Brown v. S. S. Kresge Co., Inc., No. 44545

CourtUnited States State Supreme Court of Florida
Writing for the CourtERVIN; ADKINS; BOYD; BOYD
Citation305 So.2d 191
PartiesVesta Mae BROWN, Petitioner, v. S. S. KRESGE COMPANY, INC., and the Florida Department of Commerce, Industrial Relations Commission, an Administrative Agency, Respondents.
Decision Date23 October 1974
Docket NumberNo. 44545

Page 191

305 So.2d 191
Vesta Mae BROWN, Petitioner,
v.
S. S. KRESGE COMPANY, INC., and the Florida Department of Commerce, Industrial Relations Commission, an Administrative Agency, Respondents.
No. 44545.
Supreme Court of Florida.
Oct. 23, 1974.
Rehearing Denied Jan. 17, 1975.

Page 192

Edward Schroll, Miami, for petitioner.

Charles Desmond Crowley, Fort Lauderdale, for respondents.

ERVIN, Justice.

We consider petition of employer S. S. Kresge Company, Inc., self-insurer of workmen's compensation benefits, and cross-petition of employee Vesta Mae Brown.

Petitioner Vesta Mae Brown was employed by Respondent S. S. Kresge Company, Inc., as a waitress. On December 24, 1970, she sustained a fall in her employment resulting in jury to her ankle, left hip, back, left wrist, right thumb, neck and a hernia. The Judge of Industrial Claims, by his order of December 27, 1972, allowed Petitioner temporary total disability benefits from March 8, 1971, to February 23, 1972, (date of maximum medical improvement) at the rate of $43.46 per week with 6% Interest per annum thereon; thirty-five weeks compensation for ten percent partial disability of the body as a whole at the rate of $43.46 with 6% Interest per annum thereon; reimbursement of all medical expenses of her accident and further medical care as the nature of her injury requires. At the compensation hearing Petitioner testified that after her injury she had not been able to return to work and was not able to do her normal household work.

Petitioner, after her injury, at the suggestion of employer's store manager, a Mr. Hawkins, filled out claim forms with employer's group insurance carrier, Aetna Insurance Company, and received sick leave benefits thereunder at the rate of $34.00 per week from March 16, 1971, to July 8, 1971. She paid for her medical treatment of her injury from her own Blue Cross/Blue Shield insurance. The sick leave benefits from Aetna were suspended when petitioner filed a claim for compensation with Respondent.

There was dispute in the testimony as to extent of Petitioner's average weekly wage as a waitress for Respondent. The Judge

Page 193

of Industrial Claims stated in his order that Petitioner's average weekly wage, including tips and meals, was $72.44. Respondent's testimony thereon only included Internal Revenue Service reports of Petitioner's wages and its attorney's statement concerning the value of her food and tips. It was stipulated by the parties that claimant's salary was $63.21 per week. The Petitioner testified that the reasonable value of the meals was a dollar per day for five days per week and that her tips averaged $12.00 per day for a five day week, or an average weekly wage of $135.21.

Both parties filed application for review of the Judge of Industrial Claims' order with the Industrial Relations Commission.

The Respondent employer complained the Judge erred in ordering future medical treatment and in not giving Respondent credit for the group insurance payments from March 16, 1971, to July 8, 1971, since Petitioner had not contributed to the cost of the group insurance policy. The Petitioner claimant complained there was no substantial evidence to support the finding which limits her average weekly wage to $72.44; there were insufficient findings as to Petitioner's meals and tips; and insufficient findings of fact regarding her wage earning capacity loss.

The Industrial Relations Commission reversed the order in one particular only, as follows:

'. . . Since the Judge below found that the employer had voluntarily provided group insurance benefits to the claimant and the claimant had not contributed regular payments to the premiums of the policy, the employer should be entitled to credit for the insurance benefits paid. An employer should not be required to pay the total amount of workmen's compensation benefits where the employer voluntarily and gratuitously provides a group health policy and the employee does not contribute to the premiums of that policy. Hoagey v. Jewell Tea Co., Inc., Supra (235 So.2d 289). The denial of this credit to the employer by the Judge below constitutes reversible error as a matter of law.

'Additionally, the Commission finds that the above-mentioned issue here on appeal is governed by I.R.C. Rule 9, which provides:

'When an employee is injured and the employer pays his full wages or any part thereof during...

