James v. ARMSTRONG WORLD INDUSTRIES, INC.

• Decision Date: 31 December 2003
• Docket Number: No. 1D02-2340.,1D02-2340.
• Parties: Gary C. JAMES, Sr., Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC. and Specialty Risk Services, Inc., Appellees.
• Court: Florida District Court of Appeals

864 So.2d 1132

Gary C. JAMES, Sr., Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC. and Specialty Risk Services, Inc., Appellees.

No. 1D02-2340.

District Court of Appeal of Florida, First District.

December 31, 2003.

Rehearing Denied January 30, 2004.

John L. Myrick, Pensacola, for Appellant.

Roderic G. Magie, Pensacola, for Appellees.

PER CURIAM.

The appellant, Gary C. James, Sr., appeals from an order of the Judge of Compensation Claims (JCC) which denied his request for an upward adjustment of the average weekly wage. We affirm.

The appellant was hired by the employer, Armstrong World Industries, Inc., in 1967 and worked until April 18, 2000. The appellant suffered a job-related injury on March 9, 1982. The appellant recalled missing work for approximately one month due to the injury, but he did not undergo surgery. He then returned to work in 1982 and continued working for the employer until April 17, 2000. On April 18, 2000, the appellant underwent lower back surgery related to the 1982 job injury. The appellant has not returned to work since the surgery, and the parties agree the claimant is permanently and totally disabled.

The issue before the JCC was whether the appellant's average weekly wage (AWW) should be calculated using the 13 weeks prior to the 1982 date of accident (which results in an AWW of $305.243, with a compensation rate of $203.49), or the 13 weeks prior to the surgery in 2000 (which results in an AWW of $638.73, with a compensation rate of $426.03). The JCC concluded the appropriate AWW was based on the 13 weeks prior to the appellant's accident in 1982.

Section 440.14, Florida Statutes (1982), provides in relevant part:

(1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s. 440.12(2), as follows:

(a) If the injured employee has worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks....

(b) If the injured employee has not worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph.

(c) 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....

(d) If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used, except as otherwise provided in paragraph (e) or paragraph (f).

(Emphasis added). "Injury" means "personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury." § 440.02(6), Fla. Stat. (1981).

Section 440.14(1)(d) is a "fall-back provision where none of the prior subsections apply." Expicare Nursing Services v. Eudaley, 596 So.2d 126, 129 (Fla. 1st DCA 1992). See also Taylor v. Certified Poultry & Egg Co., 651 So.2d 1262 (Fla. 1st DCA 1995). In Wal-Mart Stores v. Campbell, 714 So.2d 436 (Fla.1998), the claimant had worked at Wal-Mart for the 13 weeks immediately preceding the compensable accident, and had also worked part-time for another employer for six weeks immediately preceding the accident. The JCC calculated the AWW by dividing the total amount earned at Wal-Mart during the 13 weeks preceding the accident by 13. The JCC then modified the AWW by dividing the total amount the claimant earned at the part-time job by six and adding that figure to the original AWW. Wal-Mart argued the AWW should be calculated under section 440.14(1)(a) by dividing by 13 the total amount earned at both jobs during the 13-week period preceding the accident. On appeal, a panel of this Court affirmed the JCC's order, finding that the method of calculation urged by Wal-Mart "would result in an AWW which would not fairly approximate the claimant's pre-injury earning capacity and use of which would therefore not properly reflect his probable future earning loss." Wal-Mart Stores v. Campbell, 694 So.2d 136, 142 (Fla. 1st DCA 1997). The panel concluded the JCC properly exercised his discretion in calculating the AWW. A majority of the supreme court quashed the decision of this Court, determining that "section 440.14(1)(a), Florida Statutes, set forth the proper formula for use of a judge of compensation claims (JCC) in determining AWW in all cases where a claimant has worked in one employment for substantially the whole of 13 weeks prior to an industrial accident" and has worked in a concurrent employment for only a portion of the 13-week period. Wal-Mart Stores, 714 So.2d at 437. The majority stated:

