Quality Painting, Inc. v. Harrison

• Decision Date: 08 July 1988
• Docket Number: No. 87-736,87-736
• Citation: 529 So.2d 1172,13 Fla. L. Weekly 1587
• Court: Florida District Court of Appeals
• Parties: 13 Fla. L. Weekly 1587 QUALITY PAINTING, INC., and Hill, Richards & Companies, Inc., Appellants, v. Margie HARRISON, Appellee.

Page 1172

529 So.2d 1172

13 Fla. L. Weekly 1587

QUALITY PAINTING, INC., and Hill, Richards & Companies, Inc., Appellants, v. Margie HARRISON, Appellee.

No. 87-736.

District Court of Appeal of Florida,

First District.

July 8, 1988.

Rehearing Denied Sept. 14, 1988.

David A. Danielson, West Palm Beach, for appellants.

Edward H. Hurt, Sr. of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.

WENTWORTH, Judge.

Employer/servicing agent appeal, and claimant cross-appeals, a workers' compensation order by which claimant's average weekly wage was determined. We find that the deputy erred by including potential future earnings in the average weekly wage computation, and we reverse the order appealed in this regard.

Claimant was injured on her first day of work for the employer. This was to be a period of trial employment as a painter, which claimant expected to last for three days. Claimant also continued to work for another employer as a cashier, and had held this full-time employment during the 13 weeks immediately preceding her industrial injury. Every year in the late fall and early winter claimant experienced a seasonal layoff from her cashier employment and during these layoffs she would obtain other employment. It was anticipated that if her three day trial as a painter were satisfactory she would work in this employment during her next layoff.

In determining claimant's average weekly wage the deputy included anticipated earnings for three days trial employment as a painter, as well as claimant's earnings as a cashier during the 13 weeks immediately preceding the industrial injury. Both parties disagree with this methodology. We find that claimant's average weekly wage properly includes her earnings for the one day which she actually worked as a painter, but should not include any anticipated future earnings. Since claimant had been employed for 13 weeks as a cashier her average weekly wage should be established pursuant to section 440.14(1)(a), Florida Statutes, by utilizing the combined wages actually earned in both employments during the 13 weeks immediately preceding the industrial injury. American Uniform & Rental Service v. Trainer, 262 So.2d 193 (Fla.1972); see also, Watson v. Merrill-Stephens Dry Dock & Repair Co., 1 FCR 355 (1956).

While section 440.14(1)(a) refers to the employment in which the claimant is working at the time of the injury, American Uniform & Rental Service v. Trainer, supra, indicates that in cases of dissimilar concurrent employment section 440.14(1)(a) will apply, and the combined wages approach should be utilized, if the claimant has worked for the requisite 13 weeks in one of the employments. Newell v. Seaboard Contractors, 473 So.2d 787 (...