Salinas v. C.A.T. Concrete, LLC, Case No. 1D09-4208 (Fla. App. 5/21/2010)
| Decision Date | 21 May 2010 |
| Docket Number | Case No. 1D09-4208. |
| Parties | SIMEON SALINAS, Appellant, v. C.A.T. CONCRETE, LLC and CLAIMS CENTER, Appellees. |
| Court | Florida District Court of Appeals |
Mario R. Arango of De Varona & Arango, Miami; Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
In this workers' compensation appeal, Claimant argues that the Judge of Compensation Claims ("JCC") erred in rejecting the parties' pretrial stipulation regarding Claimant's average weekly wage ("AWW") and in refusing to accept the medical opinions of Claimant's unauthorized treating physician. We affirm.
On August 9, 2007, Claimant suffered a compensable injury while working as a carpenter for the Employer/Carrier ("E/C"). Following the injury, Claimant filed petitions for benefits requesting, in relevant part, temporary partial disability ("TPD") benefits beginning August 9, 2007, and continuing. Prior to the final hearing, Claimant and the E/C stipulated to an AWW of $600. However, the JCC denied the TPD claim on the authority of our decision in Fast Tract Framing, Inc. v. Caraballo, 994 So. 2d 355 (Fla. 1st DCA 2008). The JCC concluded that because Claimant did not report his income to the Internal Revenue Service, his unreported wages could not serve as the basis for calculating his AWW. This appeal followed.
Although the parties stipulated to Claimant's AWW, a JCC is not required to follow a stipulation that is refuted by competent, substantial evidence. See Farnam v. U.S. Sugar Corp., 9 So. 3d 41, 42 (Fla. 1st DCA 2009) (); Sapp v. Berman Bros., 884 So. 2d 1080, 1082 (Fla. 1st DCA 2004) (). Here, it was Claimant's own testimony that refuted the parties' stipulation. Claimant admitted during the hearing that he was an illegal immigrant who had never filed any federal income taxes. As we have previously held, a claimant's AWW cannot be based on income that has not been reported for federal income tax purposes. See Caraballo, 994 So. 2d at 358. While Claimant argues that he should have been provided with an opportunity to be heard regarding the JCC's rejection of the AWW stipulation, he has failed to show how he could have cured the reporting defect. As such, Claimant was not unfairly prejudiced by the JCC's rejection of the stipulation. We, therefore, affirm as to this first issue. We affirm as to the second issue as well given that the argument was not preserved for appeal.
AFFIRMED.
I concur, but write to respectfully address the dissenting opinion, which states that "no suggestion has been made that the rights or interests of any third party was affected by the stipulation." That is not the case here, where the legislature has defined what constitutes "wages," and thus, what can form the basis for a determination of Average Weekly Wage, and ultimately determine an award of temporary partial disability. Here, the "third party" involved is in fact the Legislature, which defines the public policy of the state. Although stipulations that resolve personal factual disputes between parties may be appropriate and therefore binding, here, the Judge of Compensation Claims heard undisputed evidence that Appellant failed to report his wages as taxable income. Thus, his income could not constitute wages under Florida Statutes because it was not reported "for federal income tax purposes." § 440.02(28), Fla. Stat.; Fast Tract Framing, 994 So. 2d 355, 358 (Fla. 1st DCA 2008). As noted by Appellee and the majority opinion, there is no evidence or claim that Appellant had ever reported his income. In fact, Appellant stated below that he had not filed a tax return in ten years.
As we noted in Fast Tract Framing, the unambiguous text of section 440.02(28) requires that a claimant, not his employer, report wages to the Internal Revenue Service. 994 So. 2d at 357-58. Thus, the question here is whether parties can decide between themselves that the legislature's definition will be rendered void and bind a judge to this agreement.