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32 practice notes
  • Jones & Laughlin Steel Corp. v. Kilburne, 2-184A1
    • United States
    • Indiana Court of Appeals of Indiana
    • May 2, 1985
    ...v. Sacramento City Employees' Retirement Page 350 System (1940) 41 Cal.App.2d 482, 107 P.2d 82; Brown v. S.S. Kresge Co. (1974) Fla., 305 So.2d 191; Belle v. General Electric Co. (1982) Fla.App., 409 So.2d 182; Beneteau v. Detroit Free Press (1982) 117 Mich.App. 253, 323 N.W.2d 498; Cole v.......
  • City of Hollywood v. Lombardi, SC96482.
    • United States
    • United States State Supreme Court of Florida
    • October 19, 2000
    ...at 254 (citing Jewel Tea Co. v. Florida Indus. Comm'n, 235 So.2d 289 (Fla.1969) (group insurance benefits)); Brown v. S.S. Kresge Co., 305 So.2d 191 (Fla.1974) (sick leave benefits); Domutz v. Southern Bell Tel. & Tel. Co., 339 So.2d 636 (Fla.1976) (pension benefits). Although in Jewel Tea ......
  • HRS DIST. II v. Pickard, 98-1097.
    • United States
    • Court of Appeal of Florida (US)
    • July 19, 1999
    ...Court for the first time interpreted section 440.20(15) as applying the 100 percent AWW cap discussed in Brown v. S.S. Kresge Co., 305 So.2d 191 (Fla.1974); Domutz v. Southern Bell Tel. & Tel. Co., 339 So.2d 636 (Fla.1976); and Barragan v. City of Miami, 545 So.2d 252 (Fla.1989), to the com......
  • Beneteau v. Detroit Free Press, Docket No. 56742
    • United States
    • Court of Appeal of Michigan (US)
    • September 1, 1982
    ...248 So.2d 99 (La.App., 1971), Beatrice Foods Company v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (1975), Brown v. S. S. Kresge Co., Inc., 305 So.2d 191 (Fla., 1974), Simpson v. Workmen's Compensation Appeal Board, 48 Pa.Comm. 51, 408 A.2d 1186 In the present case, absent her injury, plaintiff......
  • Request a trial to view additional results
32 cases
  • Jones & Laughlin Steel Corp. v. Kilburne, No. 2-184A1
    • United States
    • Indiana Court of Appeals of Indiana
    • May 2, 1985
    ...v. Sacramento City Employees' Retirement Page 350 System (1940) 41 Cal.App.2d 482, 107 P.2d 82; Brown v. S.S. Kresge Co. (1974) Fla., 305 So.2d 191; Belle v. General Electric Co. (1982) Fla.App., 409 So.2d 182; Beneteau v. Detroit Free Press (1982) 117 Mich.App. 253, 323 N.W.2d 498; Cole v.......
  • City of Hollywood v. Lombardi, No. SC96482.
    • United States
    • United States State Supreme Court of Florida
    • October 19, 2000
    ...at 254 (citing Jewel Tea Co. v. Florida Indus. Comm'n, 235 So.2d 289 (Fla.1969) (group insurance benefits)); Brown v. S.S. Kresge Co., 305 So.2d 191 (Fla.1974) (sick leave benefits); Domutz v. Southern Bell Tel. & Tel. Co., 339 So.2d 636 (Fla.1976) (pension benefits). Although in Jewel Tea ......
  • Beneteau v. Detroit Free Press, Docket No. 56742
    • United States
    • Court of Appeal of Michigan (US)
    • September 1, 1982
    ...248 So.2d 99 (La.App., 1971), Beatrice Foods Company v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (1975), Brown v. S. S. Kresge Co., Inc., 305 So.2d 191 (Fla., 1974), Simpson v. Workmen's Compensation Appeal Board, 48 Pa.Comm. 51, 408 A.2d 1186 In the present case, absent her injury, plaintiff......
  • HRS DIST. II v. Pickard, No. 98-1097.
    • United States
    • Florida District Court of Appeals
    • July 19, 1999
    ...Court for the first time interpreted section 440.20(15) as applying the 100 percent AWW cap discussed in Brown v. S.S. Kresge Co., 305 So.2d 191 (Fla.1974); Domutz v. Southern Bell Tel. & Tel. Co., 339 So.2d 636 (Fla.1976); and Barragan v. City of Miami, 545 So.2d 252 (Fla.1989), to the com......
  • Request a trial to view additional results

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