ROSCOE

v.

S&A HAULING HILLIARD, LLC

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

No. 1D2022-0055

LAMONT ROSCOE,

Appellant,

v. S&A HAULING HILLIARD, LLC,

Appellee.

On appeal from the Office of the Judges of Compensation Claims. William R. Holley, Judge of Compensation Claims.

Date of Accident: January 13, 2020.

August 20, 2025

PER CURIAM.

AFFIRMED.

ROBERTS and LONG, JJ., concur; TANENBAUM, J., dissents with an opinion.

2

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or

9.331.

TANENBAUM, J., dissenting. The Workers’ Compensation Law (“WCL”)¹ provides that an employer will indemnify its employee for an occupationally caused disability once compensability is established, “disability” referring to that employee’s “incapacity . . . to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” See §§ 440.02(13), 440.09(1), 440.15, Fla. Stat. The indemnity amount is calculated using the average weekly wage (“AWW”), a number oftentimes determined utilizing one of three statutorily specified methods, all of which look retrospectively at what previously was paid, either to the claimant or to another employee doing similar work. See § 440.14(1), Fla. Stat. If these methods “cannot reasonably and fairly be applied,” then the judge of compensation claims (“JCC”) must follow a catchall methodology: “the full-time weekly wages of the injured employee,” which the supreme court, decades ago, concluded referred to either the “contract of employment” or “actual earnings,” depending on “the circumstances of each case.” Penuel v. Cent. Crane Serv., 232 So. 2d 739, 742 (Fla. 1970).

This court characterized the approach as a “prospective” determination—an evidence-based prediction of what the employee would have made, looking forward, but for the disabling injury. See Simpkins v. Watson, 397 So. 2d 432, 434 (Fla. 1st DCA 1981) (contrasting “the legislatively prescribed retrospective methods” in paragraphs (1)(a) and (1)(b) of section 440.14, Florida Statutes, with the “prospective earnings” approach mandated by what is now

All statutory references are to the 2020 Florida Statutes unless otherwise specified.

The law, meanwhile, defines “wages” to mean “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury,” but a phrase added in 1993 limits the definition to “include[] only the wages earned and reported for federal income tax purposes on the job where the employee is injured.” § 440.02(28), Fla. Stat. (emphasis supplied); see ch. 93-415, § 1, Laws of Fla. This court later held that the 1993 limitation applied to the AWW methodologies that section 440.14(1) sets out—meaning that compensation not meeting the limited “wages” definition could not “be the basis for calculating” the AWW. Fast Tract Framing, Inc. v. Caraballo, 994 So. 2d 355, 356 (Fla. 1st DCA 2008).

Fast Tract, however, did not address the definitional caveat at the beginning of section 440.02, Florida Statutes—that terms used in chapter 440 will not carry the defined meaning if the “context clearly requires otherwise.” That is, the facts of that case did not require the court to address how the necessarily retrospective nature of the reporting limitation in the section 440.02 definition could apply under the supreme court’s mandated prospective determination when the retrospective methodologies of section 440.14(1)’s paragraphs (a), (b), and (c) do not apply. Though the facts here now do require us to address just that question, the majority—without explanation—chooses not to. The statutory text, as the supreme court construed and applied it in Penuel, necessitates reading Fast Tract’s holding as limited to retrospective AWW determinations that rely on true averaging of past wages paid. The previously paid wages to be averaged under one of these three methodologies can be only those that were reported for tax purposes. But that is not to say the AWW, then, must be zero if none of a claimant’s wages were reported. Even though neither S&A Hauling, LLC, nor Lamont Roscoe reported his pay for income tax purposes, the JCC in this case still had a duty to determine a fair and reasonable AWW based on what Roscoe would have earned because Roscoe presented evidence

There is no dispute that no one—not Roscoe and not S&A—reported the pay for income tax purposes.2

2 While it also was undisputed that Roscoe did not pay taxes on this income, chapter 440 nowhere mentions payment of taxes as a condition precedent for receipt of indemnity. This fact, then, is wholly irrelevant to the AWW determination. The required contingency is either the employer’s or employee’s reporting the income for tax purposes. The participial phrase beginning with “reported” (highlighted in the quotation above) modifies “wages,” but it does not contain a modifying prepositional phrase that tells us who must do the reporting (something like, “reported by ___”) or to whom or by what method (something like, “reported to ___” or “reported on Form ___”).

