Randell, Inc. v. Chism, AB-211

• Decision Date: 29 September 1981
• Docket Number: No. AB-211,AB-211
• Citation: 404 So.2d 175
• Parties: RANDELL, INC. and Reliance Insurance Company, Appellants, v. William CHISM, Appellee.
• Court: Florida District Court of Appeals

Page 175

404 So.2d 175

RANDELL, INC. and Reliance Insurance Company, Appellants, v. William CHISM, Appellee.

No. AB-211.

District Court of Appeal of Florida, First District.

Sept. 29, 1981.

Thomas A. Moore of Pitts, Eubanks & Ross, P. A., Orlando, for appellants.

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

THOMPSON, Judge.

On this appeal from a workers' compensation Order, the appellants contend that the Deputy Commissioner ("the Deputy") erred in his computation of the claimant's average weekly wage ("AWW") and in awarding attorney's fees to the claimant's counsel. We agree and reverse.

The claimant, a brick mason, sustained a compensable back injury on January 13, 1980, while he was employed by the appellant Randell, Inc. Compensation was paid by the carrier, and a hearing on the question of the proper rate of compensation was held in July 1980. At that hearing, the claimant requested compensation of $211.00 a week based on an AWW of $340.00. He testified that he had worked exclusively for Randell, Inc. since October 1979, and that he earned $8.50 an hour during a 40 hour work week; i.e., $340.00 a week.

In September 1980, another hearing was held. The president and the secretary-treasurer of Randell, Inc. testified that the claimant was only a part-time employee who earned a total of $591.00 during the 13 weeks preceding his accident, which would indicate an AWW of $45.46 and a compensation rate of $30.32. After this evidence was introduced and independently documented, the claimant remembered that while he worked for Randell, Inc., he also worked for Conway Construction Company as a brick mason where he had an AWW of $400.00 during the 13 week period prior to his accident. This testimony was directly contradicted by the president of the construction company, who also presented a document showing that the claimant earned $1,203.00 during the time in question, in addition to a $200.00 Christmas bonus. Additionally, the president testified that the claimant was not employed by Conway Construction Company, but was hired as a subcontractor.

At the September 1980 hearing, the claimant also remembered that he did additional masonary work for a private individual in December 1979, for which he charged $1,500.00. This individual turned out to be a Ms. Painter, the claimant's girlfriend. She testified that she did not pay him in cash, but instead, allowed him to charge 3 microwave ovens to her credit account. The documents recording these credit transactions show that buyer was not the claimant, but Ms. Painter, who later testified that the claimant gave one microwave oven to her and another one to her daughter.

In February 1981, the Deputy entered his Order, finding that the claimant, working as a brick mason, earned $3,494.00 during the 13 week period before his accident, based on earnings of: $591.00 from Randell, Inc.; $1,403.00 from Conway Construction Company; and $1,500.00 from Ms. Painter. Thus, the deputy determined that the AWW was $268.77.

Section 440.14(1)(a), Fla. Stat. (1979) provides in part that:

If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said 13 weeks. (e.s.)

The Deputy used this statute to combine the claimant's total wages as a brick mason during the 13 week period preceding his accident. However, as this court stated in Rollins Bldg. Services, Inc. v. Thomas, 393 So.2d 665, 666 (Fla. 1st DCA 1981), "wages earned by a claimant in employment excluded from coverage under the (Workers' Compensation Act ('the Act')) are not includable in determining (the) claimant's compensation base." See also Jaquette Motor Co. v. Talley, 134 So.2d 238, 239-40 (Fla.1961). In this case, the claimant's "employment" by Conway Construction Company and Ms. Painter was not covered by the Act, and the wages earned from the employment should not have been used to compute the claimant's AWW.

The claimant's "employment" by the construction company was excluded from the Act's coverage by virtue of § 440.02(2)(d)1, Fla. Stat., which provides that the term "employee" does not include an independent contractor. The claimant herein was not employed by the construction company, but was an independent contractor, as indicated by the following factors: the payment of wages by job, instead of by time; the performance of masonary work at a fixed price for any given...