Sunshine Ace Hardware v. Gray, 88-1366

• Decision Date: 14 February 1989
• Docket Number: No. 88-1366,88-1366
• Citation: 541 So.2d 1236,14 Fla. L. Weekly 462
• Parties: 14 Fla. L. Weekly 462 SUNSHINE ACE HARDWARE and Crum & Forester Commercial Insurance, Appellants, v. Donald E. GRAY, Appellee.
• Court: Florida District Court of Appeals

Page 1236

541 So.2d 1236

14 Fla. L. Weekly 462

SUNSHINE ACE HARDWARE and Crum & Forester Commercial Insurance, Appellants, v. Donald E. GRAY, Appellee.

No. 88-1366.

District Court of Appeal of Florida,

First District.

Feb. 14, 1989.

Rehearing Denied May 15, 1989.

Claire L. Hamner of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.

Peter C. Burkert of Burkert & Hart, Fort Myers, for appellee.

MINER, Judge.

In this workers' compensation appeal, the employer/carrier (e/c) assert that the deputy commissioner (dc) erred in allowing pre-injury earnings from concurrent part-time work not covered by workers' compensation to be included in the average monthly earnings figure used for wage loss calculation. We agree and reverse.

Here, the claimant suffered a compensable accident on April 25, 1986. He was treated by several doctors, returned to light duty status and reached maximum medical improvement (MMI) on October 16, 1987. Prior to his accident, Mr. Gray worked full time for the e/c and also sold real estate on a part time basis. Following his return to light duty status, he chose not to return to his full time position with the employer, opting instead to sell real estate full time. The dc found that this decision was supported by the recommendation of his doctor and was reasonable considering Gray's injury and vocational capabilities. This finding was not disputed by the parties.

On March 16, 1988, a hearing was held on claimant's request for wage loss benefits and an increase in his average weekly wage (AWW). On May 3, 1988, the dc, having concluded that claimant's pre-injury part-time real estate earnings should be included in the AWW computation, issued an order increasing AWW. The dc also ordered that the e/c were entitled to offset claimant's full time real estate earnings in computing wage loss. Although he acknowledged that claimant's real estate work was in non-covered employment and thus was not includable in computing AWW, he reasoned that such employment was properly considered for purposes of establishing wage loss. With that portion of the dc's order finding e/c's entitlement to an offset for claimant's full time real estate earnings the parties are now in agreement. ¹ Thus, the dispute here is limited to the dc's inclusion of pre-injury real estate earnings in determining claimant's AWW.

A review of the record persuades us that claimant was not an "employee" within the meaning of Section 440.02(11)(d)(1), Florida Statutes (1987), during the time he was selling real estate part-time. He was, in fact, an independent contractor or as he described his status, an "independent agent." He worked out of his home, his hours were varied, he had "no obligation for a time schedule" and "didn't report to the office area." Nowhere in the record do we find the type of supervision and control over his work indicative of other than independent contractor status.

Because he was an independent contractor, Mr. Gray's earnings should not have been included in the determination of his AWW. It is well settled that earnings made as an independent contractor are not includable in the determination of AWW. Wilson v. City of...