DeLong v. 3015 West Corp., BJ-423

• Decision Date: 05 August 1986
• Docket Number: No. BJ-423,BJ-423
• Citation: 11 Fla. L. Weekly 1688,491 So.2d 1306
• Parties: 11 Fla. L. Weekly 1688 Harold DELONG, Appellant, v. 3015 WEST CORPORATION and Rockwood Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 1306

491 So.2d 1306

11 Fla. L. Weekly 1688

Harold DELONG, Appellant, v. 3015 WEST CORPORATION and Rockwood Insurance Company, Appellees.

No. BJ-423.

District Court of Appeal of Florida,

First District.

Aug. 5, 1986.

Ellen H. Lorenzen and Stephen L. Rosen of Morris & Rosen, P.A., Tampa, for appellant.

A. Dawn Hayes and James T. Earle of Earle & Thompson, St. Petersburg, for appellees.

SHIVERS, Judge.

The claimant in this workers' compensation case appeals the order entered by the deputy commissioner and raises two issues: (1) that the denial of his claim for attendant care constitutes reversible error; and (2) that the refusal to increase his average weekly wage as requested constitutes reversible error. We affirm in part, reverse, and remand.

The appellant/claimant suffered a compensable back injury on March 2, 1985, while working as the manager of a store which sells "adult" items, such as books, movies, and novelties. As part of his duties as manager, claimant was required to review each item as it arrived at the store so as to establish a sales price and to determine whether the item could legally be sold. According to claimant's testimony, when materials were found which could not be legally sold, the employer either burned them or allowed claimant to keep them free of charge. Claimant was qualified as an expert in determining the value of these items and testified that he kept approximately 12 books per week at a value of $3.50 each and approximately 10 magazines per week ranging in value from $4.00 to $30.00 each. The claimant stated that he collected these items and that he would have purchased them for himself had the employer not provided them free of charge.

As to the claim for attendant care, claimant testified that his wife had an epileptic condition which rendered her incapable of doing any type of housework. Therefore, the claimant had performed all household chores himself prior to his injury. After the injury, claimant's orthopedic surgeon recommended that claimant have complete bed rest and that he perform no household chores. Thus, claimant had hired his son's girlfriend, Ms. Wagner, at a rate of $100 per week plus room and board to cook, clean house, wash clothes, shop, do lawn work, drive claimant and his wife to doctor appointments, and assist claimant with his range of motion exercises. As of the hearing date, Ms. Wagner had lived at claimant's house for two months but claimant had not yet been able to pay her any money. The deputy commissioner's order denied both the claim for increased average weekly wage and for attendant care.

First, we affirm the denial of the request for increased average weekly wage based on the value of the illegal materials claimant was allowed to keep. Although certain non-cash tangible benefits of a real present day value may be included in the calculation of a claimant's average weekly wage ¹, we feel that the category of allowable non-cash benefits should not be expanded to include items that cannot be legally purchased. As was stated in the deputy commissioner's order, the...