Pony Exp. Courier v. Blair

• Decision Date: 11 February 1994
• Docket Number: No. 92-3144,92-3144
• Citation: 632 So.2d 164
• Parties: 19 Fla. L. Weekly D321 PONY EXPRESS COURIER and CNA Insurance, Appellants, v. Jimmy BLAIR, Appellee.
• Court: Florida District Court of Appeals

Page 164

632 So.2d 164

19 Fla. L. Weekly D321

PONY EXPRESS COURIER and CNA Insurance, Appellants, v.Jimmy BLAIR, Appellee.

No. 92-3144.

District Court of Appeal of Florida First District.

Feb. 11, 1994.

Mark S. Spangler and Steven A. Rissman of Rissman, Weisberg, Barrett & Hurt, P.A., Orlando, for appellants.

Herbert M. Hill, Orlando, and Bill McCabe, Longwood, for appellee.

WEBSTER, Judge.

In this workers' compensation case, the employer and carrier raise two issues: (1) whether the judge of compensation claims erroneously included in the computation of claimant's average weekly wage payments made by the employer to claimant for the rental of claimant's truck; and (2) whether the record contains competent, substantial evidence to support the assignment of a 13.5-percent permanent impairment rating.As to the latter issue, we conclude that the record does contain competent, substantial evidence to support the finding of the judge of compensation claims.Accordingly, we affirm as to that issue without further discussion.However, we conclude that the judge of compensation claims misapplied the law when he determined that truck rental payments made by the employer to claimant should be included in the average weekly wage computation.Therefore, we reverse as to the first issue.

At the time of his accident, claimant was employed as a "courier guard."His duties consisted principally of picking up and delivering packages.He worked an average of 55 hours per week, for which he received an hourly wage of $4.00.As a condition precedent to his employment, claimant was required to have a van suitable for deliveries, and to enter into a "Motor Vehicle Equipment Lease" leasing the van to the employer.

The "Motor Vehicle Equipment Lease" required claimant to lease his van to the employer for "the hours on a given day during which the [van was] actually being operated within the course and scope of [claimant's] business operations."At his expense, claimant was to keep the van in a state of repair "adequate to perform the courier services which are contemplated by the parties"; to ensure that "all federal, state and local laws and regulations" were complied with; and to "pay all taxes and licenses for ownership or use of said [van] and all other sums incident to the operation of said [van]."In return, the employer agreed to pay claimant "a daily rent ... at a floating rate calculated as follows:"

From a base factor of $120.00, to be paid for each full day in which [the employer] uses the vehicle, [the employer] shall subtract the earned wages of [claimant], whose wage rate is $4.00 per hour, for operating the [van] on said day, with the remainder being equipment rent for said day.

The judge of compensation claims concluded that claimant's average weekly wage was $600.00 (the "base factor" of $120.00 specified in the "Motor Vehicle Equipment Lease" multiplied by claimant's normal 5-day workweek).In support of his decision, the judge of compensation claims cited Viking Sprinkler Co. v. Thomas, 413 So.2d 816(Fla. 1st DCA1982), which he believed to be controlling.On appeal, the employer and carrier argue that the judge of compensation claims arrived at an incorrect average weekly wage because Thomas is inapposite.Instead, they assert that the controlling case law is found in Alterman Transport Lines, Inc. v. Goetzman, 430 So.2d 486(Fla. 1st DCA1983), andDickerson, Inc. v. McCleary, 498 So.2d 651(Fla. 1st DCA1986).According to the employer and carrier, the correct average weekly wage is $220.00.They arrive at this figure by multiplying claimant's hourly wage rate ($4.00) by the average number of hours claimant worked weekly (55).They contend that the difference between $600.00 (the daily "base factor" of $120.00 specified in the "Motor Vehicle Equipment Lease" multiplied by claimant's average 5-day workweek) and $220.00 represents the weekly rental value of claimant's van which, according to Goetzman and McCleary, may not be considered in computing claimant's average weekly wage.We agree with this analysis.

For purposes of computing one's average weekly wage, " '[w]ages' means the money rate at which the service rendered is recompensed under the contract of hiring...."Sec. 440.02(24),Fla.Stat.(Supp.1990)(emphasis added).In McCleary, this court held "that when an employee furnishes both services...