Vegas v. Globe Sec., No. 91-3417

CourtCourt of Appeal of Florida (US)
Writing for the CourtKAHN; ZEHMER; ALLEN; WOLF; DAVIS; ZEHMER; ALLEN; WOLF
Citation627 So.2d 76
Parties18 Fla. L. Weekly D2503 Blanca E. VEGAS, Appellant, v. GLOBE SECURITY and CIGNA, Appellees.
Docket NumberNo. 91-3417
Decision Date22 November 1993

Page 76

627 So.2d 76
18 Fla. L. Weekly D2503
Blanca E. VEGAS, Appellant,
v.
GLOBE SECURITY and CIGNA, Appellees.
No. 91-3417.
District Court of Appeal of Florida,
First District.
Nov. 22, 1993.

Jerold Feuer, Miami, for appellant.

Edward W. Levine, of Marlow, Connell, Valerius, Abrams, Lowe & Adler, Miami, for appellees.

Marguerite H. Davis of Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, Tallahassee, for amicus curiae National Council on Compensation Ins.

Page 77

EN BANC

KAHN, Judge.

Blanca E. Vegas, formerly employed as a security guard at Miami International Airport, has challenged one aspect of the 1990 amendments to chapter 440, Florida Statutes. Ch. 90-201, Laws of Fla. See also, Ch. 91-1, Laws of Fla. 1 Specifically, Ms. Vegas takes issue with that portion of the act which amended section 440.02(24), Florida Statutes, the definition of "wages." Ch. 90-201, Sec. 9, Laws of Fla.; Ch. 91-1, Sec. 7, Laws of Fla. She argues that in calculating her average weekly wages (AWW), the judge of compensation claims (JCC) erroneously utilized the restrictive 1990 definition of wages, rather than adhering to the language of section 440.14(1), Florida Statutes (1989), a section overlooked by the Legislature during the comprehensive facelift given chapter 440 in 1990. She further argues that if the new definition of wages is construed to apply to the calculation of her AWW, then the new statute is unconstitutional as a denial of due process, access to courts, and equal protection. 2 Today we hold that on the facts presented in this case, the calculation of Vegas' AWW under section 440.14(1) has not been altered by the new wording of 440.02(24), and accordingly we reverse and remand. Since the concurrent earning provisions of section 440.02(24) will not apply to the calculation of AWW in this case, we do not reach the constitutional issues raised.

The operative facts are without dispute. Claimant Vegas was injured on July 2, 1990, when she tripped on a rug in the course of her employment with Globe Security. Globe Security contracts to provide security on Concourse D of the Miami International Airport. Claimant, a uniformed security guard, had responsibility for checking passengers and baggage passing on to the concourse. She also worked for Argenbright & Associates, a company that contracted to provide security on the B and C Concourses at the airport. Both companies supplied her with a uniform, and her job responsibilities for each employer were very similar. Claimant had worked as a security person at least for substantially all of the 13 weeks prior to her accident.

By stipulation, claimant and Globe Security agreed that claimant's AWW with Globe Security is $156.38. They further stipulated that the AWW with Argenbright & Associates is $92.66. In the order now under review, the JCC found that the definition of wages contained in section 440.02(24), Florida Statutes (Supp.1990), controls the computation of AWW under section 440.14(1)(a), Florida Statutes (1989). He thus entered an order finding that claimant's concurrent employment earnings from Argenbright & Associates could not be included in the calculation of her AWW, under the dictates of section 440.02(24). AWW was therefore established, pursuant to the stipulation, at $156.38.

AWW under chapter 440 is a term of art, and may only be calculated by reference to the formula contained in section 440.14, or some other comparable statutory formula. The portion of section 440.14 that applies to the present case provides as follows:

440.14 Determination of pay.--

(1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s. 440.12(2), as follows:

(a) 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

Page 78

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.

Sec. 440.14(1)(a), Fla.Stat. (1989).

During the 1990 revisions to chapter 440, the Legislature neither added nor took away any of the operative language of section 440.14(1)(a). Similarly, neither in 1990, nor at any time before or since, has the Legislature provided in the definitional section of chapter 440 a definition of AWW. It is clear from a review of the language of section 440.14(1)(a) that the term "average weekly wages" is not synonymous with the term "wages." Section 9 of chapter 90-201, as codified at section 440.02(24), Florida Statutes (Supp.1990), provides the following definition of wages:

(24) "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 and includes only the wages earned on the job where the employee is injured and does not include wages from outside or concurrent employment except in the case of a volunteer firefighter....

(emphasis added).

The employer/carrier urges that the Legislature's use of the phrase "includes only the wages earned on the job where the employee is injured and does not include wages from outside or concurrent employment" significantly alters the practical application of section 440.14(1). In support of their contention, the employer/carrier point to the legislative intent set out in chapter 90-201 3 and

Page 79

also to the prefatory language of section 440.14(1): "Except as otherwise provided in this Chapter...." Neither argument, however, provides us with sufficient rationale to ignore the plain language of section 440.14(1)(a).

