Reaves v. United Parcel Service
Decision Date | 30 August 2001 |
Docket Number | No. 1D00-1813.,1D00-1813. |
Citation | 792 So.2d 688 |
Parties | Henry REAVES, Appellant, v. UNITED PARCEL SERVICE and Liberty Mutual Insurance Company, Appellees. |
Court | Florida District Court of Appeals |
Howard G. Butler of Ossi, Butler, Najem & Rosario, P.A., Jacksonville, for Appellant.
Kristy J. Gavin, of Gobelman, Love, Gavin, Blazs & Mathis, Jacksonville, for Appellees.
In this workers' compensation case, the claimant, Henry Reaves, appeals the decision of the judge of compensation claims (JCC) excluding from his average weekly wage (AWW) his concurrent earnings from the United States Postal Service. Because the controlling statutes do not exclude these concurrent earnings, we reverse.
Reaves suffered an injury while working at his part-time job as a loader for United Parcel Service. At the time of the accident, he was also employed by the U.S. Postal Service as a full-time driver. He sought a ruling from the JCC that his Postal Service earnings should be included in the AWW used by appellees to determine compensation benefits. The JCC ruled, "[I]t is impermissible to include concurrent earnings in an AWW from a job that does not meet the definition of employment under s. 440.02(15)(b), F.S." The JCC went on to hold that Reaves' Postal Service earnings do not "fall within the purview of employment." She therefore determined that such concurrent earnings could not be included in his AWW.
Section 440.14(1), Florida Statutes (1993), addresses determination of AWW and provides:
(emphasis added). The Florida Supreme Court initially indicated that the language in subsection (1)(a), quoted above, addressed a situation in which an employee earns wages from more than one employer but performs "the same or similar services" for each employer. J.J. Murphy & Son, Inc. v. Gibbs, 137 So.2d 553, 559 (Fla.1962). The supreme court later broadened this to include concurrent dissimilar employment. See Am. Uniform & Rental Serv. v. Trainer, 262 So.2d 193, 194 (Fla.1972)
. In Trainer, the supreme court explained the rationale for including wages earned in concurrent employments in determining AWW:
If the injury occurring on the part-time job has disabled the employee from working at his full-time job, his capacity as a wage earner is impaired beyond the limits of his part-time job and his compensation should be based on the combined wages. The purpose of the Act is to compensate for loss of wage earning capacity due to work-connected injury. It is the capacity of the "whole man" not the capacity of the part-time or full-time worker that is involved.
Id.; accord Wal-Mart Stores v. Campbell, 714 So.2d 436, 437 (Fla.1998)
( ); Vegas v. Globe Sec., 627 So.2d 76, 81 (Fla. 1st DCA 1993) (en banc) ().
Although the Trainer court cautioned in dicta that "wages from employments outside the operation of the Workmen's Compensation Act may not be used in determining average weekly wage under the Act," the court made this statement in the context of explaining that its decision did not change the rule announced in Jaquette Motor Co. v. Talley, 134 So.2d 238, 240 (Fla.1961). Trainer, 262 So.2d at 196 (emphasis added). In Jaquette, the court stated that "it is clear that wages from an employment specifically excluded from the operation of the act may not be used as part of the claimant's wage base." 134 So.2d at 240 (emphasis added). Jaquette involved concurrent employment with the Florida East Coast Railway, and the court determined that wages from this employment could not be included in the claimant's wage base because "employment by the railroad is specifically exempted from the operation of the Workmen's Compensation Act." Id. Thus, the phrase "employments outside the operation" of the Act, as used in Trainer, refers to employment specifically excluded from the Act.
As a general rule, "[c]oncurrent earnings under chapter 440 are includable in the calculation of the AWW." Putnam County Sch. Bd. v. Debose, 667 So.2d 447, 449 (Fla. 1st DCA 1996). Nevertheless, "[w]ages earned by a claimant in employment excluded from coverage under chapter 440 cannot be included in determining the AWW." Id. In Debose, one of the cases cited by the JCC in this case, the court held that a JCC "erred in ordering inclusion of concurrent earnings in the AWW from a job that did not meet the definition of `employment' set forth in section 440.02(15)(b)2., Florida Statutes (1993)." Id. at 450. Section 440.02(15), Florida Statutes (Supp.1994), defines "employment":
A reading of the statute reveals that employment by the U.S. Postal Service is not specifically excluded by section 440.02(15). Although section...
To continue reading
Request your trial