CURRY INDUSTRIES AND FTBA-FUND, APPELLANTS,
v.
RICHARD MARINGER, APPELLEE
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The Florida First District Court of Appeal reversed a judge of compensation claims' decision that improperly included employer pension and Medicare contributions in calculating the claimant's average weekly wage. The court held that under amended statutory definitions, pension benefits and Social Security-type contributions cannot be included in average weekly wage calculations.
The court held that pension benefits and Medicare contributions cannot be included in the calculation of average weekly wage under the amended statute. The court also remanded for clarification regarding whether the employer properly controverted the claim within the 21-day statutory period, as the record was unclear whether the relevant claim date was March 24, 1995 or May 9, 1995.
[1] Employer contributions to pension benefits are not included in the calculation of an employee's average weekly wage for workers' compensation purposes.
[2] Employer contributions to Medicare benefits are not included in the calculation of an employee's average weekly wage for workers' compensation purposes.
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 amended definition of wages found in section 440.02(24), Florida Statutes (1993), sharply curtailed the fringe benefits that could be considered in calculating an employee's AWW. Pension benefits, since the enactment of the amendment, are no longer included.”
Establishes that pension benefits cannot be included in average weekly wage calculations under the amended statute.
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Join FLexlaw to unlock all legal intelligenceClaimant Richard Maringer sought workers' compensation benefits. The judge of compensation claims included the employer's contributions to the claiman…
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PER CURIAM.
The judge of compensation claims (JCC) erred in including in claimant’s average weekly wage (AWW) the employer’s contributions to claimant’s pension and medicare benefits. As we explained in Vegas v. Globe Security, 627 So. 2d 76, 83 (Fla. 1st DCA 1993) (en bane), review denied, 637 So. 2d 234 (Fla.1994), the amended definition of wages found in section 440.02(24), Florida Statutes (1993), sharply curtailed the fringe benefits that could be considered in calculating an employee’s AWW. Pension benefits, since the enactment of the amendment, are no longer included. Cable Vision of Cent. Fla. v. Armes, 629 So. 2d 274 (Fla. 1st DCA 1993). Nor do we believe that the adoption of the amendment has in any way affected our pre-amendment decision in Munroe Regional Medical Center v. Ricker, 489 So. 2d 785 (Fla. 1st DCA 1986), which held the inclusion of social security taxes in a worker’s AWW was incorrect because such benefits have no “real present day value,” in that Congress has retained the right to alter the amount of benefits and the terms of entitlement under the Social Security Act. Accordingly, we reverse that portion of the order which included in claimant’s AWW pension and medicare contributions as fringe benefits.
We reverse and remand as well for clarification of the JCC’s award of penalties, because we cannot determine from the record whether the employer controverted the claim within 21 days following the service on it of the petition for benefits. From our review of the record we find that the petition was dated March 24, 1995, and the employer’s notice of denial was dated May 23, 1995, which, on its face, clearly exceeds the 21-day period. The notice states, however, that it was filed in response to a claim dated May 9, 1995. Moreover, the parties’ pretrial stipulation reflects that a claim was made on May 9, 1995.
REVERSED and REMANDED for further proceedings.
BARFIELD, C.J., and ERVIN and KAHN, JJ., concur.
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Authorities Cited
- Vegas v. Globe Sec. & CIGNA, 627 So. 2d 76 (Fla. 1st DCA 1993)
- Cable Vision OF Cent. Fla. & Aetna Cas. & Sur. Co. v. Armes, 629 So. 2d 274 (Fla. 1st DCA 1993)
- Groth AIR Serv., Inc. v. Fla. Freight Terminal, Inc., 489 So. 2d 785 (Fla. 3d DCA 1986)
- Colina v. State, 629 So. 2d 274 (Fla. 2d DCA 1993)