Miller v. Ben's Service Station, Inc., AD-482

CourtCourt of Appeal of Florida (US)
Citation417 So.2d 266
Docket NumberNo. AD-482,AD-482
PartiesJerry MILLER, Appellant, v. BEN'S SERVICE STATION, INC. and Gulf Insurance Company, Appellees.
Decision Date12 May 1982

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

John F. McMath, Miami, for appellees.


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. See, Brown v. S....

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3 cases
  • Mason v. Dept. of Employment Services, 88-376.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 11 Agosto 1989
    ...but other things of value received in consideration for the work such as commissions, see, e.g., Miller v. Ben's Service Station, Inc., 417 So.2d 266 (Fla.Dist.Ct.App. 1982); bonuses, see, e.g., U.S. Fidelity & Guaranty Co. v. Branch, 178 Ga.App. 853, 344 S.E.2d 714, cert. denied, (1986); S......
  • Witzky v. West Coast Duplicating & Claims Center, BM-290
    • United States
    • Court of Appeal of Florida (US)
    • 10 Marzo 1987
    ...fall within the term "wages" and should be included in a determination of average weekly wage. Miller v. Ben's Service Station, Inc., 417 So.2d 266 (Fla. 1st DCA 1982). Here, the parties testified that the commissions were "earned" when a sale was made, although they were not paid to claima......
  • Boulerice v. Magic Roofing Co., AN-212
    • United States
    • Court of Appeal of Florida (US)
    • 21 Junio 1983
    ...the difference between the injured employee's wage earning capacity before and after the injury. Miller v. Ben's Service Station, Inc., 417 So.2d 266 (Fla. 1st DCA 1982). Wage earning capacity before the injury is measured solely by the employee's average weekly wage, which in the instant c......

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