Waymire v. Florida Indus. Commission, 33829

• Decision Date: 14 April 1965
• Docket Number: No. 33829,33829
• Citation: 174 So.2d 404
• Parties: Ray V. WAYMIRE, Petitioner, v. FLORIDA INDUSTRIAL COMMISSION, Andrews Distributors, Inc., and the Home Indemnity Company, Respondents.
• Court: Florida Supreme Court

Page 404

174 So.2d 404

Ray V. WAYMIRE, Petitioner, v. FLORIDA INDUSTRIAL COMMISSION, Andrews Distributors, Inc., and the Home Indemnity Company, Respondents.

No. 33829.

Supreme Court of Florida.

April 14, 1965.

Rehearing Denied May 11, 1965.

James T. Earle and Philip J. Rogers, of Masterson, Lloyd & Rogers, St. Petersburg, for petitioner.

Mann, Harrison, Mann & Rowe, St. Petersburg, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.

THORNAL, Justice.

We have for review an order of the Florida Industrial Commission which affirmed an order of a deputy commissioner awarding certain compensation benefits.

We must decide whether the 'average weekly wage' of an employee who is paid by commissions which fluctuate in amount, but who has worked full time, is determined by the amount of commissions paid during the 13 weeks immediately preceding the injury.

Claimant Waymire suffered a compensable back injury on September 26, 1960. He was paid certain benefits which he did not consider sufficient. He filed claims for additional benefits which resulted in the order under review.

Waymire was a salesman of kitchen cabinets and equipment. He was paid weekly by commissions based on the sale of merchandise delivered. The commissions were not paid until delivery which often occurred some considerable time after the sale. In the year 1957, the employer, Andrews, paid the claimant commissions in the amount of $6,070. In 1958, the commissions amounted to $5,600. In 1959, they totaled $6,050. For each of these three years the claimant's average weekly earnings from commissions approximate $100. For the 13 weeks immediately preceding the injury, the claimant was paid commissions in the amount of $730 for an average of $56.12 per week. Under the arrangement with the employer the claimant had the privilege of a drawing account against commissions up to $75 per week. He did not 'make a draw' during the critical 13 week period. The deputy commissioner considered himself bound by the specific language of Section 440.14(1), Florida Statutes, F.S.A. He held that the claimant's average weekly wage should be calculated on the basis of the amount which he had received during the 13 weeks immediately preceding the injury. In fixing permanent partial disability he found a 20% impairment of wage-earning capacity. The Full Commission affirmed. We now have this order for review.

The claimant contends that, because of the fluctuating nature of his weekly commissions and his three-year earning history, the deputy should have held that Section 440.14(1) could not be 'reasonably and fairly' applied. In lieu thereof, he asserts that 'the full-time weekly wages' formula of Section 440.14(3), Florida Statutes, F.S.A., should have been invoked. He insists that, at least, the deputy should be required to find that Section 440.14(1), supra, could be reasonably and fairly applied, when a claimant contends that it could not be.

Section 440.14, Florida Statutes, F.S.A, provides that the average weekly wages of an employee 'at the time of the injury should be taken as the basis upon which to compute compensation * * *'

Section 440.14(1), supra reads:

'(1) If the injured employee shall have 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 thirteen 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 said thirteen weeks.'

Section 440.14(2), Florida Statutes, F.S.A., provides that the wages of a similar employee shall be used as the basis if the injured employee has not worked during substantially the whole of 13 weeks immediately preceding his injury.

Section 440.14(3), supra, then provides:

'(3) 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 subsections (4) or (5) of this section.'

The language of Section 440.14(1), supra, seems quite clear and requires no application of rules of statutory construction. The Legislature has established 'the average weekly wage', as the basic unit for determining the amount of compensation. By Section 440.14(1), supra, it has provided a method for arriving at the amount of the average weekly wage. If this method of calculation is factually available then it should be followed. In effect, the Legislature has prescribed that the method fixed by Section 440.14(1) is itself reasonable and fair when the facts before the deputy fit the pattern cut by the Legislature.

The 'concurrent similar employee' method provided by Section 440.14(2), supra, is to be used when the 13 weeks method cannot be made applicable to the facts.

If neither method can be applied, then the reasonable and fair standard of full-time weekly wages under Section 440.14(3), may be used. For example, if an employee has not worked substantially all of the preceding 13 weeks, and there is no concurrent similar employee, then the deputy may find that the methods prescribed by Sections 440.14(1) and 440.14(2),...