K-MART AND KM ADMINISTRATIVE SERVICES, APPELLANTS,
v.
RONNIE CECIL JONES, APPELLEE
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K-Mart and its workers' compensation carrier appealed a wage-loss benefits award to an injured employee who worked part-time at another employer. The court affirmed the deputy's decision to combine wages from both employers in calculating average weekly wage and to credit post-accident earnings, while modifying the order to remove a premature bad faith finding and an unsupported award period.
The court held that combining wages from both employment sources in calculating average weekly wage is proper under Florida law, and that crediting post-accident earnings from Sears against the wage-loss calculation was correct. The court modified the order to remove the bad faith finding as premature and to delete an unsupported award period, but affirmed the wage-loss benefits for the supported period.
[1] An employee's average weekly wage for workers' compensation purposes may include wages from multiple concurrent employments.
[2] In calculating wage loss benefits, an employer is entitled to credit for the claimant's post-accident earnings from other employment.
Previewing 2 of 4 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“The deputy's ruling combining wages from both sources in determining claimant's average weekly wage is entirely consistent with the supreme court's construction of section 440.14(3), Florida Statutes (1969) [now § 440.14(l)(d), Fla.Stat. (1983)], in American Uniform & Rental Service v. Trainer, 262 So.2d 193 (Fla. 1972).”
Establishes the legal basis for combining wages from multiple employment sources in calculating average weekly wage under Florida workers' compensation law.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceClaimant was injured on November 20, 1984, while working full-time at K-Mart. He also worked part-time as a salesman at Sears. The deputy calculated c…
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ZEHMER, Judge.
The employer and carrier appeal a workers’ compensation order awarding wage-loss benefits to claimant. We modify the order and affirm.
Claimant was injured November 20, 1984, in the course of his employment at K-Mart. Although a full-time employee with K-Mart, claimant also worked part-time as a salesman at Sears. In calculating claimant’s average weekly wage, the deputy combined claimant’s wages from the full-time job at K-Mart with wages from his part-time employment at Sears. In determining the amount of wage loss due to the injury, the deputy gave credit for claimant’s post-accident earnings from Sears by subtracting that amount from his average weekly wage. The employer and carrier contend this was error. We disagree. The deputy’s ruling combining wages from both sources in determining claimant’s average weekly wage is entirely consistent with the supreme court’s construction of section 440.14(3), Florida Statutes (1969) [now § 440.14(l)(d), Fla.Stat. (1983)], in American Uniform & Rental Service v. Trainer, 262 So. 2d 193 (Fla. 1972). Moreover, the deputy gave proper credit for subsequent wages earned at Sears, which increased substantially after claimant was unable to return to the more demanding work at K-Mart.
Claimant concedes that the portion of the deputy’s order determining the employer and carrier acted in bad faith was premature. Accordingly, the appealed order is modified to delete all references to a find-mg of bad faith, and that issue shall be subject to determination in a separate proceeding. § 440.34(3)(b), Fla.Stat. (1983).
Claimant also concedes that the deputy erred in awarding wage-loss benefits from November 23, 1985, through November 30, 1985, as beyond the claim and evidence presented at the hearing; therefore, the appealed order is modified to delete the award of wage loss for that period. We find, however, that the record contains competent, substantial evidence to support the deputy’s decision to award wage loss from December 18, 1984, through November 23, 1985, and, accordingly, affirm that issue.
AFFIRMED as modified.
ERVIN and SHIVERS, JJ., concur.
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Vegas v. Globe Sec. & CIGNA, 627 So. 2d 76 (Fla. 1st DCA 1993)…served that the 1990 amendment to section 440.-02(24) acted “to depart from the existing law regarding concurrent earnings as delineated in cases such as American Uniform and Rental Service v. Trainer, 262 So. 2d 193 (Fla.1972), and K-Mart v. Jones, 502 So. 2d 495 (Fla. 1st DCA 1987).” 616 So. 2d at 62. Nothing on the face of Ciando, however, indicates that the court was in that case urged to conclude that section 440.14(1)(a) should control the computation of average weekly wages.9 Moreover, and in retrospec…
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Wal-Mart Stores & Claims Mgmt., Inc. v. Campbell, 694 So. 2d 136 (Fla. 1st DCA 1997)…me weekly wages of the injured employee” pursuant to section 440.14(3), now section 440.14(l)(d), based on the wages he was actually earning at the time he was injured. A comparison of this court’s decisions in Quality Painting and K-Mart v. Jones, 502 So. 2d 495 (Fla. 1st DCA 1987), reveals a similar confusion regarding which subsection of the statute should be applied to attain the “fair and reasonable” AWW intended by the [*142] legislature in circumstances similar to those of the instant case. The latter…
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Ciancio v. N. Dunedin Baptist Church & Claims Ctr., 616 So. 2d 61 (Fla. 1st DCA 1993)…01, Laws of Florida, which amended section 440.-02(24), so as to depart from the existing law regarding concurrent earnings as delineated in cases such as American Uniform and Rental Service v. Trainer, 262 So. 2d 193 (Fla.1972) and K-Mart v. Jones, 502 So. 2d 495 (Fla. 1st DCA 1987). Because the amended statute permits concurrent earnings to be included in a volunteer firefighter’s wages, while prohibiting such earnings from being included in other injured workers’ wages, the claimant contends that the amend…
Authorities Cited
- Am. Unif. & Rental Serv. & Shelby Mut. Ins. Co. v. Verle Trainer & The Indus. Relations Comm'n, 262 So. 2d 193 (Fla. 1972)