Wilkes & Pittman v. Pittman
| Decision Date | 20 February 1957 |
| Citation | 92 So.2d 822 |
| Parties | WILKES & PITTMAN and General Accident Fire & Life Assurance Corp., Petitioners, v. Aaron PITTMAN and Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
Dixon, DeJarnette, Bradford & Williams and Warren D. Hamann, Miami, for petitioners.
Cosgrove & Rose, Miami, and Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
The employee, Aaron Pittman, was injured while working as a plasterer. There was no arrangement between him and his employer about the number of hours he should work each day or the number of days he should work each week. At the time of the injury he had been employed for four weeks earning about $94 each week.
The lone issue is the propriety of the ruling fixing the average weekly wage but to resolve it, we must pass upon the validity of a rule adopted by the Florida Industrial Commission relative to computation of compensatory benefits for an employee who has, at the time of his injury, worked for a shorted period than 13 weeks.
Under Sec. 440.14, Florida Statutes 1953, and F.S.A., Workmen's Compensation Law, the average weekly wages of an injured workmen form the basis for calculation of the compensation to which he is entitled. This general rule is subject to a provision in paragraph (2) of the section that in the event the injured employee shall not have worked at his job 'substantially' the whole period 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 determining the amount of compensation.
Inasmuch as Aaron Pittman had worked for only four weeks, at an hourly rate of $3, it was necessary to resort to the record of another employee, engaged in similar work for a period of 13 weeks, in order to determine the claimant's average weekly wage. The only fellow-worker who had done similar work for approximately that length of time had earned an average of $98.08 a week.
While the claimant was temporarily totally disabled, he was entitled to $35 per week and this was paid by the carrier with protest.
Later the claimant returned to work on a part-time basis at a wage of $3 an hour but without assurance of the number of hours or days he would be kept busy. After working for approximately six months, he entered the employment of one Louis Phillips, and a month later he left Phillips and returned to the employ of Joseph Wilkes on the same basis. After another three months passed, the claimant became a fulltime, instead of a part-time, employee of Wilkes. This was 11 June 1955, said to have been the date of maximum recovery.
At the hearing, the deputy commissioner fixed claimant's average weekly wage at $120, $3 an hour for five eight-hour days each week, instead of $98.08, the amount earned weekly by the only co-worker similarly engaged, and the full commission concurred. The larger amount was allowed under a resolution of the full commission, adopted 28 June 1955 defining the word 'substantially' as used in Sec. 440.14(2) supra. In this resolution it was provided that the phrase 'during substantially the whole of thirteen weeks' should be construed to mean 'during not less than 90 per cent of the total customary full-time hours of employment within such period considered as a whole.'
The petitioners challenge the authority to promulgate the rule, and to support their attack they cite our decision in Fournigault v. Jackson Memorial Hospital Standard Acc. Ins. Co., Fla., 87 So.2d 102. True we held in that case that the commission would not by rule or regulation supersede those defined by the statute. The petitioners earnestly contend that the commission, in effect, by the adoption of the rule, substituted an 'arbitrary and inflexible definition for terminology deliberately left [by the legislature] flexible and elastic * * *.'
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...from by the courts except for the most cogent reasons. Green v. Stuckey's of Fanning Springs, Fla.1957, 99 So.2d 867; Wilkes & Pittman v. Pittman, Fla.1957, 92 So.2d 822; Gay v. Canada Dry Bottling Co., Fla.1952, 59 So.2d 788. We feel that we should accept the administrative interpretation ......
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