Randell, Inc. v. Chism, AB-211

CourtCourt of Appeal of Florida (US)
Citation404 So.2d 175
Docket NumberNo. AB-211,AB-211
PartiesRANDELL, INC. and Reliance Insurance Company, Appellants, v. William CHISM, Appellee.
Decision Date29 September 1981

Page 175

404 So.2d 175
RANDELL, INC. and Reliance Insurance Company, Appellants,
William CHISM, Appellee.
No. AB-211.
District Court of Appeal of Florida, First District.
Sept. 29, 1981.

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.


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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10 cases
  • Iley v. Linzey, 87-312
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1988
    ...Dept. of Corrections v. Tharpe, 413 So.2d 159 (Fla. 1st DCA 1982) (employer with less than three employees); Randell, Inc. v. Chism, 404 So.2d 175 (Fla. 1st DCA 1981) (independent contractor); Rollins Building Services, Inc. v. Thomas, 393 So.2d 665 (Fla. 1st DCA 1981) (domestic servant); W......
  • Judy v. Tri-State Motor Transit Co., TRI-STATE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 16, 1988
    ...not only in obtaining the intended result of his work, but also in the means used to achieve that result. See Randell, Inc. v. Chism, 404 So.2d 175, 177 (Fla.Dist.Ct.App.1981). Moreover, Judy did not have an ICC permit, nor did he own any of his equipment. Cf. A Nu Transfer, Inc. v. Dep't o......
  • Edwards v. Caulfield, 88-2631
    • United States
    • Court of Appeal of Florida (US)
    • April 27, 1990
    ...are not includable in this determination. See Sunshine Ace Hardware v. Gray, 541 So.2d 1236 (Fla. 1st DCA 1989); Randell, Inc. v. Chism, 404 So.2d 175 (Fla. 1st DCA In support of his conclusion that the claimant was not an independent contractor and that she was therefore entitled to an inc......
  • Putnam County School Bd. v. Debose, 95-2649
    • United States
    • Court of Appeal of Florida (US)
    • January 30, 1996
    ...(Fla. 1st DCA 1988), review denied, 542 So.2d 989 (Fla.1989), instead of following the controlling precedent of Randell, Inc. v. Chism, 404 So.2d 175 (Fla. 1st DCA 1981) and State, Dep't of Corrections v. Tharpe, 413 So.2d 159 (Fla. 1st DCA 1982). In Randell, this court held that the claima......
  • Request a trial to view additional results

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