Wal-Mart Stores v. Campbell
|694 So.2d 136
|02 June 1997
|22 Fla. L. Weekly D1399 STORES and Claims Management, Inc., Appellants, v. George CAMPBELL, Appellee.
|Court of Appeal of Florida (US)
The employer and servicing agent (E/SA) appeal a workers' compensation order awarding benefits based on an increased average weekly wage (AWW) due to concurrent employment, asserting that the judge of compensation claims (JCC) used an improper method of calculating the increased AWW under section 440.14(1), Florida Statutes (Supp.1990). We affirm.
The claimant was injured in December 1990 while performing his full-time job at Wal-Mart, at which he had worked for substantially the whole of thirteen weeks immediately preceding the accident. For six weeks immediately preceding the accident, he had also worked part-time at Krystal. The accident was accepted as compensable and benefits were paid based on an average of the claimant's previous thirteen weeks of employment at Wal-Mart (the original AWW). The parties differed with respect to the proper method of calculating the increase in AWW due to the concurrent employment at Krystal. The claimant suggested dividing the total amount earned at Krystal by the number of weeks actually worked at Krystal and adding that figure to the original AWW. The E/SA advocated dividing by thirteen the total amount earned at Krystal and Wal-Mart during the thirteen-week period contemplated by section 440.14(1)(a).
The JCC used the method suggested by the claimant, quoting American Uniform and Rental Service v. Trainer, 262 So.2d 193 (Fla.1972): 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. Murdoch, 520 So.2d 600 (Fla. 1st DCA 1987), for the proposition that "a critical inquiry must be whether the claimant, during the 13-week period, held concurrent employment which was expected to continue in the future." He found that in the instant case, as in Gomez, "the fact that the Claimant intended to continue working at his concurrent employment was, and must be, accorded significant weight." He concluded that under the circumstances presented:
... the only consistent result of attempting to determine the proper AWW of the Claimant is to adopt the method of calculation and the figures suggested by the Claimant, since the goal is to utilize "the fairest and most reasonable way to determine the average weekly wage ..." Florida Cast Stone v. Dehart, 418 So.2d 1271, 1272 (Fla. 1st DCA 1982).
Although this specific method of determining the AWW has not been addressed by the District Court of Appeal, First District (1st DCA), that same court has stated that a judge of compensation claims (JCC) is "not a cipher or a calculating robot, but (should be) a judge of claimant's unique employment situation." Id. In this unique situation, and with particular weight given to the fact that the Claimant's concurrent employment was likely to continue beyond the date of his work injury, I find that the Claimant's AWW should be $211.38.
The E/SA filed a motion for rehearing, citing Quality Painting v. Harrison, 529 So.2d 1172 (Fla. 1st DCA 1988), as "directly on point" and stating the holding in that case as: "[W]here the claimant works the full 13 weeks in one of the employments the approach is to combine all wages and divide by 13." In Quality Painting, the claimant had been working full-time as a cashier during the thirteen weeks prior to her accident. Because she experienced seasonal layoffs at this job, she had begun a three-day trial period as a painter, in which employment she anticipated working during her next layoff. The accident occurred on the first day of this concurrent employment. Both parties disagreed with the JCC's calculation of AWW based on the claimant's thirteen weeks earnings as a cashier plus three days prospective earnings as a painter. On appeal, the court found that her earnings for the thirteen-week period properly included her earnings as a painter for the one day she actually worked, holding that section 440.14(1)(a) was the proper method for calculating AWW where the concurrent employment is dissimilar, and citing Trainer and Watson. There was no evidence that the claimant in Quality Painting intended to continue the concurrent employment beyond the three-day trial period. At the hearing on the motion for rehearing in the instant case, the claimant's attorney distinguished Quality Painting, noting: "In the present case, the claimant intended to work both jobs--had worked both jobs and there is no evidence to suggest that he wouldn't have been able to continue working both jobs." The JCC denied the motion, noting his role of determining a fair and reasonable estimate of the claimant's earning capacity.
The parts of section 440.14(1) pertinent to our discussion of the issue in this case have been renumbered, but have not been substantially altered over the past fifty years. The 1990 version of the statute applicable to this case provides, in pertinent part:
(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 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.
(b) If the injured employee has not worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph.
. . . . .
(d) If any 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 paragraph (e) or paragraph (f).
This statute is similar to the "commonest type of wage basis statute" discussed by Larson, 1 the first method using the injured employee's past earnings over some specified period immediately preceding the accident, a second method using the wages of a similar employee when the injured employee has not worked during substantially the whole of the specified period, and a "catchall" method aimed at determining a wage that "fairly and reasonably" represents the injured employee's earning capacity, applicable when the other statutory methods cannot "fairly and reasonably be applied." Larson states that the calculation of AWW "is not intended to be automatic and rigidly arbitrary" 2 and that the test of the "fairness and reasonableness" of a method is plain: "Does it produce an honest approximation of claimant's probable future earning capacity?" 3 He notes that "there are almost an infinite number of variables that might figure in" the determination of AWW where use of the catchall method is indicated and that, "unspecific as this test is, it is much better than a technical test that methodically produces demonstrably inequitable results." 4
The E/SA contend that Vegas controls this case and requires AWW based on concurrent employments to be calculated pursuant to the "simple, albeit arbitrary method" set out in the plain language of 440.14(1)(a), as opposed to the "equitable" approach urged by the claimant and adopted by the JCC. They assert that the method sanctioned by Vegas is to divide the total amount of wages earned in the concurrent employments during the thirteen weeks preceding the accident by thirteen, citing Quality Painting. In Vegas, the issue was not which part of section 440.14(1) applied to calculation of AWW in the case of concurrent earnings, but whether chapter 90-201, Laws of Florida, amending the definition of "wages" in section 440.02(24), affected the calculation of AWW under section 440.14(1). We held in that case that the amendment to the definition of "wages" in section 440.02(24) did not affect the calculation of Vegas' AWW under section 440.14(1), and further rejected the argument that chapter 90-201, Laws of Florida, overruled case law interpreting section 440.14(1). In a footnote, we noted the apparent confusion regarding the question of which subsection applied to calculation of AWW in the case of concurrent earnings, and observed that in Quality Painting this court had stated that "in cases of dissimilar concurrent employment section 440.14(1)(a) will apply, and the combined wages approach should be utilized, if the claimant has worked for the requisite 13 weeks in one of the employments." We did not hold in Vegas that AWW must be calculated using section 440.14(1)(a) whenever concurrent earnings were involved.
The claimant argues that the JCC properly construed section...
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