LIL' CHAMP FOOD STORES AND COMMERCIAL RISK MANAGEMENT, APPELLANTS,
v.
MELONIE ROSS, APPELLEE
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The Florida District Court of Appeal reversed a workers' compensation judge's determination of a claimant's average weekly wage (AWW) and the offset of permanent total disability benefits by social security benefits. The court found the judge failed to properly apply the statutory hierarchy for calculating AWW and that the offset calculation must be redone once AWW is correctly determined.
The court reversed and remanded, holding that the judge of compensation claims must properly apply the statutory hierarchy: first attempting to calculate AWW under section 440.14(l)(a) based on the claimant's actual hours worked; only if that is inapplicable should section 440.14(l)(b) be used with a truly similar employee; and only if neither applies should section 440.14(l)(d) be used. Once AWW is correctly determined, the offset must be recalculated according to the formula in Hunt v. D.M. Stratton, Jr.
[1] A workers' compensation claimant's average weekly wage calculation must be based on the statutory provisions for substantially the whole of thirteen weeks preceding the i…
[2] A "similar employee" for purposes of calculating average weekly wage must work the same or substantially similar hours as the injured claimant.
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 forty hours per week was the customary number of hours for the job, claimant worked 91.85% of the customary hours during the 13 week period prior to injury.”
Demonstrates that section 440.14(l)(a) may have been the proper method for calculating AWW based on the claimant's actual work history, which the judge failed to properly apply.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMelonie Ross sought a determination of her correct average weekly wage for workers' compensation purposes. The parties stipulated that Ross had not wo…
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PER CURIAM.
The employer and carrier (E/C) seek review of a workers’ compensation order which determined the claimant’s average weekly wage (AWW) and ordered reimbursement of amounts taken as an offset of the permanent total, disability (PTD) benefits paid based upon the federal social security disability benefits claimant was receiving. We reverse.
The claimant sought a determination of the correct AWW. The parties stipulated, and the judge of compensation claims (JCC) found, that the claimant had not worked substantially the whole of thirteen weeks immediately preceding the injury pursuant to section 440.14(l)(a), Florida Statutes. It appears from the testimony and evidence presented, however, that section 440.14(l)(a) is applicable. The employer’s workers’ compensation manager testified that claimant worked a four-five day schedule each week. Claimant also testified that she worked eight hours per day, and worked four or five days per week. If forty hours per week was the customary number of hours for the job, claimant worked 91.85% of the customary hours during the 13 week period prior to injury.
The E/C had calculated claimant’s AWW based on the wages of a similar employee under section 440.14(l)(b). The E/C used the thirteen-week wage statement of Ms. Mason, who earned $3.60 per hour for three weeks and $3.75 per hour for ten weeks. Ms. Mason worked an average of 43.94 hours per week during the relevant period. The JCC stated in his order that the uncontro-verted testimony of the parties was that Ms. Mason and the claimant worked the same or similar hours. The employer’s workers’ compensation manager, however, testified that Ms. Mason worked a five-six day schedule, while claimant worked a four-five day schedule, so that there would be one day difference between the two employees each week. Additionally, the claimant earned $4.25 per hour at the time of injury. Accordingly, Ms. Mason was not a similar employee for purposes of section 440.14(l)(b).
The JCC calculated claimant’s AWW using 43.94 hours per week, based on the hours of the “similar” employee, and the claimant’s actual rate of pay. It is not clear from the order whether the JCC calculated AWW using the wages of a similar employee pursuant to (l)(b) or made the calculation pursuant to section 440.14(l)(d).
We reverse the determination of average weekly wage. On remand, the JCC should either apply section 440.14(l)(a) or make findings regarding why (l)(a) is not applicable. If it is determined that (l)(a) is not applicable, the E/C should be given an opportunity to present evidence regarding the wages of a similar employee. If neither (l)(a) nor (l)(b) can be applied, the JCC should then determine AWW pursuant to (l)(d).
The JCC found that the social security offset taken by the E/C was incorrect, based on the E/C’s improper calculation of AWW and the fact that the E/C’s calculation did not account for supplemental benefits. The JCC also noted that the E/C presented no testimony or evidence to indicate that they had obtained the information necessary from the Social Security Administration to determine the appropriate offset. Accordingly, the E/C was ordered to reimburse claimant the amounts taken as an offset.
We agree with the E/C that all necessary information from the Social Security Administration had been acquired. Once AWW is determined on remand, the correct offset shall be calculated in accordance with the formula set forth in Hunt v. D.M. Stratton, Jr., 677 So. 2d 64 (Fla. 1st DCA 1996), and the E/C ordered to reimburse to claimant any difference between the correct offset amount and the amount actually taken.
REVERSED and REMANDED.
BARFIELD, C.J., and DAVIS and BENTON, JJ., concur.
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Cited By
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Sonny Glassbrenner, Inc. v. Dowling, 913 So. 2d 82 (Fla. 1st DCA 2005)…CC erred in applying subsection (l)(b), the similar employee provision, because the employee chosen as the similar employee earned $10.50 per hour while claimant earned only $10 per hour at the time of his injury. See Lil' Champ Food Stores v. Ross, 682 So. 2d 649, 650 (Fla. 1st DCA 1996) (holding that the JCC erred in calculating the claimant’s AWW based upon the similar employee provision because, while the claimant earned $4.35 per hour and worked a four-five day schedule, the “similar” employee earned $3.…
Authorities Cited
- Althan W. Hunt v. D.M. Stratton, Jr., 677 So. 2d 64 (Fla. 1st DCA 1996)