City of Miami v. Fernandez

Citation603 So.2d 1346
Decision Date13 August 1992
Docket NumberNo. 91-1793,91-1793
CourtCourt of Appeal of Florida (US)
PartiesCITY OF MIAMI, Appellants/Cross-Appellees, v. Ulysses FERNANDEZ, Appellee/Cross-Appellant. 603 So.2d 1346, 17 Fla. L. Week. D1922

A. Quinn Jones, III, City Atty., Ramon Irizarri, Kathryn S. Pecko, and Judith L. Gersten, Asst. City Attys., Miami, for appellants/cross-appellees.

Roberto Rigal, Jr. of Levine, Busch, Schnepper & Stein, P.A., Miami, for appellee/cross-appellant.

WIGGINTON, Judge.

The City of Miami brings this appeal from an order of the Judge of Compensation Claims increasing claimant's average weekly wage. Claimant cross-appeals that order to the extent it denied his claim for temporary total disability or temporary partial disability benefits. For the following reasons, we reverse the issues raised on appeal and affirm the issue raised on cross-appeal.

Claimant was hired by the City of Miami as a standby laborer with the Department of Solid Waste. He had been working in that capacity for two days when, on January 22, 1987, he sustained a crushing injury to his leg when it was pinned between the rear of a garbage truck and a loading dock. At the time of injury, claimant had worked a total of 18 hours at the rate of $7.30 per hour, earning $131.40. He subsequently filed a claim seeking, among other things, temporary total and/or temporary partial disability benefits, wage loss, and a determination of his average weekly wage. On the pretrial stipulation, claimant indicated that the AWW should be $296; the City maintained it should be $255.50.

At the hearing, claimant contended that although he was hired as an hourly employee, he was nonetheless required to work a 40-hour week. However, Lelia Barone, an administrative aide who then hired standby laborers for the Department, testified that a standby laborer fills a temporary position made available by permanent employees who are ill, on vacation, or on disability leave. She stated the Department maintains a pool of approximately 100-125 standby laborers who are selected to work on an "as needed basis."

Barone further explained that standby laborers are instructed to report to work at 6:00 a.m. every morning, and those who are needed are sent out on a route. The standby laborers who are not needed are then sent home and are not paid. Standby laborers are paid by the hour; no one is authorized to offer employment to a standby laborer on a weekly basis.

John Kindl, Personnel Safety Officer in the Department, testified in addition that standby laborers were advised they might work one to five days a week, depending on work availability. A report reflecting the hours worked by week for the period of October 23, 1986, through January 22, 1987, for nine other standby laborers, each making $7.30 an hour, was admitted into evidence and revealed average weekly hours for the preceding 13 weeks ranging from a high of 39.38 hours to a low of 5.54 hours. Five of these standby laborers worked an average of between 33.54 hours to 39.38 hours.

In his order, the JCC found that claimant was hired as a standby laborer at the rate of $7.30 per hour. He specifically rejected claimant's "contract-of-hire" assertion, finding that claimant had "no guarantee of a minimum work week...." Nevertheless, he found the "records of similar employees Shad S. Fields and John D. Hatcher (who both worked 50 hours per week) particularly relevant to this claimant's work days." The JCC went on to determine that claimant's average weekly wage was $370 per week with a corresponding compensation rate of $246 per week. He utilized the similar employees provision in section 440.14(1)(b), Florida Statutes (1985), but then enhanced the "hours worked" to 50 hours per week based on section 440.14(1)(e), Florida Statutes (1989), on the basis that "[c]laimant's attorney proffered that claimant was a minor of less than 22 years of age."

In regard to the claim for TTD and/or TPD benefits, the JCC found claimant's testimony to be entirely lacking in credibility, considered claimant's lack of a work search, and noted that claimant had no physical or psychiatric work restrictions or limitations prohibiting him from finding work. Accordingly, the claim for those benefits was denied.

Addressing first the issue raised on cross-appeal, we affirm the JCC's determination as being based on competent and substantial evidence. Dr. Garcia-Granda's "preference" that claimant complete his studies before he conducts a work search does not rise to a bona fide medical excuse amounting to an exception to the general rule that, absent medical testimony of an inability to work, a claimant is required to conduct a search for employment. See generally, K-Mart v. Young, 526 So.2d 965 (Fla. 1st DCA 1988); Hill v. Baptist Hospital, 464 So.2d 1350 (Fla. 1st DCA 1985); Pompano Roofing Co., Inc. v. O'Neal, 410 So.2d 971 (Fla. 1st DCA 1982).

Turning now to the issues raised on appeal, we conclude based on an analysis of the...

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2 cases
  • Mauranssi v. Centerline Utilities Contract Co.
    • United States
    • Court of Appeal of Florida (US)
    • December 20, 1996
    ...Adart South Polybag Mfg., Inc. v. Goldberg, 495 So.2d 826, 828 (Fla. 1st DCA 1986). Nothing in our decision in [City of Miami v.] Fernandez [603 So.2d 1346 (Fla. 1st DCA 1992) ] suggests that if subsection 440.14(1)(d) properly applies, the judge of compensation claims cannot consider the c......
  • Sheffield v. Brannen's Land Clearing, 94-2937
    • United States
    • Court of Appeal of Florida (US)
    • January 16, 1996
    ...under subsection 440.14(1)(d), Florida Statutes (1991). We conclude that the judge misapplied our decision in City of Miami v. Fernandez, 603 So.2d 1346 (Fla. 1st DCA 1992), and The record shows that Mitchell Sheffield and Vernon Brannen agreed on a Friday in late August 1991 that Sheffield......

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