What is known is that there must be some reporting done “for federal income tax purposes.” § 440.02(28), Fla. Stat. (emphasis supplied).

The Internal Revenue Code is filled with income reporting requirements—some imposed on employers, some on employees. There are a host of forms to be used as part of that reporting. See, e.g., 26 U.S.C. §§ 6011, 6012, 6041, 6053. The takeaway here is that whether an employee fails to pay income tax is beside the point regarding calculation of the

See § 440.15(2), (4), Fla. Stat. (2019).

Even though Roscoe and S&A had agreed he would be treated as an independent contractor, S&A accepted the accident as compensable and paid for Roscoe’s medical care. In doing so, S&A accepted Roscoe as its employee and waived the statutory exception set out for independent contractors. See § 440.02(15)(a), Fla. Stat. (defining “employee” as “any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors”); cf. id. (15)(d)1. (excluding “independent contractor” from definition of “employee”).

S&A, in turn, had an obligation to Roscoe to “pay compensation or furnish benefits required by [chapter 440],” having acknowledged that Roscoe “suffer[ed] an accidental compensable injury [] arising out of work performed in the course and the scope of employment.” § 440.09(1), Fla. Stat. S&A nevertheless disputed Roscoe’s entitlement to indemnity on several grounds, all but one of which the JCC rejected in his FCO. Based on the evidence presented, the JCC found that Roscoe “earned $910 and $1,190,” respectively, for each of the two weeks he worked—thirteen loads the first week, seventeen loads the second, at $70 per load. The JCC also determined there were no similar employees. Finding there to be sufficient medical and other evidence to establish that Roscoe’s compensable workplace injury resulted in wage loss, the JCC concluded Roscoe demonstrated he would be entitled to TPD indemnity benefits and, had Roscoe “filed/paid taxes on the compensation,” the AWW (following paragraph (1)(d)) would have been $1,050—which the JCC

AWW. The statutory definition of “wage” focuses on reporting of the income via the processes set out in federal law.

The WCL requires that a money allowance be paid to Roscoe to compensate him for any loss tied to that incapacity. See § 440.15, Fla. Stat. (“Compensation for disability shall be paid to the employee. . . .” (emphasis supplied)); see also § 440.02(7), Fla. Stat. (defining “compensation” as a “money allowance payable to an employee . . . as provided for in this chapter”).

The only limitation specified for this mandate is set out in section 440.12(2), Florida Statutes, a provision that sets both a minimum and a maximum amount for the allowance. See

3 S&A does not challenge these determinations via a crossappeal.⁴ The JCC used the wrong terminology here. As mentioned in the margin earlier, whether an employee pays taxes on his income from the employer is irrelevant. It will be assumed the JCC concluded there were no “wages” because the income was not reported.

Having determined that Roscoe suffered a TPD, the JCC had a “duty [] to reasonably and fairly determine [an] average weekly wage” to be used for calculating an indemnity benefit. Orange-Co of Fla. v. Waldrop, 454 So. 2d 724, 725 (Fla. 1st DCA 1984).

Section 440.14(1) sets out four alternative methods to calculate AWW. The first three methods are retrospective—requiring use of “total amount of wages earned” (n.b.—past tense) during a specified time period (e.g., “13 weeks,” “52 weeks,” or a “calendar year”) “immediately preceding the accident.” § 440.14(1)(a)–(c), Fla. Stat. (emphases supplied).

These retrospective methodologies involve true averaging of past wages—taking “the total amount of wages earned” over the look-back period and dividing it by the amount of time in that period (usually a number of weeks) to produce a weekly rate of pay. If, however, none of these methods can “reasonably and fairly be applied,” then “the full-time weekly wages of the injured employee shall be used.” Id. (1)(d).

