WILLIE CODY, APPELLANT,
v.
UNITED PARCEL SERVICE AND LIBERTY MUTUAL INSURANCE, APPELLEES
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Willie Cody appealed a workers' compensation award determination regarding his average weekly wage as a part-time UPS employee. The court affirmed the finding that Cody was a part-time rather than full-time worker, but reversed and remanded because the judge failed to determine whether Cody worked at least 90 percent of his customary part-time hours during the 13-week period preceding his injury.
The court affirmed that Cody was a part-time employee based on competent, substantial evidence. However, the court reversed the average weekly wage calculation because the JCC failed to determine whether Cody worked at least 90 percent of his customary part-time hours during the 13-week period, which is a prerequisite to applying the statutory formula.
[1] A judge of compensation claims' finding that an employee is part-time will be affirmed if supported by competent, substantial evidence.
[2] The 13-week formula for determining average weekly wage under section 440.14(1)(a), Florida Statutes, is appropriately applied to part-time workers.
Previewing 2 of 5 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 AWW shall be l/13th of a claimant's wages earned during the 13 weeks preceding the injury, so long as the claimant worked "substantially the whole of [the] 13 weeks," which is defined as "not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole."”
Establishes the statutory standard for calculating average weekly wage under § 440.14(1)(a) and the 90-percent threshold requirement.
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Join FLexlaw to unlock all legal intelligenceWillie Cody was employed as a part-time employee by United Parcel Service. He was injured and claimed workers' compensation benefits. The judge of com…
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PER CURIAM.
Claimant, Willie Cody, appeals from an order of the judge of compensation claims (JCC) determining his average weekly wage (AWW), as a part-time employee. He con tends first that he was a full-time, rather than part-time worker for the employer, United Parcel Service, pursuant to section 440.14(1)©, Florida Statutes (1991). In the alternative, he contends that if the JCC correctly determined his status as a part-time employee, the JCC should not have used the 13-week formula of section 440.14(l)(a) to decide AWW, because he did not work substantially all of the 13 weeks preceding his injury. We affirm the first issue, because the JCC’s finding thereon was supported by competent, substantial evidence, but reverse the second issue and remand for further proceedings.
Section 440.14(l)(a) provides that the AWW shall be l/13th of a claimant’s wages earned during the 13 weeks preceding the injury, so long as the claimant worked “substantially the whole of [the] 13 weeks,” which is defined as “not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole.” This provision is appropriately applied in determining a part-time worker’s AWW. Silver Springs, Inc. v. Scardo, 408 So. 2d 844 (Fla. 1st DCA 1982).
Having decided that Cody was a part-time worker, the JCC next reviewed the actual wages Cody earned during the 13 weeks before his injury, using section 440.14(l)(a) as a model. The JCC did not, however, determine whether claimant worked at least 90 percent of his customary part-time hours during the preceding 13 weeks. This was error. See Coleman v. Burnup & Sims, Inc., 95 So. 2d 895 (Fla.1957) (reversing an order wherein the AWW was based on the wages of a similar employee, because the JCC never ascertained the total customary full-time hours of the similar employee; thus it was impossible to determine whether such employee worked no less than 90 percent of the customary hours).
On remand, the JCC must determine Cody’s total customary part-time hours in order to decide whether section 440.14(l)(a) is applicable. If it is not, the JCC is required to calculate Cody’s AWW as a result of his unique employment situation. Florida Cast Stone v. Dehart, 418 So. 2d 1271 (Fla. 1st DCA 1982); Davidson Lumber Co. v. Smith, 390 So. 2d 1221 (Fla. 1st DCA 1980).
AFFIRMED IN PART, REVERSED IN PART and REMANDED for further proceedings consistent with this opinion.
ERVIN, KAHN and BENTON, JJ., concur.
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Mauranssi v. Centerline Utils. Contract Co. & Claims Ctr., 685 So. 2d 66 (Fla. 1st DCA 1996)…o account the raise he received a month before his accident. We agree with this contention, and reverse. Section 440.14, Florida Statutes (1995), prescribes methods for calculating a claimant’s average 'weekly wage. See Cody v. United Parcel Serv., 681 So. 2d 876 (Fla. 1st DCA 1996). (a) If the injured employee has worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury,…
Authorities Cited
- Fla. Cast Stone & Royal Globe Ins. Co. v. Dehart, 418 So. 2d 1271 (Fla. 1st DCA 1982)
- Silver Springs, Inc. v. Candy Scardo, 408 So. 2d 844 (Fla. 1st DCA 1982)
- Coleman v. Burnup & Sims, Inc., 95 So. 2d 895 (Fla. 1957)
- Davidson Lumber Co. & Am. Hardware Mut. Ins. Co. v. Smith, 390 So. 2d 1221 (Fla. 1st DCA 1980)