WILL TAYLOR, APPELLANT,
v.
CERTIFIED POULTRY & EGG CO. AND ZURICH AMERICA, APPELLEES
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.
Taylor sought an increase to his average weekly wage (AWW) and corresponding workers' compensation rate following a compensable knee injury in April 1991. The court reversed the judge of compensation claims' denial, holding that the JCC erred in applying the wrong statutory method to calculate Taylor's AWW and that the correct method should incorporate a similarly situated coworker's wages.
The JCC's finding that Taylor worked substantially the whole of the 13 weeks preceding his compensable accident was not supported by competent, substantial evidence. The JCC erred by applying subsection (l)(d) as a fail-back provision when subsection (l)(b)—the similar-employee method—was applicable and should have been used instead. The AWW must be recalculated using Narvez's wages under the similar-employee method, excluding any extra hours Narvez worked to compensate for Taylor's absences.
[1] A Judge of Compensation Claims' finding that an employee worked substantially the whole of the 13 weeks preceding a compensable accident is not supported by competent, su…
[2] The "fail-back" provision for calculating average weekly wage applies only when the 13-week and similar-employee methods are inapplicable.
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“Subsection (l)(d) is a "fail-back" provision to be applied only when the "13-week" and "similar-employee" methods under subsection (l)(a) and (b), respectively, are inapplicable.”
Establishes that subsection (l)(d) cannot be used when other statutory methods are available, supporting the reversal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTaylor sustained a non-compensable left knee injury in January 1991 and underwent surgery in February 1991, causing him to miss work. He then injured …
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PER CURIAM.
This cause is before us on appeal from the judge of compensation claims’ (“JCC”) order denying appellant Taylor’s claim for an increase in his average weekly wage (“AWW”) and corresponding compensation rate. We reverse.
Taylor injured his left knee in a non-com-pensable accident in January of 1991 and had knee surgery in February of 1991. Taylor then injured his right knee in a compensable accident in April of 1991, and later sought adjustment of his AWW calculation arising from the compensable accident. The JCC denied Taylor’s claim for adjustment, finding that Taylor had worked substantially the whole of the 13 weeks preceding his compensable accident under section 440.14(l)(a), Florida Statutes (1989), or, alternatively, that his wages during that time satisfied section 440.14(l)(d), Florida Statutes (1989), and calculated his AWW benefits accordingly.
We must reverse because, first, the JCC’s holding that Taylor had worked substantially the whole of the 13 weeks preceding his compensable accident under subsection (l)(a) is not supported by competent, substantial evidence in the record. To the contrary, Taylor’s wage statement (on which the JCC explicitly relied) reflects that, due to absences arising from his non-compensable accident and surgery in January and February of 1991, Taylor did not work substantially the whole of the 13 weeks preceding his compensable accident in April of 1991.
Second, in light of the inapplicability of subsection (l)(a), the JCC further erred by applying subsection (l)(d) instead of subsection (l)(b) to arrive at Taylor’s AWW. Subsection (l)(d) is a “fail-back” provision to be applied only when the “13-week” and “similar-employee” methods under subsection (l)(a) and (b), respectively, are inapplicable. Expicare Nursing Services v. Eudaley, 596 So. 2d 126 (Fla. 1st DCA 1992).
In the present case, both Taylor and his supervisor testified that Taylor’s co-worker, Narvez, did the same work as Taylor, was paid the same hourly rate as Taylor, and worked similar hours. We therefore RE VERSE and REMAND with directions that the JCC incorporate Narvez’s wages in calculating Taylor’s AWW under the “similar employee” method of section 440.14(l)(b). In so doing, the JCC should hot consider any extra hours that Narvez may have worked to make up for Taylor’s absence in the weeks following his non-compensable injury and surgery in January and February of 1991.
REVERSED AND REMANDED WITH DIRECTIONS.
BOOTH, MINER and JOANOS, JJ., concur.
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Cited By
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James v. Armstrong World Indus., Inc., 864 So. 2d 1132 (Fla. 1st DCA 2003)…440.02(6), Fla. Stat. (1981). Section 440.14(l)(d) is a “fall-back provision where none of the prior subsections apply.” Expicare Nursing Services v. Eudaley, 596 So. 2d 126, 129 (Fla. 1st DCA 1992). See also Taylor v. Certified Poultry & Egg Co., 651 So. 2d 1262 (Fla. 1st DCA 1995). In Wal-Mart Stores v. Campbell, 714 So. 2d 436 (Fla.1998), the claimant had worked at Wal-Mart for the 13 weeks immediately preceding the com-pensable accident, and had also worked part-time for another employer for six weeks im…
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Sonny Glassbrenner, Inc. v. Dowling, 913 So. 2d 82 (Fla. 1st DCA 2005)…t the JCC erred in applying the similar employee provision in calculating the claimant’s AWW because the claimant earned $4.43 per hour with the employer while the “similar” employee earned $6.05 per hour). Cf. Taylor v. Certified Poultry & Egg Co., 651 So. 2d 1262, 1263 (Fla. 1st DCA 1995) (holding 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);…
Authorities Cited
- Expicare Nursing Servs. & Johns E. Co., Inc. v. Eudaley, 596 So. 2d 126 (Fla. 1st DCA 1992)