ROBERT G. SAGAR, APPELLANT/CROSS-APPELLEE,
v.
UNIVERSITY OF FLORIDA AND DIVISION OF RISK MANAGEMENT, APPELLEES/CROSS-APPELLANTS
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Robert Sagar appealed a judge of compensation claims' order that excluded sick leave from the calculation of his average weekly wage in a workers' compensation case. The court reversed, holding that because Sagar's employer used his accrued sick leave to keep him at full salary following his compensable injury, his right to sick leave was vested and should have been included in the AWW calculation.
Sick leave should be included in the average weekly wage calculation when the employee's entitlement is demonstrated by the employer's actual use of the accrued sick leave to keep the employee at full salary, regardless of whether the employee had a right to receive cash payment for unused sick leave upon leaving employment.
[1] Sick leave credit used by an employer to maintain an employee at full salary following a compensable injury is considered part of the employee's average weekly wage, even…
[2] An employee's right to present or future enjoyment of sick leave is fixed by the employment contract and should be included in the average weekly wage calculation when us…
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“Claimant's entitlement or vested right to sick leave was demonstrated by the employer's use of his accrued sick leave to keep him at full salary until such time as his sick leave was exhausted.”
Establishes the test for vested sick leave rights: actual use by employer rather than payment authorization at termination
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Join FLexlaw to unlock all legal intelligenceSagar was a University of Florida employee who suffered a compensable injury after working there for less than five years. Under UF's employee handboo…
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PER CURIAM.
This cause is before us on appeal1 from the judge of compensation claims’ (JCC) order excluding sick leave from the calculation of appellant Sagar’s average weekly wage (AWW).
The University of Florida’s (UF) employee handbook in effect at the time of Sagar’s injury provided that an employee who left work because of retirement, termination in good standing, or death could be paid part of unused sick leave credit, but only after completing ten years of creditable service. Because Sagar had worked for UF for less than five years, the JCC determined that Sagar’s right to sick leave credit had not vested, and excluded same from his calculation of Sagar’s AWW.
Significantly, however, the employee handbook further provided that in the event of a compensable injury, sick leave credit could be used on a proportionate basis with workers’ compensation payments to keep an employee at full pay. Subsequent to Sagar’s compensable injury, and consistent with the employee handbook, UF used Sagar’s sick leave credit to keep him at full salary until his sick leave credit was exhausted. Thus, just as in City of Daytona Beach v. Amsel, 585 So. 2d 1044,1047 (Fla. 1st DCA 1991):
Claimant’s entitlement or vested right to sick leave was demonstrated by the employer’s use of his accrued sick leave to keep him at full salary until such time as his sick leave was exhausted. Although the accident triggered claimant’s use of sick leave, his right of present or future enjoyment of sick leave was fixed by his employment contract, and should have been included in the average weekly wage calculation.
Amsel further provides that consideration should be given to whether payment for sick leave is authorized when the employee leaves the employment, not that this consideration be determinative of whether sick leave should be included in the calculation of AWW. The JCC erred in holding otherwise.2 Accordingly, we REVERSE and REMAND with instructions that the JCC include the value of Sagar’s sick leave in his average weekly wage calculation.
BOOTH, MICKLE and BENTON, JJ„ concur. . We affirm without comment appellees' cross-appeal.
. Significantly, both Amsel and the present case involve industrial accidents that occurred prior to 1987, when the term "wages” was amended to mean monetary compensation together with, inter alia, "any other consideration received from the employer that is considered income under the Internal Revenue Code in effect on January 1, 1987....” Ch. 87-330, § 1, at 2135, Laws of Fla.; § 440.02(21), Fla.Stat. (1987). We decline to address whether we would reach the same result in the present case had this or some other post-1987 definition of "wages” been in effect at the time of Sagar's industrial accident.
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Univ. OF Fla. & Div. of Risk Mgmt. v. Bowens, 677 So. 2d 942 (Fla. 1st DCA 1996)…e weeks in which it was earned and vested. The claimant’s “right of present or future enjoyment of ... leave was fixed by his employment contract, and should have been included in the average weekly wage calculation.” Sagar v. University of Florida, 652 So. 2d 469, 470 (Fla. 1st DCA 1995). It is undisputed that this accrued annual leave time is a consideration of significant value that claimant receives from Employer, in addition to the monies paid claimant, as compensation for the performance of the duties o…1 / 2
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Univ. OF Fla. & Div. of Risk Mgmt. v. Collins, 678 So. 2d 503 (Fla. 1st DCA 1996)…om work due to illness, it provided her with a vested right. Thus, its value should be included in AWW. City of Clearwater and Gallagher Bassett Insurance Services, Inc., v. Kohout, 678 So. 2d 487 (Fla. 1st DCA 1996); Sagar v. University of Florida, 652 So. 2d 469 (Fla. 1st DCA 1995); City of Daytona Beach, 585 So. 2d at 1047. The remaining issue is how to determine the value of accrued sick leave under these circumstances. The amount to be included in AWW is the cost to the employer to provide this benefit.…
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City OF Clearwater & Gallagher Basset Ins. Servs., Inc. v. Kohout, 678 So. 2d 487 (Fla. 1st DCA 1996)…ment contract, Claimant’s accrued but unused sick pay had indeed vested. Again, there is competent, substantial evidence to support the JCC’s findings. We find no error in the JCC relying on Amsel. See Bow-ens, supra; Sagar v. University of Florida, 652 So. 2d 469 (Fla. 1st DCA 1995). AFFIRMED. BOOTH, WOLF and MICKLE, JJ., concur.…
Authorities Cited
- City OF Daytona Beach v. Amsel, 585 So. 2d 1044 (Fla. 1st DCA 1991)