Gunn Plumbing, Inc. v. Dania Bank, cited by the dissenting opinion, provides a useful comparison. 252 So. 2d 1 (Fla. 1971). There, the stipulation involved the usury statute, and the supreme court stated that usury was "purely a personal defense created by statute for the protection of borrowers and, therefore, any borrower may waive his right to claim the benefit of such statute." 252 So. 2d at 4. The court's statement that a stipulation which involves "a matter which is appropriate to stipulate [to] is binding upon the parties and upon the Court" may be contrasted with this case, where a stipulation is not appropriate. 252 So. 2d at 4 (emphasis added).
The legislature's requirement that income must be reported for federal income tax purposes to qualify as wages is a public policy obviously intended to discourage tax evasion and inaccurate calculations of employee earnings. In addition, the law seeks to ensure accurate calculation for payment of workers' compensation insurance premiums, which are based on the employer's total payroll. This statute affects not just the parties, but the entire workers' compensation statutory scheme, as inflated and inaccurate wage calculations affect employer premiums. The statute at issue here is quantitatively different that the statute at issue in Gunn Plumbing and, for that matter, the waiver of any objection to the admission of polygraph evidence in Davis v. State, 520 So. 2d 572 (Fla. 1988), which is also cited by the dissent. The stipulation at issue in Friendly Homes of the South, Inc., 932 So. 2d 634 (Fla. 2d DCA 2006), belongs in the same category of stipulations as in Davis and Gunn Plumbing; to wit: personal and "appropriate" matters of stipulation that involve rights and responsibilities personal to the parties, not matters of public policy in conflict with statutory law. In Friendly Homes, for example, the Second District noted that the legislature had authorized parties to stipulate to arbitration. 932 So. 2d at 637. By contrast, the legislature has not authorized parties to waive the requirement that employees must report their wages "for federal income tax purposes" in order to qualify as "wages" under section 440.02(28), Florida Statutes.
Under section 440.02(28), Florida Statutes, Appellant had the legal duty to report his income for federal income tax purposes in order to establish that he earned "wages" which could form the basis of an average weekly wage and an award of temporary partial disability. Appellant could not evade that duty based on a private agreement with another party in a judicial proceeding, and certainly cannot bind a court to enforce such an agreement.
It is unfortunate that Appellee stipulated to a matter that was not appropriate and not authorized in law; however, it was Appellant's lawful duty to report his wages for federal tax purposes, as required by the Legislature. Because Appellant has not claimed that he reported his wages "for federal income tax purposes," but only that he could have, had Appellee not offered the stipulation, I concur in the holding here.
Because I conclude that the majority decision here, although entered in the utmost good faith, portends a trend that would upset decades of settled Florida law concerning the ability of parties to litigation to control issues presented, I respectfully dissent. This workers' compensation matter does not turn upon any application of our decision in FastTract Framing, Inc. v. Caraballo, 994 So. 2d. 355 (Fla. 1st DCA 2008). Instead, the case should be resolved by resort to basic tenets of due process and settled Florida law.
In a pre-trial stipulation duly filed with the Judge of Compensation Claims (JCC), the parties agreed that Salinas' average weekly wage (AWW) would be $600.00. Appellee, the employer, never moved for relief from that stipulation, nor put on any evidence at all to support a finding sufficient to have afforded such relief. Claimant testified during the course of the final hearing that he has no social security number and has never filed a federal income tax return while living in the United States. Also, claimant acknowledged that he would be classified, depending upon one's particular view, as an undocumented worker or an illegal alien. In ruling upon claimant's petition for temporary partial disability (TPD) benefits, the JCC viewed the medical testimony as supportive of that claim. Nonetheless, the JCC denied the claim, finding, sua sponte, that because claimant was an illegal immigrant who did not report his income to the Internal Revenue Service (IRS), claimant was "precluded from receiving TPD benefits for this period, as his non-reported wages [could] not be the basis for calculating the AWW." From that denial of benefits claimant takes this appeal, arguing the parties entered into a valid pretrial stipulation concerning AWW, no defenses had ever been raised on the AWW issue, and claimant had no opportunity to be heard on the issue.
Claimant, having negotiated a pretrial stipulation, removing certain elements of the claim from consideration by the JCC, found himself subjected to a deprivation of his fundamental right to due process. The notion that only those...
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