STATE OF FLORIDA/DEPARTMENT OF AGRICULTURE AND FLORIDA DEPARTMENT OF INSURANCE/BUREAU OF STATE EMPLOYEES' WORKERS' COMPENSATION CLAIMS, APPELLANTS,
v.
DONALD L. ALLEN, APPELLEE
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The Florida First District Court of Appeal reversed a workers' compensation judge's decision that calculated average weekly wage (AWW) based on the higher wage from a first accident when a claimant suffered a second compensable accident with the same employer. The court found the judge misapplied precedent by failing to recognize the claimant had not suffered diminished earning capacity from the first injury.
The determination of average weekly wage was reversed and remanded because the judge misconstrued Pinellas County School Board v. Higgins by applying it to a claimant who, unlike the claimant in that case, presented no evidence of diminished earning capacity or reduced wages due to the first injury.
[1] When an employee suffers successive compensable accidents with the same employer, and the second accident exacerbates the injury from the first, the average weekly wage f…
[2] A claimant must present evidence that a prior injury precluded them from performing regular job duties and resulted in a lower-paying job before a subsequent accident to…
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Join FLexlaw to unlock all legal intelligence“the claimant presented no evidence that he returned to work at a lower paying job prior to the second accident because his injury from the first accident precluded his performing his regular job duties”
Establishes the critical factual distinction between this case and Pinellas County School Board
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Join FLexlaw to unlock all legal intelligenceA claimant was injured in successive compensable accidents while working for the same employer, with the second accident exacerbating the first injury…
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BARFIELD, Chief Judge.
In this workers’ compensation order, the judge of compensation claims (JCC) apparently misconstrued Pinellas County School Board v. Higgins, 597 So. 2d 355 (Fla. 1st DCA 1992). In the case at issue, the claimant was injured in successive compensable accidents while working for the same employer and the second accident exacerbated the injury from the first accident. The employer and carrier (E/C) calculated the compensation benefits based on the claimant’s average weekly wage (AWW) at the time of the second accident, which was a lower figure than the AWW at the time of the first accident. The JCC cited the Pinellas County School Board decision as authority for using the higher AWW from the first accident.
However, unlike the claimant in that case, this claimant presented no evidence that he returned to work at a lower paying job prior to the second accident because his injury from the first accident precluded his performing his regular job duties. In this case, the record indicates that after the first accident and before the second accident, the claimant continued to work at his regular duties and continued to earn a significant amount of overtime pay. There is some indi cation that his base salary actually increased between the two accidents. No evidence was presented that his ability to perform his regular job duties was affected by the first injury, notwithstanding his testimony that he was in “constant pain.” Unlike the claimant in the Pinellas County School Board decision, there is no evidence that this claimant suffered any diminished earning capacity due to the first injury.
The determination of AWW is therefore REVERSED and the case is REMANDED to the JCC for further proceedings consistent with this opinion.
ERVIN and BENTON, JJ., concur.