ABLE BODY TEMPORARY SERVICES AND UNITED SELF INSURED SERVICES, APPELLANTS,
v.
KEVIN P. LINDLEY, APPELLEE

Fla. 1st DCA | 2004-02-24
No. 1D03-1634
BOOTH, VAN NORTWICK and LEWIS, JJ., concur.
867 So. 2d 499 Florida District Court of Appeal, First District (2004) Positive Treatment
Cited by 3 cases

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Synopsis

This workers' compensation appeal addresses whether penalties and interest can be imposed against a third-party administrator in receivership, and what method should be used to calculate the claimant's average weekly wage. The court held that penalties and interest cannot be imposed against a contract third-party administrator for the Florida Workers' Compensation Insurance Guaranty Association, and that the claimant's AWW must be calculated based on actual wages rather than a contract-for-hire basis.


Holding

Penalties and interest cannot be imposed against United Self Insured Services under section 631.913(2), Florida Statutes. The claimant's average weekly wage must be calculated based on actual wages under section 440.14(1)(d), Florida Statutes, rather than using a contract-for-hire basis, because there was no evidence of a contract specifying hours worked.


Headnotes

[1] Penalties and interest may not be imposed against a third-party administrator for a workers' compensation insurance guaranty association when the administrator is handlin…

[2] A trial court abuses its discretion when it calculates a claimant's average weekly wage based on a contract for hire when statutory provisions for calculating average wee…

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Key Quotes

“section 631.913(2), Florida Statutes (1999), precludes the imposition of penalties and interest against United Self Insured Services”

Establishes that a contract third-party administrator for the Guaranty Association cannot be liable for penalties and interest

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Facts & Procedural History

A claimant was injured while working for a temporary services company. At the time of the hearing, the carrier was in receivership and United Self Ins…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal of a worker’s compensation order imposing penalties and interest against a carrier in receivership and calculating Claimant’s AWW based on a contract-for-hire basis. The JCC was made aware that the carrier was in receivership at the time of the hearing and that United Self Insured Services was handling Claimant’s claims. United Self Insured Services is a contract third-party adminis trator for the Florida Workers’ Compensation Insurance Guaranty Association, Inc. Therefore, section 631.913(2), Florida Statutes (1999), precludes the imposition of penalties and interest against United Self Insured Services. Accordingly, we reverse the JCC’s award of penalties and interest to Claimant.

The JCC also abused its discretion in using a contract-for-hire basis in calculating Claimant’s AWW. Jackson v. Hochadel Roofing Co., 657 So. 2d 1266, 1267 (Fla. 1st DCA 1995). Section 440.14(1), Florida Statutes (1999), outlines the methods for calculating a claimant’s average weekly wage. In this case, Claimant did not work “substantially the whole of 13 weeks immediately preceding the injury” but was not a seasonal worker. The E/C also was unable to provide any evidence of a “similar employee.” Therefore, section 440.14(l)(d) requires that “the full-time weekly wages of the injured employee shall be used” to calculate the AWW.

For purposes of section 440.14(l)(d), case law clearly holds that a “full-time” work week need not be a 40-hour week. See generally Mauranssi v. Centerline Utils. Contract Co., 685 So. 2d 66, 68 (Fla. 1st DCA 1996). Claimant’s work week should be determined prospectively by using either the contract of employment or the actual earnings on the job where Claimant was working at the time of the injury. Id.; Orange-Co of Fla. v. Waldrop, 454 So. 2d 724 (Fla. 1st DCA 1984).

In the present case, competent, substantial evidence does not support the JCC’s conclusion that Claimant’s AWW should be based on a contract for hire of $6.00 per hour for a 40-hour week. The record contains no evidence of a contract for any length of time or a contract requiring 40 hours per week. The employer’s representative and Claimant both testified that the number of hours worked during a week depended on the job assignment. Claimant did not have any expectation of work beyond the job assigned; employment at that rate lasted for either a day or as long as the job assignment required. Claimant had no guarantee of a minimum work week. Therefore, the JCC should have used Claimant’s actual wages as set out in the wage statement presented by the E/C. Therefore, we reverse and remand for a determination of Claimant’s AWW consistent with this opinion.

REVERSED and REMANDED for further proceedings.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


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Citator

Cited By

  • Taylor v. Labor Finders and Ace USA, 928 So. 2d 435 (Fla. 1st DCA 2006)
    …ee that the claimant had worked 32 hours during his four days of employment and that section 440.14(l)(d), Florida Statutes (2003), governs the calculation of the AWW in this case. Similar to the situation in Able Body Temporary Services v. Lindley, 867 So. 2d 499 (Fla. 1st DCA 2004), we find the JCC abused her discretion in adopting the E/C’s determination of the AWW. See also, e.g., Jackson v. Hochadel Roofing Co., 657 So. 2d 1266, 1267 (Fla. 1st DCA 1995) (“When there is no contractual provision governing…
  • Detroit Tigers, Inc. v. Sodders (Fla. 1st DCA 2024)

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