University of Florida v. Collins

• Decision Date: 28 August 1996
• Docket Number: No. 94-428,94-428
• Citation: 678 So.2d 503
• Parties: 21 Fla. L. Weekly D1950 UNIVERSITY OF FLORIDA and Division of Risk Management, Appellants, v. Lula Mae COLLINS, Appellee.
• Court: Florida District Court of Appeals

Page 503

678 So.2d 503

21 Fla. L. Weekly D1950

UNIVERSITY OF FLORIDA and Division of Risk Management, Appellants, v. Lula Mae COLLINS, Appellee.

No. 94-428.

District Court of Appeal of Florida First District.

Aug. 28, 1996.

Barry D. Graves of Ritch & Graves, P.A., Gainesville, for Appellants.

Thomas W. Davis of Davis & Fernandes, Sr., Gainesville, for Appellee.

PER CURIAM.

The University of Florida (Employer) and Division of Risk Management (Carrier) appeal, and Lula Mae Collins (Claimant) cross appeals a workers' compensation order that awards temporary total and permanent total disability benefits for certain periods, supplemental benefits, penalties, interests and costs. We affirm as to the issues raised on appeal, and reverse and remand as to the issue raised on cross appeal.

On April 4, 1988, the 64-year-old claimant slipped and fell on a wet floor, fracturing her right wrist. Claimant had worked for Employer for approximately 1 1/2 years as a full-time custodian. At the time of the accident, Employer provided the following fringe benefits to Claimant: accrued retirement benefits, annual and sick leave that accrued at the rate of four (4) hours each bi-weekly pay period, and smocks. Employer and Carrier accepted the accident as compensable and provided Claimant with medical treatment and disability benefits. Claimant subsequently filed a claim seeking, among other things, a correct determination of her average weekly wage (AWW) and corresponding compensation rate, temporary total disability benefits (TTD), permanent total disability benefits (PTD), and supplemental benefits. On December 14, 1989, the Florida Retirement System approved Claimant's claim for disability retirement in-line-of-duty benefits. On December 3, 1990, Employer and Carrier filed a form accepting Claimant as PTD effective November 20, 1990.

After final hearing, the judge ordered that Employer and Carrier pay TTD and PTD benefits for certain periods in addition to supplemental benefits from March 2, 1990, penalties, interest, and costs. The judge found that Claimant reached MMI on March 2, 1990, and granted the claim for increase in AWW to include, among other things, the value of accrued annual leave, in-line-of-duty disability benefits, and uniforms (smocks).

Employer and Carrier raise four issues on appeal. First, they contend that in determining Claimant's AWW, the judge erred in failing to apply subsection 440.14(1)(a), Florida Statutes (Supp.1988). Although Claimant worked less than 90% of her customary full time hours during the 13-week period immediately preceding the accident, she earned wages and was paid for more than 90% of her full time hours through the use of accrued leave time during the 13-week period. They also argue it was error to include accrued annual leave in AWW because those benefits were not vested at the time of the accident and "double dipping" results when the judge includes in AWW accrued leave earned during the 13 weeks immediately preceding the accident and also annual leave paid during that period.

We hold, as did the judge below, that subsection 440.14(1)(a) is inapplicable to the facts in this case. That subsection provides:

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. As used in this paragraph, the term "substantially the whole of 13 weeks" shall be deemed to mean and refer to a constructive period of 13 weeks as a whole, which shall be defined as a consecutive period of 91 days, and the term "during substantially the whole of 13 weeks" shall be deemed to mean during not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole.

(Emphasis added.) The emphasized language refers to 90% of the total customary full-time hours, and it is undisputed that Claimant worked less than 90% of her total customary full-time hours of employment during the 13 weeks immediately preceding the accident. Hence, the judge properly found that subsection (1)(a) is inapplicable. There has been no challenge to the judge's finding that neither subsection (1)(b) nor (1)(c) applies. Accordingly, the judge properly used a base rate of $175.60 (40 hours X $4.39 hourly rate) for AWW purposes, plus includable fringe benefits. § 440.14(1)(d), Fla.Stat. (1987) ("If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used.") See Lavin v. Alton Box Bd. Co., 431 So.2d 202 (Fla. 1st DCA 1983).

We also reject the argument that it was error to include Claimant's accrued annual leave in calculating AWW. We have now held that leave programs, because they represent valuable consideration over and above the hourly wage, fit within the broad definition of "income" under section 440.02(23) of the workers' compensation statute. University of Florida v. Bowens, 677 So.2d 942 (Fla. 1st DCA 1996); Dubois Farms, Inc. v. Paul, 566 So.2d 923 (Fla. 1st DCA 1990). It need only be determined that the Claimant's right to the benefit had vested prior to the accident for it to be included in the calculation of AWW. Bowens; City of Daytona Beach v. Amsel, 585 So.2d 1044 (Fla. 1st DCA 1991). The record contains competent, substantial evidence to support the judge's finding that claimant's right to accrued leave had vested during the 13-week period immediately preceding the accident. Employer and Carrier do not challenge these findings:

... For this benefit, only six months of employment is required before an employee's rights become vested. Since the claimant met this condition, there is a component of AWW attributable to annual leave. Page 16 of the Handbook indicates that employees earn 4 hours biweekly, or 2 hours per week, in annual leave. For Ms. Collins' pay rate of $4.39 per week, this means an increase in the AWW of $8.78 attributable to annual leave....

(Emphasis added.)

Employer and Carrier next contend it was error to include in AWW Employer's contribution to the retirement program for in-line-of-duty disability benefits. They argue that the in-line-of-duty disability benefit was not vested because Claimant has less than ten (10) years of service and her application had not been approved by the State retirement office during the 13-week period prior to the accident. They also argue that the judge erred in using the sum of $5.85 to represent Employer's contribution for this benefit because the evidence indicates that a portion of this sum is allocated to the cost of operating the Florida Retirement System which provides several different...