Cosmos Contracting Co. v. Courtney, 91-03817
| Decision Date | 28 April 1993 |
| Docket Number | No. 91-03817,91-03817 |
| Citation | 617 So.2d 439 |
| Parties | 18 Fla. L. Weekly D1108 COSMOS CONTRACTING CO. and Executive Risk Consultants, Inc., Appellants/Cross-Appellees, v. Leonard COURTNEY, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Paul L. Westcott and Robert A. Donahue of Rissman, Weisberg, Barrett & Hurt, P.A., Vero Beach, for appellants/cross-appellees.
J. Michael Brennan, Fort Pierce, for appellant/cross-appellee.
This cause is before us on appeal and cross appeal from a final order awarding temporary partial disability (TPD), wage-loss, and medical benefits. At issue are the failure of the judge of compensation claims (JCC) to apportion claimant's disability between the industrial accident and the subsequent noncompensable automobile accident, and the award of temporary partial disability and wage loss for the period September 23, 1988 through March 7, 1989.
First, we must reverse the award of wage-loss and TPD benefits, because claimant, who was self-employed, failed to report to the Internal Revenue Service earnings from the family business in the form of wages. Claimant's joint 1988 income tax return lists total wages of $9,685, wages due entirely to the work efforts of claimant's wife and exclusive of any income earned from the company business. 1
This court was faced with an identical situation in General Repair Service, Inc. v. McKenzie, 577 So.2d 619, 620 (Fla. 1st DCA1991), review denied, 589 So.2d 291 (Fla.1991), wherein we held:
As to the facts of the instant case, we conclude: Since (1) appellee was both the employee and the employer, (2) as both employee and employer, he failed to report to the Internal Revenue Service any wages earned, (3) he kept such inadequate records that it is impossible to determine without his own testimony whether he was paid any wages, and (4) the only pertinent documentary evidence in the record contradicts his testimony, his testimony is incompetent on the issue of average weekly wage and wage loss. Consequently, appellee made no competent showing of any average weekly wage or wage loss in this case and therefore he is not entitled to any temporary partial or wage loss benefits. [emphasis added]
Second, the employer and carrier contend that the JCC erred in effectuating a reverse merger in awarding claimant medical benefits for injuries suffered in the second noncompensable accident. A "reverse merger" occurs when a subsequent unrelated and noncompensable...
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