ADART SOUTH POLYBAG MFG., INC. AND SENTRY INSURANCE COMPANY, APPELLANTS,
v.
GERARD GOLDBERG, APPELLEE

Fla. 1st DCA | 1986-10-02
No. BJ-469
SHIVERS, J., concurs., THOMPSON, J., specially concurring.
495 So. 2d 826 Florida District Court of Appeal, First District (1986) Negative Treatment
Cited by 22 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In a workers' compensation case, the Florida First District Court of Appeal affirmed a deputy commissioner's award of wage loss benefits and determination that the claimant's average weekly wage (AWW) was $350 per week, despite the claimant never actually receiving that amount prior to his industrial accident. The court held that under Florida's AWW statute, a contract of employment can establish the proper wage calculation even when actual earnings differ.


Holding

The court affirmed both findings. First, although a job search is generally required, the claimant satisfied his burden by continuing to operate his business at full capacity despite diminished work capacity, making it improper to require him to seek employment outside his business. Second, under Florida Statutes Section 440.14(l)(d), when the 13-week method is inapplicable, AWW may be calculated using the contract of employment rather than actual earnings received, and the deputy properly used the contractual agreement showing $350 per week as the basis for calculating AWW.


Headnotes

[1] A claimant may be entitled to wage loss benefits even in the absence of a formal work search if obtaining and performing a full-time job is deemed the equivalent of a job…

[2] A claimant has borne the initial burden of showing entitlement to wage loss benefits when the employer fails to present evidence that the claimant voluntarily limited the…

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Key Quotes

“Although a job search is generally required, Vantage Pointe v. Sowers, 463 So. 2d 396, 398 (Fla. 1st DCA 1985), obtaining and performing a full-time job has been held to be the equivalent of a job search.”

Establishes that continuous operation of one's business satisfies the job search requirement in wage loss cases.

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Facts & Procedural History

Claimant Gerard Goldberg and his brother owned a business that commenced in July 1983. They agreed that Goldberg would receive $350 per week as monies…

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

Adart appeals from an order of the deputy finding claimant’s average weekly wage (AWW) to be $350 per week, awarding wage loss benefits from November 1, 1984 through August 31, 1985, and awarding medical treatment, interest, penalties, and costs. Adart raises two issues on appeal: (1) No competent, substantial evidence supports the award of wage loss benefits, and (2) the deputy erred, as a matter of law, in finding claimant’s AWW to be $350 per week. We affirm.

As to the first issue, the e/c argues that in the absence of a work search, there can be no proof that claimant sustained any wage loss. Although we agree that there is no evidence of a work search, the absence of same, as applied to the facts at bar, does not require reversal. Prior to his industrial accident of September 27, 1983, claimant had been devoting approximately eight to twelve hours a day to the business, of which a substantial amount related to door-to-door soliciting. Following his later return to work, after the industrial accident, claimant could only work a few hours during the day, because he was unable to stand up or sit down for long periods of time.

Although a job search is generally required, Vantage Pointe v. Sowers, 463 So. 2d 396, 398 (Fla. 1st DCA 1985), obtaining and performing a full-time job has been held to be the equivalent of a job search. See Stahl v. Southeastern X-Ray, 447 So. 2d 399, 401, n. 4 (Fla. 1st DCA 1984). Here it would be improper to require claimant to perform a job search and look for work outside of claimant’s business, which required his full time efforts — albeit at a diminished capacity — to keep going.

Accordingly, claimant has borne his initial burden of showing his entitlement to wage loss, and, as the employer has otherwise failed to present evidence disclosing that claimant voluntarily limited his income, we affirm as to the first issue raised. See Tampa Electric Co. v. Bradshaw, 477 So. 2d 624, 629 (Fla. 1st DCA 1985); D.L. Amici Co. v. Jackson, 444 So. 2d 978 (Fla. 1st DCA 1983), rev. denied, 451 So. 2d 848 (Fla.1984).

As to the second point, that the deputy erred in finding the claimant’s AWW to be $350 per week, we also affirm. There is competent, substantial evidence to support the deputy commissioner’s finding that claimant’s AWW was $350 per week, based on the testimony of claimant and his accountant, relating to claimant’s contract of employment. Claimant stated that he and his brother had agreed that he would receive $350 per week, as monies became available.

In September 1983, shortly before his accident, claimant drew $2100 — the amount representing gross sales during the month of September — which was his first draw since the business commenced in July 1983. Claimant’s accountant stated that the $2100-draw was for six weeks’ work, or $350 per week, pursuant to the contractual agreement, and that when claimant recovered sufficiently to return to work, he only received thereafter $150 a week, because the business was not successful enough for him to draw any greater amount.

