Coleman v. Burnup & Sims, Inc.

• Decision Date: 12 June 1957
• Citation: 95 So.2d 895
• Parties: Chester COLEMAN, Petitioner, v. BURNUP and SIMS, Inc., Standard Accident Insurance Company, and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 895

95 So.2d 895

Chester COLEMAN, Petitioner, v. BURNUP and SIMS, Inc., Standard Accident Insurance Company, and Florida Industrial Commission, Respondents.

Supreme Court of Florida, Division B.

June 12, 1957.

Heaton & Dye, Tallahassee, for petitioner.

Earnest, Smith, Jones, Paine & Foster and James C. Paine, West Palm Beach, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.

TERRELL, Chief Justice.

Coleman, the claimant, was injured while in the employment of respondent, Burnup and Sims, Inc. His injury occurred two and one-half weeks after he was employed, making recovery depend on Section 440.14(2), Florida Statutes, F.S.A. as follows:

'If the injured employee shall not have worked in such employment during substantially the whole of thirteen weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such thirteen weeks shall be used in making the determination under the preceding paragraph.'

The point for determination is whether or not under the facts related there is competent substantial evidence to sustain the finding of the Deputy Commissioner as to the average weekly wage used as a basis for the computation of compensation for the claimant.

Rule 15(a) of the Florida Industrial Commission, upheld in Wilkes & Pittman v. Pittman, Fla.1957, 92 So.2d 822, defines the pertinent portions of the statute [F.S. § 440.14(2), F.S.A.] quoted above and is as follows:

'15(a) The phrase, 'substantially the whole of thirteen weeks,' as used in Section 440.14(1), Florida Statutes, shall be deemed to mean and refer to a constructive period of thirteen weeks as a whole, i. e., a consecutive period of ninety-one days, and 'during substantially the whole of thirteen weeks' shall be deemed to mean lot less than 90 per cent of the total customary full-time hours of employment within such period considered as a whole.' (Emphasis supplied).

Pursuant to the quoted statute the Deputy Commissioner adopted the wage scale of one Homer Mosely as a yardstick, thus finding him [Mosely] to be a 'similar employee' and in so doing awarded the claimant a weekly wage of $41.58.

Claimant contends there is no competent substantial evidence that Mosely was a 'similar employee' because his [Mosely's] address was Route 2, Gainesville, Florida, while claimant was working in West Palm Beach during the two and one-half weeks of his employment. Claimant also insists that if correctly used, Mosely's average weekly wage would equal $48 per week if properly computed under Rule 15(a) supra. This contention is based on the assumption that only those weeks should be included during which Mosely worked 90% or more of the total customary full time hours. The rule provides that 'during 'substantially the whole of thirteen weeks' shall be deemed to mean not less than 90% of the total customary full time hours of employment within such period considered as a whole.' It would accordingly seem obvious that no one week may be isolated for the purpose of determining whether it conforms to the 90% test, so the percentage computation must be applied to the entire 13 week period.

What then could be the purpose of the test for determining the claimant's average weekly wage under the provisions of the quoted statute considered in connection with the quoted rule? It is apparent that the only purpose of so doing is to determine as nearly as possible the amount of average wages the claimant would have earned if he had not been injured but had continued in his employment. The quoted statute and rule were promulgated for this purpose. The record discloses testimony on such matters as time lost account of voluntary absence, sickness in family et cetera by employees doing the same work as claimant. The cause of lost time is meaningless when absence of a 'similar employee' is applied to a claimant. The claimant may have been a faithful worker eager to earn as much as possible, he and his family may be healthy, while the 'similar employee' may like to fish instead of work, and there may be sickness in the family necessitating his absence. To compensate for such deficiencies among employees the Commission required that the 'similar employee's must have worked not less than 90% of the total customary full time hours within the thirteen weeks period.

It follows that the proper test to guide one would be to take a 'similar' employee who does the same type of work, and one who is working in the same locality, and if possible one who worked in the same crew. In a statewide operation such as here, the employer with a crew working in Orlando may have a 13 week period of clear weather in which each man may work the full customary work hours, while in West Palm Beach rain might reduce the working hours in the same period to one-half or...