General Repair Service, Inc. v. McKenzie, 90-1801

• Decision Date: 18 March 1991
• Docket Number: No. 90-1801,90-1801
• Citation: 577 So.2d 619,16 Fla. L. Weekly 734
• Court: Florida District Court of Appeals
• Parties: 16 Fla. L. Weekly 734 GENERAL REPAIR SERVICE, INC. and Auto-Owners Insurance Company, Appellants, v. Neil D. McKENZIE, Appellee.

Page 619

577 So.2d 619

16 Fla. L. Weekly 734

GENERAL REPAIR SERVICE, INC. and Auto-Owners Insurance Company, Appellants, v. Neil D. McKENZIE, Appellee.

No. 90-1801.

District Court of Appeal of Florida,

First District.

March 18, 1991.

Rehearing Denied April 30, 1991.

Terry D. Dixon, of Sanders, McEwan, Mims & Martinez, P.A., Orlando, for appellants.

Brian B. Botlon, of Gierach & Gierach, P.A., Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Longwood, for appellee.

WIGGINTON, Judge.

Appellants, E/C, appeal the Judge of Compensation Claims' award of temporary partial disability and wage loss benefits to appellee/claimant as a result of a January 1, 1986 work-related accident in which appellee injured his back. We reverse.

At the time of the accident, and at the time of the hearing before the JCC, appellee was employed by appellant General Repair Service, Inc. He is also the owner of that company. On the question of average weekly wage, appellee testified that he had earned $275 per week for each of the 13 weeks preceding his accident. He stated that he arrived at that figure by looking through his business checkbook and figuring out which checks he took from the company. He had check stubs from 1985 through 1989 showing checks payable to him but they did not denote for what the payments were made. He claimed that he had suffered a wage loss following his accident because, although he still worked every day, he was unable to work to the same extent as he had in the past and had to hire other help; thus he reduced his own salary to $230 per week.

E/C presented the testimony of appellee's accountant who stated that in 1985 as well as in other years, no salary was reported on appellee's income tax returns but that appellee did take compensation from the business in the form of rent, loan payments and interest payments. The pertinent tax returns, which are also in the record, show that appellant did not report to the Internal Revenue Service earnings from the company in the form of wages or salary during the time in question. Nevertheless, the JCC found that appellee's testimony of a $275 average weekly wage prior to the accident and $230 average weekly wage after the accident was reasonable. Thereupon, he awarded appellee temporary partial disability and wage loss benefits based on an average weekly wage of $335.57, which included a $60.57 insurance benefit.

Under the particular circumstances of this case, we find that the evidence before the JCC was not competent to support his findings of average weekly wage and wage loss. The only evidence of an average weekly wage in the amount of $275 and a wage loss of $45 a week was appellee's testimony. He presented no documentary evidence to support his testimony in that regard. Since he was the employer as well as the employee, his reliance on check stubs, which did not denote any payment of wages to him, was insufficient in...