We understand the concern the district court expressed in referring in its opinion to the statement in the Larson treatise that "the calculation of AWW `is not intended to be automatic and rigidly arbitrary,'" id. at 138-39 (quoting 5 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, § 60.11(d), at 10-638 (1997)). We agree that the goal of the calculation of the AWW is to determine a fair and reasonable AWW. Id. at 142. However, we also recognize the benefit of having a fixed method of calculation to apply in recurring situations so that employers, employees, and insurers can readily make the calculation without having to resort to a decision by a JCC. We believe that the legislature intended to provide such a fixed method of calculation for these concurrent employment situations and that the method provided determines a fair and reasonable AWW.

Id. at 438.

In the present case, the appellant had worked for the employer during substantially the whole of the 13-week period preceding the injury in 1982. That use of some other period would result in a higher compensation rate for a claimant does not compel a finding that the method in section 440.14(1)(a) cannot fairly and reasonably be applied.

In asserting that his "date of accident" should be April 18, 2000, because it is the date he became "disabled," the appellant relies on Hillsborough County School Board v. Christopher, 790 So.2d 1267 (Fla. 1st DCA 2001). The relevant portion of the decision in Christopher is as follows:

On cross-appeal, claimant argues that the JCC erred by directing that her PTD benefits be calculated based upon her average weekly wage (AWW) in effect on July 25, 1988, when she suffered her back injury, rather than on April 20, 1995, when she became disabled because her condition had deteriorated to the point that she could no longer work. We agree. See Cote v. Combustion Eng'g, Inc., 502 So.2d 500 (Fla. 1st DCA 1987) (the commencement of disability is the pertinent time for AWW determination); Reynolds v. Neisner Bros., Inc., 436 So.2d 1070 (Fla. 1st DCA 1983) (JCC erroneously calculated AWW at time of 1977 accident, rather than at time of disability in 1981). We therefore reverse and remand for recalculation of claimant's PTD benefits based upon the stipulated 1995 AWW.

The underlying facts in Christopher are not disclosed in the opinion. As the JCC below correctly noted in rejecting the appellant's argument, however, the statutory authority for computation of the AWW at a date after the accident is not stated in the decision and the panel relied on decisions involving repetitive trauma or occupational disease. As the JCC observed:

It is clear that in cases of occupational disease as defined in FS 440.151, the AWW is properly calculated using the "date of disability" as the "date of accident." The authority for this conclusion is found in the language of FS 440.151, as explained in Cote. The convergence of the analysis of occupational disease and repetitive trauma accidents is explained in Festa .... Each of these theories has separate and distinct burdens of proof for the parties, and each has potentially different results as between responsible employer/carriers. [citation omitted] However, the theories are similar to each other in the sense that the "injury" cause may be the result of repetitive trivial trauma or exposure. In that way, the development of repetitive trivial trauma has evolved from the exposure analysis.

Accordingly, the JCC correctly distinguished the present situation from that in Christopher. Although Judge Ervin in his dissenting opinion now discloses for the first time the facts involved in Christopher, Christopher recites the applicable method for computing AWW in occupational disease or repetitive trauma cases and nothing on the face of the Christopher decision clearly indicates that neither occupational disease nor repetitive trauma was involved.

AFFIRMED.

BARFIELD and ALLEN, JJ., concur; ERVIN, J., dissents with written opinion. ERVIN, J., dissenting.

This workers' compensation case presents the question of whether the claimant's average weekly wage (AWW) should be calculated based on his wages at the time of his back injury on March 9, 1982, or at the significantly greater AWW in effect at the time claimant ultimately became disabled on April 18, 2000, due to the back condition. The majority, in affirming the order, approves use of claimant's 1982 wages and calculation of his AWW under section 440.14(1)(a), Florida Statutes (1981), and rejects claimant's argument that his AWW should have been calculated pursuant to section 440.14(1)(d). I cannot agree.

I am cognizant that section 440.14(1)(a) is...