At the outset of our analysis, we note that the term "wages," defined in the 1990 amendments, does not, within the literal language of section 440.14(1)(a), stand alone so that its definition may be derived simply by resort to section 440.02(24). The word "wages" first appears as part of the phrase "average weekly wages," which is obviously the subject of section 440.14. In subsection (1)(a) the term "wage" appears once more as part of the phrase "average weekly wage." The word "wages" appears but one other time in the statute, namely at the end of the first sentence of subsection (1)(a). The reference at this point, however, is not simply to wages. It is specifically and exclusively to "wages earned in such employment." To look only to section 440.02(24) for enlightenment as to the meaning of wages would require us to ignore the phrase "earned in such employment." This phrase, however, refers back to the most significant part of the sentence which 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...." The phrase "such employment" can only relate back to the employment previously referred to in section 440.14(1)(a), which expressly includes "the same or another employer." We must thus determine the meaning of this language, and such a task may only be accomplished by resort to the case law of three decades focusing upon this very statute.

In Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla.1961), the supreme court looked at the 1957 version of section 440.14, which was identical to the portion of section 440.14(1)(a), Florida Statutes (1989), that we construe today. In Jaquette, the deceased employee had earnings from both Jaquette Motor Company and the Florida East Coast Railway. The deputy commissioner in that case based the award of compensation on a combination of earnings from both employments. The supreme court concluded that error occurred by inclusion of the earnings from Florida East Coast Railway, but based such conclusions solely upon the fact that employment by the railroad is "specifically exempted from the operation of the Workmen's Compensation Act." 134 So.2d at 240. The court observed, without passing judgment, that section 440.14 had historically been construed by the Florida Industrial Commission as authority for using concurrent earnings in the calculation of AWW:

Sub-section (3) of the same section provides "if either of the foregoing methods cannot reasonably and fairly be applied the full time weekly wages of the injured employee shall be used, except as otherwise provided in subsection (4) or (5) of this section."

... The latter section has been cited by the Industrial Commission as authority for combining for the purposes of computing the average weekly wage the earnings of a claimant from two concurrent though dissimilar employments where the employments were both covered by the Workmen's Compensation Act. White's Superette v. Barnes, Claim No. 2-90874; cert. den. 125 So.2d 875. The basis of the White's Superette decision was that it was neither reasonable nor fair to compute the wage base of the employee solely upon his earnings from the employment out of which his injury transpired.

134 So.2d at 240 (emphasis in original).

The statutory language identified in Jaquette as deriving from subsection (3) is the same language that still survives as section 440.14(1)(d), Florida Statutes (1991).

One year later the court again looked at section 440.14 in J.J. Murphy & Son, Inc. v. Gibbs, 137 So.2d 553 (Fla.1962), a case involving a 1959 industrial injury. Claimant Gibbs...

To continue reading

Request your trial
31 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 de junho de 2006
    ...629 So.2d 862 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision)); Vegas v. Globe Sec., 627 So.2d 76 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Ullman v. City of Tampa Parks Dep't, 625 So.2d......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 de junho de 2006
    ...629 So.2d 862 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision)); Vegas v. Globe Sec., 627 So.2d 76 (Fla. 1st DCA 1993) (en Page 630 decision released without antecedent publication of panel decision); Ullman v. City of Tampa Parks Dep't, 625 S......
  • Wal-Mart Stores v. Campbell, WAL-MART
    • United States
    • Court of Appeal of Florida (US)
    • 2 de junho de 1997
    ...of the 'whole man' not the capacity of the part-time or full-time worker that is involved." He also cited Vegas v. Globe Security, 627 So.2d 76 (Fla. 1st DCA 1993), rev. den., Globe Security v. Vegas, 637 So.2d 234 (Fla.1994), as having "reaffirmed the foregoing concepts," and Gomez v. Murd......
  • James v. ARMSTRONG WORLD INDUSTRIES, INC., No. 1D02-2340.
    • United States
    • Court of Appeal of Florida (US)
    • 31 de dezembro de 2003
    ...representation of this claimant's own earnings in some arbitrary past period has been used as a wage basis." Vegas v. Globe Sec., 627 So.2d 76, 82 (Fla. 1st DCA 1993) (en banc) (quoting 2 Larson, The Law of Workmen's Compensation, § 60.11(d), at 10-564 (1986)). See also Witzky v. W. Coast D......
  • Request a trial to view additional results
31 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 de junho de 2006
    ...629 So.2d 862 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision)); Vegas v. Globe Sec., 627 So.2d 76 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Ullman v. City of Tampa Parks Dep't, 625 So.2d......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 28 de junho de 2006
    ...629 So.2d 862 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision)); Vegas v. Globe Sec., 627 So.2d 76 (Fla. 1st DCA 1993) (en Page 630 decision released without antecedent publication of panel decision); Ullman v. City of Tampa Parks Dep't, 625 S......
  • Wal-Mart Stores v. Campbell, WAL-MART
    • United States
    • Court of Appeal of Florida (US)
    • 2 de junho de 1997
    ...of the 'whole man' not the capacity of the part-time or full-time worker that is involved." He also cited Vegas v. Globe Security, 627 So.2d 76 (Fla. 1st DCA 1993), rev. den., Globe Security v. Vegas, 637 So.2d 234 (Fla.1994), as having "reaffirmed the foregoing concepts," and Gomez v. Murd......
  • James v. ARMSTRONG WORLD INDUSTRIES, INC., No. 1D02-2340.
    • United States
    • Court of Appeal of Florida (US)
    • 31 de dezembro de 2003
    ...representation of this claimant's own earnings in some arbitrary past period has been used as a wage basis." Vegas v. Globe Sec., 627 So.2d 76, 82 (Fla. 1st DCA 1993) (en banc) (quoting 2 Larson, The Law of Workmen's Compensation, § 60.11(d), at 10-564 (1986)). See also Witzky v. W. Coast D......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT