AMF POWERBOAT DIVISION AND INSURANCE COMPANY OF NORTH AMERICA, APPELLANTS,
v.
GAYLE GILCHRIST, APPELLEE
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In this workers' compensation appeal, the court reversed the deputy commissioner's determination of the claimant's average weekly wage, finding that the selected "similar employee" was not truly comparable because she earned significantly higher wages ($6.05/hour vs. $4.43/hour). The court remanded for recalculation using the claimant's own hourly rate based on a full-time work week.
The court held that the deputy commissioner's selection of the "similar employee" was not based on competent substantial evidence because Cullen's significantly higher wage rate ($6.05 vs. $4.43) made her incomparable. Because no truly similar employee existed in the record, the court held that § 440.14(1)(d) must apply instead, requiring use of the claimant's own full-time weekly wages based on her hourly rate.
[1] An employer's workers' compensation carrier may appeal an order awarding benefits to a claimant.
[2] When determining an injured employee's average weekly wage, the wages of a "similar employee" in the same employment who has worked substantially the whole of the precedi…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the injured employee shall not have 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 [of average weekly wage].”
This statutory language establishes the framework for determining average weekly wage when an employee has not worked the required 13-week period; it is the basis for the "similar employee" analysis.
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Join FLexlaw to unlock all legal intelligenceClaimant had worked for AMF Powerboat Division as a laminator for slightly more than one month, during which she worked only 19 days. She was paid $4.…
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WIGGINTON, Judge.
Employer/carrier appeal from an order of the deputy commissioner awarding claimant temporary total disability benefits, medical treatment and expenses. The compensability of the injury is not at issue. Rather the issue is whether the deputy erred as a matter of law in his finding of a “similar employee,” pursuant to § ,440.14(l)(b), Florida Statutes (1979), in determining claimant’s average weekly wage. Upon reviewing the record, we answer that question in the affirmative.
The record indicates that at the time of the industrial injury, claimant had been employed as a laminator with employer, AMF Powerboat Division, for slightly more than one month. However, during that time, claimant had worked only a total of nineteen days. The record also indicates that claimant was receiving $4.43 per hour and was considered a full-time employee with a forty-hour work week.
In making its determination of claimant’s average weekly wage on which to base an appropriate compensation rate, the deputy commissioner invoked § 440.14(l)(b) which states:
If the injured employee shall not have 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 [of average weekly wage].
After reviewing the submitted wage statements, the deputy chose as a “similar employee” one H. Cullen, also a laminator. However, the record indicates that Ms. Cullen was receiving an hourly wage of $6.05. Indeed, it appears from the wage statements that Ms. Cullen was the second-highest paid laminator for the company at the time of claimant’s industrial accident, there being no similar employee with a wage rate as low as that of claimant.
Accordingly, we hold that the deputy commissioner’s determination of claimant’s average weekly wage based on the wages of a “similar employee” is not based on competent substantial evidence. However, an investigation of the record indicates that there is no “similar employee” on which reasonably or fairly to base a determination of claimant’s average weekly wage. Consequently, it becomes necessary to apply § 440.14(l)(d) which provides in pertinent part:
If any of the foregoing methods cannot reasonably and fairly be applied the full-time weekly wages of the injured employee shall be used ...
The order of the deputy commissioner is therefore reversed, and the case is remanded with instructions to recalculate claimant’s average weekly wage by using her hourly pay rate based on a forty-hour work week.
LARRY G. SMITH and THOMPSON, JJ., concur.
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Carvell v. Caviness Motor Co., 552 So. 2d 250 (Fla. 1st DCA 1989)…me type of work, and one who is working in the same locality, and if possible one who worked in the same crew.” Another factor is whether the supposedly similar employee is paid at the same rate as the claimant. AMF Power Boat Division v. Gilchrist, 409 So. 2d 159 (Fla. 1st DCA 1982). The record reflects that claimant clearly met each of these tests. All of the salesmen were paid at the same commission rate, and claimant worked in the same locality, at the same type of work, with the same sales crew. See also…
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Expicare Nursing Servs. & Johns E. Co., Inc. v. Eudaley, 596 So. 2d 126 (Fla. 1st DCA 1992)…ndicated that claimant was not entitled to insurance because she did not average 32 hours per week. While evidence of payment of the same hourly wage often is a strong indication that employees are “similar,” see AMF Powerboat Division v. Gilchrist, 409 So. 2d 159 (Fla. [*129] 1st DCA 1982), the instant facts demonstrate an exception to that rule because the terms of employment permitted such a wide range in numbers of hours worked during any particular day or week. The JCC did not explain the reason for cho…
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Sonny Glassbrenner, Inc. v. Dowling, 913 So. 2d 82 (Fla. 1st DCA 2005)…ecause, while the claimant earned $4.35 per hour and worked a four-five day schedule, the “similar” employee earned $3.60 per hour for three weeks and $3.75 per hour for ten weeks and worked a five-six day schedule); AMF Powerboat Div. v. Gilchriét, 409 So. 2d 159, 160 (Fla. 1st DCA 1982) (holding that the JCC erred in applying the similar employee provision in calculating the claimant’s AWW because the claimant earned $4.43 per hour with the employer while the “similar” employee earned $6.05 per hour). Cf. T…