employment, the judge of compensation claims should consider the claimant’s intentions, and prior work history). Mr. Gus…
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Perry v. Fire Barrier Sys. & PCA Solutions, Inc., 704 So. 2d 559 (Fla. 1st DCA 1997)…tat.; Albertson’s Inc. v. Notale, 555 So. 2d 946 (Fla. 1st DCA 1990); Eaton v. Pinebrook Place Health Care Center, 506 So. 2d 1148 (Fla. 1st DCA 1987). The statute does not apply unless all of the criteria are satisfied. Ellis v. City of Frostproof, 642 So. 2d 113 (Fla. 1st DCA 1994). Here, the JCC made specific findings supported by competent substantial evidence as to the first two elements but made no finding as to the third. The evidence is conflicting on the question of whether claimant would have remain…
Authorities Cited
- Am. Unif. & Rental Serv. & Shelby Mut. Ins. Co. v. Verle Trainer & The Indus. Relations Comm'n, 262 So. 2d 193 (Fla. 1972)
- Smith v. State, 555 So. 2d 946 (Fla. 5th DCA 1990)
- Eaton v. Pinebrook Place Health Care Ctr. & Crawford & Co., 506 So. 2d 1148 (Fla. 1st DCA 1987)
- Richardson v. Morrell's, Inc., 570 So. 2d 1076 (Fla. 1st DCA 1990)
- Jackson v. The Miami Herald & Travelers Ins. Co., 571 So. 2d 71 (Fla. 1st DCA 1990)