Bath v. Shee-Con, Inc., SHEE-CO

CourtCourt of Appeal of Florida (US)
Writing for the CourtBOOTH
Citation560 So.2d 1289
Parties15 Fla. L. Weekly D1168 Robert BATH, Appellant, v.and Florida Insurance Guaranty Association, Appellees.
Docket NumberNo. 88-01300,SHEE-CO,INC,88-01300
Decision Date25 April 1990

Page 1289

560 So.2d 1289
15 Fla. L. Weekly D1168
Robert BATH, Appellant,
SHEE-CON, INC. and Florida Insurance Guaranty Association, Appellees.
No. 88-01300.
District Court of Appeal of Florida,
First District.
April 25, 1990.
Rehearing Denied May 30, 1990.

Page 1290

Susan W. Fox of Macfarlane, Ferguson, Allison & Kelly, Tampa, and H. Guy Smith of H. Guy Smith, P.A., Lakeland, for appellant.

Steven P. Pyle of Smalbein, Johnson, Rosier, Bussey, Rooney & Ebbets, P.A., Orlando, for appellees.

BOOTH, Judge.

This cause is before us on appeal of an order rejecting inclusion of lodging and National Guard earnings in claimant's average weekly wage (AWW). For the following reasons, we affirm in part and reverse in part.

Claimant is a 26-year-old man who was hired by the employer in July 1983. The employer was a contractor engaged in land clearing, and claimant worked as a bush-hogger for several weeks before a fellow employee accidentally shot him in the neck with a rifle. He is a quadriplegic for life.

Prior to his injury, claimant stayed during the week in a trailer owned by the employer. This was not offered as part of his salary but was made available as a convenience because claimant's residence was 65 miles from the job site. Claimant's father, who worked for the employer in a supervisory capacity, gave him permission to stay in the trailer. At no time did claimant make the trailer his residence.

We agree with the judge of compensation claims that the trailer was a uniquely work-related expense created by and within the employment. In Layne Atlantic Company v. Scott, 415 So.2d 837 (Fla. 1st DCA 1982), this court stated:

We must not lose sight of the reason for determining average weekly wage, which is to eventually measure the economic loss a worker experiences when he suffers ... "wage loss" as [that term is] statutorily defined. If an employer stops helping an employee meet his personal expenses, the employee has suffered an economic loss.... However, if an employer no longer makes certain expense payments because the employee no longer incurs those expenses, the employee has suffered no economic loss.

In short, we cannot construe the term "wages" to include a make-whole reimbursement for uniquely work-related expenses that are created by and within the employment. [citation omitted]

Here, because the away-from-home motel expense was solely a creature of the job, Scott, who is no longer employed by Layne Atlantic Company and no longer

Page 1291

must bear this extraordinary expense, has suffered no economic loss based on his failure to receive such reimbursement now....

It is readily apparent that a dollar-for-dollar reimbursement for an away-from-home motel room satisfies a need that would not exist but for the idiosyncracies of work, so it cannot be considered as "wages." [emphasis added]

The judge's critical fact finding, which is supported by competent, substantial evidence, is that claimant's home, 65 miles away from the job, always remained his residence. He did not make the trailer his new residence, and lodging was not part of his compensation under the contract of employment. Thus, the trailer was not a "personal" expense within the meaning of Layne, supra, but was solely a work expense created by the employment. In a similar case, Wiley Jackson Company v. Webster, 522 So.2d 987 (Fla. 1st DCA 1988), this court reversed an AWW award that included $500 monthly reimbursement for living expenses paid to a claimant who was staying in Stuart performing...

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4 cases
  • Tulppo v. County of Ontonagon
    • United States
    • Court of Appeal of Michigan — District of US
    • October 17, 1994
    ...of employment with the state for purposes of their respective worker's compensation statutes. See, e.g., Bath v. Shee-Con, Inc., 560 So.2d 1289, 1291-1292 (Fla.App.1990) (employee's National Guard earnings were to be included in his average weekly wage because his service in the National Gu......
  • Putnam County School Bd. v. Debose
    • United States
    • Florida District Court of Appeals
    • January 30, 1996
    ...Judge, concur. 1 The JCC also noted that, in Sunshine Ace Hardware v. Gray, 541 So.2d 1236 (Fla. 1st DCA 1989) and Bath v. Shee-Con, Inc., 560 So.2d 1289 (Fla. 1st DCA 1990), this court acknowledged the Iley court's criticism directed at ...
  • Gill v. U.S. Agri-Chemicals, AGRI-CHEMICAL
    • United States
    • Florida District Court of Appeals
    • May 7, 1990
    ...should have been included as concurrent employment earnings when establishing claimant's average weekly wage. See Bath v. Shee-Con, Inc., 560 So.2d 1289 (Fla. 1st DCA 1990). The order appealed is affirmed as to the denial of benefits, and the allowance of a credit against future payments. T......
  • Reaves v. United Parcel Service
    • United States
    • Florida District Court of Appeals
    • August 30, 2001
    ...employees or less. See Debose, 667 So.2d at 449-50. A similar rationale, leading to a different result, can describe our decision in Bath v. Shee-Con, Inc., where we reversed with directions that a claimant's National Guard earnings be included in calculating his AWW because "National Guard......

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