Newell v. Seaboard Contractors, BD-458
| Citation | 10 Fla. L. Weekly 1873,473 So.2d 787 |
| Decision Date | 07 August 1985 |
| Docket Number | No. BD-458,BD-458 |
| Parties | 10 Fla. L. Weekly 1873 Robert E. NEWELL, Appellant, v. SEABOARD CONTRACTORS and Claims Center, Appellees. |
| Court | Court of Appeal of Florida (US) |
George J. Adler, Orlando, for appellant.
B.C. Pyle, Orlando, for appellees.
This cause is before us on appeal from a workers' compensation order finding claimant's average weekly wage to be $259.99. The issues presented are: (1) whether the deputy commissioner erred, as a matter of law, in his determination of claimant's average weekly wage; and (2) whether there is competent, substantial evidence to support the deputy commissioner's determination that claimant's average weekly wage is $259.99, based upon his actual earnings.
Claimant, a 34-year-old high school graduate, suffered a compensable injury while employed by Seaboard Contractors (Seaboard), for whom he had worked as a carpenter for approximately a month before the date of his accident. Claimant was originally hired to work Fridays, Saturdays, and Sundays, ten hours a day, at $7.50 per hour. He also worked for Manpower Temporary Services (Manpower), where his rate of pay varied with the job. Claimant testified that, on the day before his accident, he was called in by Seaboard to work full-time, seven days a week, ten hours per day. Claimant also testified that, at the time of his accident, there were no similar employees who had worked for Seaboard for 13 weeks. Seaboard and its servicing agent had the opportunity to present evidence contrary to claimant's testimony but failed to do so. The deputy, however, found that claimant failed to prove by competent, substantial evidence that his average weekly wage and corresponding compensation rate should be greater than that established by his actual wages from Seaboard and his concurrent wages from Manpower. 1
Since the deputy did not reject claimant's testimony and Seaboard and its servicing agent did not present any conflicting evidence, claimant's average weekly wage should be determined pursuant to Section 440.14(1)(d), Florida Statutes. Where the "13-week" and "similar employee" methods of computing full-time average weekly wage are inapplicable, an employee's wages should be calculated according to his full-time weekly wages pursuant to Section 440.14(1)(d), Florida Statutes. Full-time weekly wages must be determined prospectively by using either the contract of employment or claimant's actual earnings,...
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