James v. ARMSTRONG WORLD INDUSTRIES, INC., No. 1D02-2340.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM.
Citation864 So.2d 1132
PartiesGary C. JAMES, Sr., Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC. and Specialty Risk Services, Inc., Appellees.
Decision Date31 December 2003
Docket NumberNo. 1D02-2340.

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.


864 So.2d 1133
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
864 So.2d 1134
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
864 So.2d 1135
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...

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5 practice notes
  • Marrero v. State, No. 2D07-19.
    • United States
    • Court of Appeal of Florida (US)
    • August 31, 2007
    ...assistance of appellate counsel, this court granted relief solely as to his HFO sentence for attempted trafficking. Marrero, 864 So.2d at 1132. There was no impediment to Marrero filing his rule 3.850 motion alleging ineffective assistance of trial counsel during the two-year period beginni......
  • Rotstein v. Publix Supermarkets, Inc., No. 1D05-0415.
    • United States
    • Court of Appeal of Florida (US)
    • July 24, 2006
    ...the accident. See e.g., Flowers v. Acousti Eng'g Co. of Fla., 888 So.2d 735 (Fla. 1st DCA 2004); James v. Armstrong World Indus., Inc., 864 So.2d 1132 (Fla. 1st DCA 2003); Karnes v. City of Boca Raton, 858 So.2d 1264 (Fla. 1st DCA 2003). Because the JCC's ruling is consistent with the requi......
  • Marrero v. State, No. 2D03-2006.
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 2003
    ...of Florida, Respondent. No. 2D03-2006. District Court of Appeal of Florida, Second District. December 31, 2003. Jose C. Marrero, pro se. 864 So.2d 1132 Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Sr., Assistant Attorney General, Tampa, for SALCINES, Judge.......
  • Flowers v. ACOUSTI ENGINEERING COMPANY OF FLORIDA, No. 1D03-0619.
    • United States
    • Court of Appeal of Florida (US)
    • December 10, 2004
    ...to be permanently, totally disabled — as the proper basis for computing compensation. See James v. Armstrong World Indus., Inc., 864 So.2d 1132 (Fla. 1st DCA 2003); Karnes v. City of Boca Raton, 858 So.2d 1264 (Fla. 1st DCA AFFIRMED. BROWNING, LEWIS and POLSTON, JJ., concur. ...
  • Request a trial to view additional results
5 cases
  • Marrero v. State, No. 2D07-19.
    • United States
    • Court of Appeal of Florida (US)
    • August 31, 2007
    ...assistance of appellate counsel, this court granted relief solely as to his HFO sentence for attempted trafficking. Marrero, 864 So.2d at 1132. There was no impediment to Marrero filing his rule 3.850 motion alleging ineffective assistance of trial counsel during the two-year period beginni......
  • Rotstein v. Publix Supermarkets, Inc., No. 1D05-0415.
    • United States
    • Court of Appeal of Florida (US)
    • July 24, 2006
    ...the accident. See e.g., Flowers v. Acousti Eng'g Co. of Fla., 888 So.2d 735 (Fla. 1st DCA 2004); James v. Armstrong World Indus., Inc., 864 So.2d 1132 (Fla. 1st DCA 2003); Karnes v. City of Boca Raton, 858 So.2d 1264 (Fla. 1st DCA 2003). Because the JCC's ruling is consistent with the requi......
  • Marrero v. State, No. 2D03-2006.
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 2003
    ...of Florida, Respondent. No. 2D03-2006. District Court of Appeal of Florida, Second District. December 31, 2003. Jose C. Marrero, pro se. 864 So.2d 1132 Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Sr., Assistant Attorney General, Tampa, for SALCINES, Judge.......
  • Flowers v. ACOUSTI ENGINEERING COMPANY OF FLORIDA, No. 1D03-0619.
    • United States
    • Court of Appeal of Florida (US)
    • December 10, 2004
    ...to be permanently, totally disabled — as the proper basis for computing compensation. See James v. Armstrong World Indus., Inc., 864 So.2d 1132 (Fla. 1st DCA 2003); Karnes v. City of Boca Raton, 858 So.2d 1264 (Fla. 1st DCA AFFIRMED. BROWNING, LEWIS and POLSTON, JJ., concur. ...
  • Request a trial to view additional results

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