We affirm as to this point as well. Where the “13-week” and “similar employee” methods of computing full-time AWW are inapplicable, an employee’s wages should be calculated according to the full-time weekly wages method, pursuant to Section 440.14(l)(d), Florida Statutes. When applying subsection (l)(d), full-time wages must be determined prospectively, by using either the contract of employment, or claimant’s actual earnings. Newell v. Seaboard Contractors, 473 So. 2d 787 (Fla. 1st DCA 1985); Bruck v. Glen Johnson, Inc., 418 So. 2d 1209 (Fla. 1st DCA 1982).

In the case at bar, the 13-week provision is inapplicable, since claimant did not earn 13 weeks of pay prior to his accident, but only took out, as stated by claimant, a “token” of what his salary was due. Presumably, although claimant never actually received $350 per week, he quite conceivably could have, but for the accident that occurred in September 1983, which kept him out of work until March 1984, when at such time he needed to recoup his fixed business expenses and could only work part-time.

The deputy’s liberal interpretation of the AWW statute is in accord with the views of Professor Larson, who states that the entire objective of wage calculation is to arrive at a fair approximation of claimant’s probable future earning capacity. In other words, the proper basis for the calculation is not what claimant was in fact paid, but what he was entitled to earn. This in turn would seem to mean what he could have compelled his employer to pay him if he had exercised his legal rights. 2 A. Larson Workmen’s Compensation Law (MB) § 60.11(d) at 10-560 (1981).

Cf. Farmer’s Gin Co., Inc. v. Rose, 374 So. 2d 351 (Ala.Civ.App.1979) (even though claimant did not actually receive contractual agreed-upon salary of $200 per week, the contractual arrangement was proper evidence of average weekly wage, in that the crucial factor was the obligation incurred by the employer, as evidenced by the contract to pay him $200 per week).

We apply the same rationale to the facts at bar. There was evidence from which the deputy could infer that the business, which claimant and his brother solely owned, was legally obligated to pay claimant $350 per week. That claimant did not actually receive such amount is immaterial under section 440.14(l)(d), in that the statute authorizes, as an alternative means of calculating an employee’s AWW, the contract of employment. As the deputy’s order is supported by both the law and the evidence, it is

AFFIRMED.

SHIVERS, J., concurs.

THOMPSON, J., specially concurring.

Concurrence
THOMPSON, Judge,

THOMPSON, Judge,

specially concurring.

Based on the evidence before the deputy commissioner (deputy), I would not have found the average weekly wage of the claimant to be $350.00. The evidence on this issue was very weak and was mostly hearsay. Nevertheless, there was some, albeit very little, competent substantial evidence to support the deputy’s finding. Although I disagree with the deputy, I will not attempt to substitute my judgment for his as that is not this court's function on appeal.


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Citator

Cited By (12 total)

  • Rios v. Fred Teitelbaum Constr. & U.S. Fid. & Guar. Co., 522 So. 2d 1015 (Fla. 1st DCA 1988)
    …ct, this court has held that in given circumstances it would be improper to require a claimant to look for work outside his own business, when that business required his full-time efforts to keep it going. Adart South Polybag Mfg., Inc. v. Goldberg, 495 So. 2d 826, 827 (Fla. 1st DCA 1986). Furthermore, wage loss benefits should not be denied merely because the wage loss occurs, as in the instant case, after a period of successful post-injury employment. Mathis v. Lewis Bear Co., 511 So. 2d 663 (Fla. 1st DCA 1…
  • The W. Union Tel. Co. v. Perri, 508 So. 2d 765 (Fla. 1st DCA 1987)
    …while a work search is generally required, full-time employment, even in a self-owned business, may in appropriate circumstances obviate the need for further work search during such employment. See Adart South Polybag Manufacturing Inc. v. Goldberg, 495 So. 2d 826 (Fla. 1st DCA 1986). Diminished earnings from post-injury good faith work as a realtor has been approved as a basis for wage loss benefits. See National Distillers v. Guthrie, 443 So. 2d 354 (Fla. 1st DCA 1984). In the present case the award of wag…
  • I.A.T.S.E. & Claims Ctr. v. Nesselroad, 534 So. 2d 709 (Fla. 1st DCA 1988)
    …Company, 507 So. 2d 138 (Fla. 1st DCA 1987), Stahl v. Southeastern X-Ray Company, 447 So. 2d 399 (Fla. 1st DCA 1984), Western Union Telegraph Company v. Perri, 508 So. 2d 765 (Fla. 1st DCA 1987), Adart South Polybag Manufacturing, Inc. v. Goldberg, 495 So. 2d 826 (Fla. 1st DCA 1986), but the same does not apply to part-time employment. In Vantage Pointe, supra, this court held that where a claimant reached maximum medical improvement with permanent impairment to one arm and performed no job search, his accep…

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