Randell, Inc. v. Chism, AB-211
| Court | Court of Appeal of Florida (US) |
| Citation | 404 So.2d 175 |
| Docket Number | No. AB-211,AB-211 |
| Parties | RANDELL, INC. and Reliance Insurance Company, Appellants, v. William CHISM, Appellee. |
| Decision Date | 29 September 1981 |
Page 175
v.
William CHISM, Appellee.
Page 176
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...
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