Miller v. Ben's Service Station, Inc.

• Decision Date: 12 May 1982
• Docket Number: No. AD-482,AD-482
• Citation: 417 So.2d 266
• Parties: Jerry MILLER, Appellant, v. BEN'S SERVICE STATION, INC. and Gulf Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 266

417 So.2d 266

Jerry MILLER, Appellant, v. BEN'S SERVICE STATION, INC. and Gulf Insurance Company, Appellees.

No. AD-482.

District Court of Appeal of Florida First District.

May 12, 1982.

Rehearing Granted in Part, Denied in Part

July 30, 1982.

Thomas R. Trompeter, of Underwood, Gillis, Karcher, Reinert & Valle, Miami, for appellant.

John F. McMath, Miami, for appellees.

PER CURIAM.

In this workers' compensation case, the claimant appeals an order of the deputy commissioner awarding disability benefits and attorney's fees. We reverse and remand as to Points I and IV, relating respectively to alleged errors in the calculation of claimant's average weekly wage and the amount of attorney's fees awarded. We affirm as to Points II and III, finding them to be without merit to the extent they are not disposed of by our resolution of Point I.

Claimant was injured in a compensable accident on July 22, 1975. In his deposition and at the hearing on the claim for benefits, claimant testified that he earned $175.00 a week as salary plus commissions which averaged $55.00 to $75.00 per week. The employer testified that he paid claimant commissions in cash on a monthly basis, the amount averaging between $60.00 and $75.00 a week, in addition to paying claimant a salary of $175.00 per week at the time of the accident.

The deputy found that "(Claimant's) rate of pay was $175.00 per week plus commissions. The commissions were paid in cash on a monthly basis and no records were kept of the amount. The employee did not report the commissions to the Internal Revenue Service."

From this finding we do not know whether the deputy disregarded the claimant's and the employer's testimony. The order has certain facial inconsistencies and the basis of the award is unclear. While the $105.00 per week for 25% permanent partial disability was the maximum compensation rate that could be awarded at the time of the accident, the order appears to state that commissions should not be included in the average weekly wage under the circumstances.

Commissions fall under the term "wages" and are to be included in a determination of the average weekly wage. See, Waymire v. Florida Industrial Commission, 174 So.2d 404 (Fla.1965); Section 440.02(12), Florida Statutes (1975).

Having found that claimant received commissions over and above his salary, the deputy erred in not finding a dollar amount and by not determining an average weekly wage dollar amount which clearly included the amount of commission income.

In Decker v. City of West Palm Beach, 379 So.2d 1004 (Fla. 1st DCA 1980), we reversed and remanded for more definitive findings of fact on the question of claimant's average weekly wage where we were unable to determine from the order the basis of the deputy's determination of that issue....