Rollins Bldg. Services, Inc. v. Thomas, VV-202
| Decision Date | 11 February 1981 |
| Docket Number | No. VV-202,VV-202 |
| Parties | ROLLINS BUILDING SERVICES, INC. and Crawford and Company, Appellants, v. Julia THOMAS, Appellee. |
| Court | Florida District Court of Appeals |
Bernard I. Probst of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
Edward Schroll, Miami, for appellee.
The employer/carrier appeal an order finding that claimant has an average weekly wage of $160.00 and that she suffered a 10% permanent partial disability of the body as a whole. They contend that the Deputy Commissioner erred in basing claimant's average weekly wage in part on her wages from her concurrent employment as a domestic servant in private homes. They further contend that the finding of a 10% permanent partial disability of the body as a whole is in error because the Deputy Commissioner failed to apply the deduction provision of Section 440.15(5)(c), Florida Statutes. We agree with the employer/carrier that the Deputy Commissioner improperly computed claimant's average weekly wage but we affirm his finding of a 10% permanent partial disability of the body as a whole.
Claimant injured her back in a compensable accident on November 28, 1978. At the time of the accident, she was a part-time employee earning an average weekly wage of $53.00 with the employer. However, during the thirteen weeks preceding her accident with the employer, claimant held concurrent employment as a domestic servant in private homes earning an average of $107.00 weekly. The Deputy Commissioner combined these earnings and found that claimant had an average weekly wage of $160.00 entitling her to compensation at the rate of $96.00 weekly. We agree with the employer/carrier that this was error because wages earned by a claimant in employment excluded from coverage under the act are not includable in determining claimant's compensation base. Jay Livestock Market v. Hill, 247 So.2d 291 (Fla.1971). In Jay Livestock Market v. Hill, the Supreme Court refused to include the claimant's wages from concurrent employment as a farm laborer in determining his average weekly wage since his employment as a farm laborer was specifically excluded from coverage under the Workmen's Compensation Act. Similarly, claimant's work as a domestic servant in private homes is specifically excluded from the definition of employment found in Section 440.02(1)(c), 1977 Florida Statutes. Following the rule provided in Jay Livestock Market v. Hill, and the cases cited therein, we conclude that claimant's wages as a domestic servant in private homes are outside the operation of the Act and may not be used in determining her average weekly wage. While we have sympathy with claimant's argument that the purpose of the compensation act is to compensate for loss of wage earning capacity due to a work connected injury and that what is involved is the capacity of the "whole man"...
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