AMF Powerboat Division v. Gilchrist, AC-356
| Decision Date | 28 January 1982 |
| Docket Number | No. AC-356,AC-356 |
| Citation | 409 So.2d 159 |
| Parties | AMF POWERBOAT DIVISION and Insurance Company of North America, Appellants, v. Gayle GILCHRIST, Appellee. |
| Court | Florida District Court of Appeals |
Thomas A. Moore, of Pitts, Eubanks & Ross, P. A., Orlando, for appellants.
Edward H. Hurt, of Hurt & Parrish, P. A., Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
Employer/carrier appeal from an order of the deputy commissioner awarding claimant temporary total disability benefits, medical treatment and expenses. The compensability of the injury is not at issue. Rather the issue is whether the deputy erred as a matter of law in his finding of a "similar employee," pursuant to § 440.14(1)(b), Florida Statutes (1979), in determining claimant's average weekly wage. Upon reviewing the record, we answer that question in the affirmative.
The record indicates that at the time of the industrial injury, claimant had been employed as a laminator with employer, AMF Powerboat Division, for slightly more than one month. However, during that time, claimant had worked only a total of nineteen days. The record also indicates that claimant was receiving $4.43 per hour and was considered a full-time employee with a forty-hour work week.
In making its determination of claimant's average weekly wage on which to base an appropriate compensation rate, the deputy commissioner invoked § 440.14(1) (b) which states:
If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination (of average weekly wage).
After reviewing the submitted wage statements, the deputy chose as a "similar employee" one H. Cullen, also a laminator. However, the record indicates that Ms. Cullen was receiving an hourly wage of $6.05. Indeed, it appears from the wage statements that Ms. Cullen was the second-highest paid laminator for the company at the time of claimant's industrial accident, there being no similar employee with a wage rate as low as that of claimant.
Accordingly, we hold that the deputy commissioner's determination of claimant's average weekly wage based on the wages of a "similar employee" is not based on competent substantial evidence. However, an investigation of the record indicates that there is no ...
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... ... is a strong indication that employees are "similar," see AMF Powerboat Division v. Gilchrist, 409 So.2d 159 (Fla ... 1st DCA 1982), the ... ...
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Carvell v. Caviness Motor Co., 89-376
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Sonny Glassbrenner, Inc. v. Dowling
...earned $3.60 per hour for three weeks and $3.75 per hour for ten weeks and worked a five-six day schedule); AMF Powerboat Div. v. Gilchrist, 409 So.2d 159, 160 (Fla. 1st DCA 1982) (holding that the JCC erred in applying the similar employee provision in calculating the claimant's AWW becaus......