Tampa Elec. Co. v. Bradshaw, AY-228

• Court: Court of Appeal of Florida (US)
• Writing for the Court: ERVIN; BOOTH; THOMPSON; THOMPSON
• Citation: 477 So.2d 624,10 Fla. L. Weekly 2212
• Docket Number: AY-228
• Decision Date: 24 September 1985
• Parties: 10 Fla. L. Weekly 2212 TAMPA ELECTRIC COMPANY, Appellant, v. Chester BRADSHAW, Appellee.

Page 624

477 So.2d 624 10 Fla. L. Weekly 2212 TAMPA ELECTRIC COMPANY, Appellant,
v.
Chester BRADSHAW, Appellee. AY-228. District Court of Appeal of Florida,
First District. Sept. 24, 1985.
Rehearing Denied Nov. 14, 1985.

Page 625

Charles E. Bentley of Holland & Knight, Lakeland, for appellant.

Susan W. Fox of McFarlane, Ferguson, Allison & Kelly, Tampa, and William D. Douglas, Tampa, for appellee.

ERVIN, Judge.

In this workers' compensation case, the employer appeals the deputy's order, finding that claimant's average weekly wage (AWW) includes a retroactive pay increase and earnings from his concurrent employment, and awarding wage loss benefits. We affirm.

In 1979, claimant was employed as a ground equipment operator for employer. As such, he was required to use hand tools, climb ladders and equipment, and lift heavy items. On July 14, 1981, and August 12, 1981, he suffered compensable, work-related injuries to his right knee, and received medical treatment, including arthroscopic surgery in August 1981 on his right knee to repair a medial meniscus tear. Despite post-operative therapy, his knee continued to swell and cause pain. In February 1982, another orthopedic surgeon performed a second arthroscopic surgery on the knee. Although the second surgery was apparently more successful than the first, claimant still complained of pain and swelling in the knee while lifting heavy loads or climbing. The doctor who performed the last surgery assessed the likelihood of total recovery as "slim" and assigned a fifteen percent impairment rating to the body as a whole. He also placed restrictions on claimant's working at heights, or climbing poles or ladders.

At all relevant times, claimant was a member of the International Brotherhood of Electrical Workers (IBEW), Local 108. Local 108 had a collective bargaining agreement with the employer which expired on March 31, 1981. From that date until a new contract was ratified on October 19, 1981, the parties continued under the terms of the expired contract. The new contract, which included a pay-rate increase for claimant, was made retroactive to April 1, 1981. For the thirteen weeks before the date of claimant's first accident, occurring on July 14, 1981, he did not know what his pay-rate would be under the new contract. The evidence before the deputy, however, revealed that for the past 30 years all contracts between the employer and the IBEW have made pay increases retroactive to the expiration date of the prior contracts.

At the time of his accidents, claimant was also employed as a part-time welding instructor at Pasco-Hernando Community College (PHCC). The welding classes consisted of classwork, lab work and field trips. PHCC furnished the classroom, lab, textual materials, instruction sheets and equipment. Claimant was not required to provide any tools, but he sometimes brought in tools for specialized work. PHCC told claimant when to teach the class, usually from 7:00 to 10:00 p.m., and paid claimant only for those hours. The provost of PHCC observed claimant's class on a monthly basis and then offered constructive criticism on handling the students. Claimant received $920 per semester for teaching; PHCC did not deduct withholding and social security taxes from

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claimant's paychecks. Additionally, PHCC had a contractual right to cancel claimant's course if the number of students enrolled was too low. Claimant admitted that he never saw a workers' compensation insurance policy covering him at PHCC, and that PHCC never furnished information about such a policy, but he testified that he was covered with insurance in case of a work-connected accident at PHCC. An officer of PHCC testified that the college, as of July 14, 1981, had workers' compensation coverage, and that no distinction was made between full-time and part-time instructors. Claimant stopped working at PHCC after his second operation because he was unable to lift heavy objects. After completing therapy, claimant contacted PHCC about returning to his former position, but PHCC did not have an opening for a part-time welding instructor.

In September 1981, claimant, because of his injuries, was no longer able to perform the duties of a ground equipment operator. He was then transferred to the position of engineering clerk, although the employer continued, until December 1982, to pay him the same wage-rate as was paid to him as a ground equipment operator. After that, claimant became an engineering draftsman and the employer reduced his pay to the rate appropriate to his new position. Claimant continues to work full-time for the employer.

Claimant filed requests for wage loss benefits from his primary employer, seeking to have included within his AWW earnings from his concurrent employment as an instructor at PHCC. Tampa Electric controverted those requests, asserting at the hearing below that claimant had voluntarily limited his income by failing to accept employment commensurate with his abilities after reaching maximum medical improvement. Claimant testified that he had continued to look for evening and weekend work, but could name only four prospective employers, including PHCC, that he had contacted from the date of maximum medical improvement (February 28, 1983), until the date of the final hearing (February 29, 1984). None of those employers had jobs available. Claimant also testified that the condition of his knee limits the type of part-time work that he can obtain.

Dr. Homan, who performed the first surgery on claimant's right knee, concluded that as of the date of maximum medical improvement, claimant had a ten percent permanent physical impairment rating under the Orthopedic Surgeons Manual. Dr. Indelicato, who performed the second surgery, reported that claimant had 100 percent of his strength back in his right leg as of August 1983. Dr. James Murphy, an orthopedic surgeon who examined claimant in January 1984, concluded that claimant's complaints of pain were out of proportion to his condition.

In his final order, the deputy found that claimant's retroactive pay increase and his part-time earnings from PHCC should be included in a recomputation of claimant's AWW; that claimant has a permanent physical impairment; and that claimant is entitled to wage loss benefits pursuant to his corrected AWW.

Regarding the retroactive pay increase issue, the arguments raised suggest a potential conflict between sections 440.02(21) and 440.14(1). The former statute states in pertinent part: " 'Wages' means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury...." (e.s.) Section 440.14(1)(a) provides for the computation of the AWW as follows:

If the injured employee has worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks.

(emphasis supplied.)

The deputy, reasoning that because section 440.14(1)(a) provides that the AWW should be based upon wages actually earned the thirteen weeks before the injury, and not on wages paid, determined that

Page 627

the wages paid following the accident should be included within claimant's AWW, since they were earned before the occurrence of the two injuries. The deputy relied upon City of Titusville v. Taylor, IRC Order 2-2378 (August 23, 1973), cert. den., 287 So.2d 687 (Fla.1973), as support for this conclusion. Appellant, on the other hand, argues that because the claimant's later retroactive pay increase was not, as required by section 440.02(21), "the money rate at which the service rendered ... [was] recompensed under the contract of hiring in force at the time of the injury", the amount of the increase should not be included within the AWW. Appellant also argues that the contract in force at the time of the injury was either the original union contract, which had expired on March 31, 1981, but contained a continuation provision, or, if no formal contract was then in effect, the employment...