The supreme court construed paragraph (1)(d) to give a compensation judge the flexibility— when the other methods did not apply—to figure out a reasonable and fair way to calculate AWW, one that projects what the employee likely would have earned going forward, but for the injury, “according to the circumstances of each case” as “shown by competent substantial evidence.” Penuel, 232 So. 2d at 741–42 (considering all remuneration the employer “contemplated” paying the employee, remuneration that included both “the agreed wage rate” and anticipated “additional income”); see also Mayflower Corp. v. Davis, 655 So. 2d 1134, 1136 (Fla. 1st DCA 1994) (observing that the JCC has discretion to use “creative methods of determining the AWW [] tailored to fit the characteristics of a specific situation,” provided the method has support in the law).

A JCC can determine this “full-time weekly wage” (to be used, in turn, as the AWW) by looking either to the “contract of employment” or the employee’s “actual earnings,” as the casespecific circumstances present themselves. Penuel, 232 So. 2d at 742–43.

Paragraph (1)(d), at all events, is a failsafe to ensure there is some means to calculate the AWW and produce an indemnity amount that is not zero when the employee has been found to be disabled because of a work-caused injury. As this court observed, when the specified “methods of computing full-time average weekly wage are inapplicable,” the AWW “must be determined prospectively by using either the contract of employment or the claimant’s actual earnings, according to the circumstances of the case.” Bruck v. Glen Johnson, Inc., 418 So. 2d 1209, 1211 (Fla. 1st DCA 1982) (emphasis supplied).

Indeed, this court later recognized 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

Still, the claimant has the burden “to produce evidence of the correct AWW.” Id. at 1268.

To satisfy this burden, the claimant could bring forth evidence showing the contracted pay rate and number of hours to be worked per week; or, absent that evidence, the amount the claimant was actually paid just before the accident. Cf. Bruck, 418 So. 2d at 1211 (holding that the deputy commissioner erred when, absent an employment contract, he rejected “uncontroverted pay records” that showed how many paid hours the claimant worked “in the three days immediately preceding his accident,” a sum that could be used to calculate “a projected total” of paid hours constituting a “work week”); Waldrop, 454 So. 2d at 725 (requiring, when section 440.14(1)(d) applies but the employment contract does not specify the number of hours in a work week, that the “full-time weekly wage[]” be “determined using [] actual earnings as set out in the wage statement . . . admitted into evidence without objection”); Newell v. Seaboard Contractors, 473 So. 2d 787, 788 (Fla. 1st DCA 1985) (requiring new AWW determination under section 440.14(1)(d) “based on his wages under his new contract for hire, as testified to by claimant” regarding his pay rate and hours-perweek he worked “at the time of the accident” when “actual earnings were not proved” otherwise).

Because paragraph (1)(d) allows a JCC the flexibility to “reasonably and fairly” calculate some amount of indemnity allowance (as the JCC must if there is evidence available from which to extrapolate a prospective number) when the other methodologies fail to produce such a determination; it would make no sense nevertheless to cut off completely an employee’s

After all, the definition’s limitation implies only retrospective application—to income “earned and reported,” both these quoted verbals being in the past tense and referring to completed action, not anticipated action. I fail to see a textual basis for applying the 1993 reporting requirement—added to the meaning of “wages” set out in the WCL’s general definitions section—to override the Legislature’s explicit policy in sections 440.09, 440.14, and 440.15, Florida Statutes. The Legislature expressly identifies but one limitation on the determination methodologies it listed in section 440.14: section 440.12(2), which notably requires a minimum AWW. The statutory policy plainly favors at least some indemnity allowance for workcaused lost wages. It requires, as both the supreme court and this court have construed it, that the JCC find some reasonable and fair way of calculating that number, provided there is some evidence presented to support the projection, as the JCC did in this case. When such competent evidence is presented, the AWW cannot be zero. * * *

Jonathan B. Israel of Rudolph, Israel, Tucker and Ellis, P.A., Jacksonville, for Appellant.

Carla C. Wester of McGrath Gibson, LLC, Jacksonville, for Appellee.