Buncy v. Certified Grocers
| Decision Date | 06 January 1992 |
| Docket Number | No. 91-984,91-984 |
| Citation | 592 So.2d 336 |
| Parties | 17 Fla. L. Weekly D185 Brian BUNCY, Appellant, v. CERTIFIED GROCERS and Sedgwick James of Florida, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Susan W. Fox of Macfarlane, Ferguson, Allison & Kelly, Tampa, and J.W. Chalkley, III, Ocala, for appellant.
James H. McCarty, Jr. of McCarty & Helm, P.A., Gainesville, for appellees.
Claimant seeks review of a workers' compensation order denying adjustment of his average weekly wage to include his compensation as a confidential informant. The issue in this appeal is whether the record contains competent, substantial evidence to support the finding of the judge of compensation claims that appellant was an independent contractor. We reverse.
Claimant suffered a compensable hand injury on March 18, 1987, during the course of his full-time employment. During the same time period, claimant also worked part-time as a confidential informant for the Ocala-Marion County Narcotics and Vice Task Force. The deposition testimony of Patrol Captain Suess indicated that claimant had worked for him for several years prior to the events at issue in this case, and that appellant was working for the Narcotics Task Force on the date of his accident and for the three months preceding the accident. Captain Suess further stated that claimant was not considered an employee of the Ocala-Marion County Police Department, or of the Narcotics Task Force, and no withholdings were made from his earnings as a confidential informant, or from other funds given to him.
Attached to Captain Suess's deposition are numerous documents pertaining to claimant's employment as a confidential informant, including a confidential source profile, a confidential source conduct form, a consent to intercept telephone communications, a consent to search, a fingerprint card, and receipts for payments made to claimant by Captain Suess. Pursuant to the confidential source conduct form, claimant agreed that he would make no purchases or seizures of controlled substances without the permission of his "control officer," agreed that any payment received would be considered as income, and agreed that he was not an employee of the Ocala-Marion County Narcotics and Vice Task Force and he would not identify himself as such. The consent to intercept form certifies that claimant was working with the Narcotics and Vice Task Force, and that he gave authority to law enforcement officers to intercept and record his wire and telephone conversations. In addition, claimant gave consent to be searched by Captain Suess at any time, while he was working as a confidential source for the department.
Claimant testified that he had done undercover work for four or five years. During that time, he did whatever he was told to do. His assignments included drug purchases and prostitute contacts. The officers told him whom to contact, and supplied him with names, addresses, and sometimes with pictures. In addition, officers provided claimant with transportation to and from the assigned activities.
The judge of compensation claims found that claimant was an independent contractor when he worked as a confidential informant for the Ocala-Marion County Narcotics and Vice Task Force, and that he was not an employee of the police department. The order states that the judge relied on Captain Suess's testimony for this determination, and expressly found any testimony in conflict with that of the officer was not credible. In view of the determination that claimant's employment as a confidential informant was that of an independent contractor, his claim for adjustment of his average weekly wage and corresponding compensation rate was denied.
Because independent contractors are excluded from required coverage under the Workers' Compensation Act, see Sec. 440.02(13)(d)1, Fla.Stat. (1989), earnings as an independent contractor are not includable in the average weekly wage calculation. Edwards v. Caulfield, 560 So.2d 364, 369 (Fla. 1st DCA 1990); Sunshine Ace Hardware v. Gray, 541 So.2d 1236 (Fla. 1st DCA 1989). Control has always been the critical factor in a determination of independent contractor status, and is incorporated into the statutory...
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F.T. Blount Funeral Home v. City of Tampa, 92-3106
...independent contractor. 4 Of these factors, the most decisive is the right to exercise control over the worker. Buncy v. Certified Grocers, 592 So.2d 336 (Fla. 1st DCA 1992). Other critical factors are the selection of the worker, the method of payment, and whether the worker supplies the t......