Gilbreth v. Genesis Eldercare

Decision Date26 July 2002
Docket NumberNo. 1D01-2684.,1D01-2684.
Citation821 So.2d 1226
PartiesFreda M. GILBRETH, Appellant, v. GENESIS ELDERCARE and Liberty Mutual Group, Appellees.
CourtFlorida District Court of Appeals

Susan W. Fox of Macfarlane Ferguson & McMullen, Tampa; H. Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, for Appellant.

Mark W. Ingram of Ingram & Ingram, Sarasota, for Appellees.

ERVIN, J.

In this workers' compensation appeal, the employee, Freda Gilbreth, complains that the judge of compensation claims (JCC) erred in calculating her average weekly wage (AWW) pursuant to the method set out in 440.14(1)(a), Florida Statutes (1997),1 based solely upon the wages claimant earned in her primary employment the 13 weeks immediately preceding her industrial accident, thereby excluding the wages earned from her parttime employment, because she did not receive them during the 13-week period. Appellant contends that her AWW should have been calculated by combining the income from both occupations under section 440.14(1)(c), pertaining to seasonal employment, which permits computation using the 52-week period predating the injury. We agree, and reverse and remand.

During the 13 weeks before her August 24, 1998, injury, claimant worked between 45 and 50 hours per week for Genesis Eldercare as a licensed practical nurse, and her AWW in such capacity was $751.73. Claimant was also employed as an adjunct professor at Polk Community College from 1995 through 1999, generally teaching two or three courses per school year and earning between $4,350 (1995) and $10,350 (1999). During 1998, the college employed her from February 2 through March 6, April 13 through May 15, and September 14 through October 16. None of this employment fell within the 13-week period foregoing the industrial accident. Claimant's wages as an adjunct professor accounted for approximately 20 percent of her annual earnings, and if her part-time employment had been calculated pursuant to the seasonal employment method for the 52-week period prior to the injury, her AWW would have been substantially greater than that provided in section 440.14(1)(a).

In determining that the 13-week calculation was the only method available to claimant under section 440.14, the JCC made the following pertinent findings:

[T]he court has considered the Claimant's claim for inclusion of her earnings at Polk Community College in the calculation of her average weekly wage and compensation rate. Significantly, the Claimant had no earnings from this employment during the thirteen weeks prior to the industrial accident according to the payroll records from the college. While the Claimant has suggested that this was seasonal employment requiring her earnings to be considered over a fifty-two week period, the court finds that her employment as an instructor was not seasonal in nature. This court construes "seasonal" as relating to an agricultural or fishing season and the canning or packing industry related thereto. The [c]ourt determines that her primary employment was with Genesis Eldercare, and that use of the thirteen-week wage statement from that institution results in the best and most accurate determination of the Claimant's average weekly wage. Therefore, the court finds that the Claimant's average weekly wage should be based on the Claimant's earnings through her employment with Genesis Eldercare, that the average weekly wage was calculated correctly, and no adjustment is due.

The JCC's decision that the claimant's part-time employment as an adjunct professor could not be considered seasonal was based on two conclusions which depended primarily on an interpretation of section 440.14. They were (1) that the nature of the work itself precluded it from being seasonal, and (2) that none of the wages from such occupation occurred during the 13-week period preceding the industrial accident. In that the JCC's decision rests essentially on an interpretation of the law, our standard of review is de novo, which makes deferential review considerations that are customarily available in other types of appeals inapplicable.

A plain reading of section 440.14(1)(c), regarding the seasonal employment methodology, provides no support to the judge's interpretation. Subsection (1)(c) states:

If an employee is a seasonal worker and the foregoing method cannot be fairly applied in determining the average weekly wage, then the employee may use, instead of the 13 weeks immediately preceding the injury, the calendar year or the 52 weeks immediately preceding the injury. The employee will have the burden of proving that this method will be more reasonable and fairer than the method set forth in paragraphs (a) and (b)....

The above provisions clearly reveal that the only statutory conditions to the calculation of claimant's AWW under section 440.14(1)(c) are that she make a satisfactory showing that (1) she is a seasonal employee, and (2) the seasonal employment method is more reasonable and fairer than that provided in subsections (a) or (b), the 13-week and similar-employee methods, respectively. We find nothing in subsection (1)(c) remotely suggesting that claimant, once she has presented sufficient proof that she is in fact a seasonal employee, must have worked in any type of employment for substantially the whole of 13 weeks preceding the injury. Indeed, the method provided under subsection (1)(c) for calculating a seasonal employee's AWW, by using either the calendar year or the 52 weeks before the injury, strongly intimates that the 13-week procedure is irrelevant in such determination. We are of the opinion that claimant has adequately satisfied both prongs of her statutory burden. Initially, we consider the judge's interpretation of "seasonal employment" far too restrictive. As was observed in Anstead v. Cox Broadcasting, 500 So.2d 197, 200 (Fla. 1st DCA 1986) (Ervin, J., concurring), "The dictionary's definition of the word `season' ... does not exclude a year-round employee, subjected to a variable income, from such entitlement. Among other things, season is defined as `a period of time [a slack season in business]....' Webster's New World Dictionary (Second College Ed.)." The definition furnished in Merriam-Webster's Collegiate Dictionary 1053 (10th ed.1998), states specifically, as applied to industries, the term "seasonal" means "affected or caused by seasonal need or availability."

This court's case law is generally consistent with the above definitions. For example, in Industrial Fiberglass Manufacturers & Employers Casualty Co. v. Davis, 460 So.2d 998 (Fla. 1st DCA 1984), we observed that the "seasonal worker" methodology appeared potentially appropriate for an over-the-road truck driver who normally experienced a slowdown in employment during the summer months. Similarly, a college instructor would ordinarily expect a slowdown in employment during the summer months, in that colleges then traditionally offer a reduced number of courses. As such, an instructor's employment should properly be regarded as seasonal in that it is "affected by seasonal need or availability." We therefore find no support for the JCC's narrow construction of the term.

Once the claimant established her status as a seasonal employee, the only remaining statutory...

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