Edwards v. Caulfield

• Decision Date: 27 April 1990
• Docket Number: No. 88-2631,88-2631
• Citation: 560 So.2d 364
• Parties: 15 Fla. L. Weekly D1161 Michael EDWARDS and CNA Insurance Company, Appellants, v. Linda CAULFIELD and Division of Workers' Compensation, Appellees.
• Court: Florida District Court of Appeals

Page 364

560 So.2d 364

15 Fla. L. Weekly D1161

Michael EDWARDS and CNA Insurance Company, Appellants, v. Linda CAULFIELD and Division of Workers' Compensation, Appellees.

No. 88-2631.

District Court of Appeal of Florida First District.

April 27, 1990.

John M. Kelley of Adams, Kelley, Kronenberg & Kelley, Fort Lauderdale, for appellants.

Earle Lee Butler, P.A., Fort Lauderdale, for appellees.

NIMMONS, Judge.

The employer and his carrier appeal from a final order awarding claimant temporary partial disability benefits. Specifically, appellants challenge the judge's holdings that (1) claimant gave the requisite statutory notice of injury to the employer; (2) claimant was not an independent contractor for purposes of her average weekly wage determination; and (3) claimant was entitled to temporary partial disability benefits. We affirm the judge's finding that claimant gave adequate notice of injury to her employer; reverse the judge's finding that claimant was not an independent contractor; and affirm the judge's award of wage-loss benefits, but remand for application of the "deemed earnings" provision of Section 440.15(4)(b), Florida Statutes (1987) with respect to such award.

On October 27, 1987, claimant began working as a part-time legal assistant at the Law Office of Michael Edwards. Claimant testified that on November 3, 1987, while working in the law office, she had an accident. According to claimant, she was rolling her chair back and forth while on the phone when the chair tipped over and she fell onto the hardwood floor. Claimant testified that there were two witnesses to this accident. Johnnie Bates, a legal secretary who worked in the same room as claimant, actually saw claimant fall. Mrs. Kitty Cooper, the employer's wife who also worked in the law office, came back to claimant's office after hearing a loud noise and asked what had happened. Claimant informed Mrs. Cooper of what had just occurred. She then told Ms. Bates and Mrs. Cooper that she thought she would be all right.

According to the testimony of Johnnie Bates and Kathy Spaulding, a receptionist in the office, both Bates and Spaulding were in the front of the law office when they heard a loud noise from the back room. Both employees immediately ran to the back room where they discovered the claimant sitting in a reclined position in a chair conversing on the telephone. The claimant was asked if she was okay. She told both employees she was fine and continued working.

Claimant first saw Dr. Ruddy, an orthopedic specialist, on January 28, 1988. He diagnosed claimant as suffering from a sprain and a strain to the lumbar spine. It was Dr. Ruddy's opinion that claimant's condition was causally related to the industrial accident of November 3, 1987. At this time, Dr. Ruddy permitted claimant to work on a part-time basis--about twenty to thirty hours per week, essentially light duties. Dr. Ruddy last saw claimant on April 18, 1988, at which time it was Dr. Ruddy's opinion that claimant was still having symptoms and in need of medical care and treatment, and thus had not yet reached MMI from the November 3, 1987 accident.

Claimant had worked for Michael Edwards from October 27, 1987 to approximately the first week in December, 1987. She worked part-time for Mr. Edwards--24 hours per week. While employed on a part-time basis with Mr. Edwards, claimant was employed as a full-time real estate agent with Hilton Johnson Realty (HJR) and was in the process of setting up her own real estate office. Claimant was paid by HJR within the 13-week period before the accident. Claimant received a check dated September 1, 1987 from HJR in the amount of $8,085. She was employed by HJR until approximately December 1987.

Following her employment with Mr. Edwards, claimant sought other part-time work in the legal field and tried to start up and conduct her own real estate business. Claimant worked part-time for Burdines in sales from November 28, 1987 through January 16, 1988. On December 4, 1987, she worked for Cohen & Cohen law firm, and from December 28, 1987 through January 5, 1988, she worked for attorney Allen Konigsburg. Both of these positions were obtained through claimant's association with Florida Legal Secretaries, Inc. (FLS), a legal secretarial placement service.

