Corkery v. Best Wings of Cape Coral, 97-1660
| Decision Date | 06 March 1998 |
| Docket Number | No. 97-1660,97-1660 |
| Citation | 707 So.2d 884 |
| Parties | 23 Fla. L. Weekly D644 Karen CORKERY, Appellant, v. BEST WINGS OF CAPE CORAL and Claims Center, Appellees. |
| Court | Florida District Court of Appeals |
Clark W. Berry, Fort Myers, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellees.
Below Karen Corkery sought recalculation of her average weekly wage, payment of a hospital bill, and penalty and interest she alleged she was owed on account of late indemnity payments. On the record at hearing, appellees agreed to pay the hospital bill, if submitted on the prescribed form, an agreement appellate counsel reiterated at oral argument. The judge of compensation claims denied all relief. Except as to the denial of penalty, interest, attorney's fees, and costs, we affirm the order under review.
While working as a waitress for Best Wings of Cape Coral, Ms. Corkery fell and injured her knee on May 21, 1996. Her employer's workers' compensation insurance carrier made temporary total disability indemnity payments, the first of which was, however, untimely. The amount of each indemnity payment was based on her average weekly wage, as calculated by the insurance carrier. Average weekly wage is determined on the basis of "wages," as defined by the Workers' Compensation Law in section 440.02(24), Florida Statutes (1995).
By petition for benefits, Ms. Corkery sought an upward adjustment to average weekly wage, on the basis of unreported tips. Such an adjustment is warranted only if she received tips which were "reported for federal income tax purposes." § 440.02(24), Fla. Stat. (1995). She put tax forms in evidence to prove she had reported the $1275 in question for income tax purposes. In fact, the forms prove the contrary. Her 1996 Internal Revenue Service Form 1040EZ returns no unreported tip income. Schedule U to Form 1040 and Form 4137 also put unreported tip income at zero (even though an attached, contradictory statement might be deemed a report for social security and medicare tax purposes).
Because the tips that she contends should have been treated as additional wages were not reported for federal income tax purposes, they do not qualify as "wages." In the circumstances, we need not decide whether Ms. Corkery proved that she met the additional requirement of reporting gratuities "to the employer in writing as taxable income received in the course of employment from others than the employer." § 440.02(24), Fla. Stat. (1995). We affirm...
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...of interest was mandatory. The JCC reached the contrary conclusion, and supported his conclusion by citing Corkery v. Best Wings of Cape Coral, 707 So.2d 884 (Fla. 1st DCA 1998). In Corkery, this court reversed a JCC's denial of penalties and interest on late indemnity payments, writing: “i......
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...of time; we must simply determine whether Claimant earned any wage, as defined in section 440.02(28). In Corkery v. Best Wings of Cape Coral, 707 So.2d 884 (Fla. 1st DCA 1998), where we addressed this issue after the statute was amended in 1990, we held that unreported tips to the IRS canno......