TAMMY PERRY, APPELLANT,
v.
FIRE BARRIER SYSTEMS AND PCA SOLUTIONS, INC., APPELLEES
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Florida appellate court reversed workers' compensation classification of claimant as part-time worker because the judge failed to make a required finding on whether claimant would have remained part-time during disability period.
A claimant cannot be classified as a part-time worker for average weekly wage purposes unless the judge makes all three required findings, including whether the claimant would have remained part-time during the disability period.
[1] Part-time worker classification under Florida workers' compensation law requires satisfaction of all three statutory criteria: part-time status at injury, adoption of par…
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Join FLexlaw to unlock all legal intelligence“The statute does not apply unless all of the criteria are satisfied.”
Court explaining that all three elements of part-time worker status must be established
Tammy Perry was injured while working and the judge of compensation claims classified her as a part-time worker to determine her average weekly wage.…
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KAHN, Judge.
Claimant Tammy Perry appeals a final workers’ compensation order in which the judge of compensation claims (JCC) classified her as a part-time worker for purposes of determining average weekly wage (AWW). Consideration of part-time worker status depends upon three findings: (1) claimant was a part-time worker at the time of injury; (2) claimant adopted part-time employment as a customary practice; and (3) claimant would have remained a part-time worker during the period of disability. See § 440.14(1)(f), Fla. Stat.; 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 remained a part-time worker during the period of disability.
On this question, the JCC need not depend entirely upon the claimant’s testimony as to her subjective future intent. Instead, the JCC must consider the totality of the circumstances, including claimant’s intent, prior work history, economic circumstances, and duration of any period of disability.
REVERSED and REMANDED.
ERVIN and BENTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- 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)
- Ellis v. City OF Frostproof & Ins. Servicing & Adjusting, 642 So. 2d 113 (Fla. 1st DCA 1994)