Claimant testified that in January and February 1988, she applied for work through FLS and a couple of attorneys, yet was unsuccessful in obtaining employment because no part-time positions were available. In March 1988, claimant submitted temporary partial wage loss forms for the period of January 4, 1988 through March 18, 1988. Claimant testified that when she started submitting her documentation in March and thereafter, she was primarily working for herself as a broker and looked for work through FLS. According to claimant, she worked out of an office in Fort Lauderdale. She did not have to pay rent since the building was owned by her fiance. Her fiance also supplied her with a desk. She did not have a secretary or a phone. However, she had business cards and kept her own records. Her name was on the outside of the door: "Linda Caulfield, Licensed Real Estate Broker." She had a county license and a city license on the wall inside her office. While in her own business, claimant earned approximately $678 in referrals. Claimant also testified that she had pending several real estate deals, and was expecting a considerable amount of money upon the closing of these deals.

On May 3, 1988, claimant filed a claim for benefits ¹, asserting that an accident occurred on November 3, 1987 injuring the claimant when she was employed by Michael Edwards. She sought temporary total disability benefits from the date of the injury to the hearing, and/or temporary partial benefits from the date the claimant was able to return to work ², and payment of medical benefits for services provided by Dr. Ruddy.

The employer/carrier defended the claim on the basis that (1) there was no notice of injury; (2) no good faith job search was attempted by the claimant; (3) claimant voluntarily limited her income; and (4) there was no causal connection between the injury and the accident.

A hearing was held in July 1988. In his order dated September 16, 1988, the judge found that claimant (1) had sufficiently notified her employer of her injury; (2) had conducted a valid job search; (3) was entitled to TPD benefits; (4) and was not an independent contractor for HJR and thus was entitled to an increased average weekly wage (AWW).

I.

Appellants initially assert that the claimant did not give the employer timely notice of injury within the statutory period of thirty days as mandated by Section 440.185(1), Florida Statutes. Regarding notice of injury, the judge below made the following finding:

1. I find that the Claimant had a compensable accident on 11/3/87 and that she advised persons in the office of her injury who had the authority, or the apparent authority, to be a supervisor and to report the claim properly.

At the outset, we note that notice to a supervisor or foreman is adequate notice to the employer. In Winter Park Memorial Hospital v. Brown, 452 So.2d 116 (Fla. 1st DCA 1984), the claimant, a salad maker, failed to make out a formal accident report because she did not believe she had sustained any serious injury. Her employer did not receive official notice of her accident until approximately one year after the accident. The claimant testified that the employer's head salad maker, who witnessed claimant's accident, directed claimant's activity in the kitchen and that claimant regarded this individual as her supervisor. This court held that the head salad maker could be viewed as claimant's "ex officio" supervisor to whom notice of the accident was sufficient. Likewise, in Collier v. Ranch House Restaurants, Inc., 381 So.2d 270 (Fla. 1st DCA 1980), the claimant hurt her back one day while waiting tables. The next day she told the cashier about the incident. This court viewed the cashier as claimant's "ex officio" supervisor and held that notice to the cashier was adequate notice to the employer.

The judge's finding that claimant advised members of the office staff, who had apparent supervisory authority, of her injury is supported by competent substantial evidence. First, under the facts of this case, the judge was entitled to view Johnnie Bates as claimant's "ex officio" supervisor. At the time of the accident, the only persons working in the law office were: (1) Johnnie Bates, a paralegal secretary who had worked in the law office on a full-time basis for the past 2 1/2 years; (2) Kitty Cooper Edwards, the employer's wife, who assisted in bookkeeping and answered the phone; (3) Kathy Spaulding, a part-time receptionist; (4) a law clerk; and (5) claimant, a part-time secretary. Out of the entire staff working in the law office at the time of the accident, Johnnie Bates was the only full-time employee and had worked in the office longer than anyone else. Moreover, claimant indicated in her deposition that she regarded Johnnie Bates as a supervisor.

Furthermore, as to whether the supervisor did in fact receive notice of claimant's injury, claimant testified that Ms. Bates had actually witnessed the accident. Certainly, the judge, as the trier of fact, was entitled to accept claimant's version of events over the version advanced by other witnesses.

Accordingly, we hold that the judge did not err in holding that the claimant gave sufficient and satisfactory notice of injury to the employer.

II.

Appellants next assert that the judge erred in holding that claimant was an employee of HJR and not an independent contractor. Section 440.02(11)(d)1. of the Workers' Compensation Law excludes "independent contractors" from the definition of "employee" and thereby excludes them from required coverage under the act. Accordingly, while wages from concurrent employment are generally included in the...