REX KARNES, APPELLANT,
v.
CITY OF BOCA RATON, APPELLEE
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Karnes appeals a workers' compensation order denying recalculation of his average weekly wage (AWW) benefit based on current wages rather than 1989 injury-date wages. The court affirms, holding that in non-occupational disease cases, AWW must be calculated from wages at the time of original injury, not the time of subsequent disability.
In non-occupational disease cases, the Workers' Compensation Act requires AWW to be calculated from wages 'at the time of the injury' and is not subject to periodic recalculation. Occupational disease cases, by contrast, require calculation from the onset of disability.
[1] In non-occupational disease cases, the average weekly wage (AWW) award must be determined from an employee's wages for the thirteen weeks prior to the time of injury.
[2] The average weekly wage (AWW) in non-occupational disease cases is not subject to periodic adjustment based on subsequent wage increases.
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“It is well settled that, in non-occupational disease cases, the Workers' Compensation Act requires wages 'at the time of the injury' to be used in calculating AWW.”
Establishes the controlling legal principle that non-occupational disease AWW calculations are fixed at injury date
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Join FLexlaw to unlock all legal intelligenceKarnes sustained a non-occupational disease injury in a compensable accident in 1989. A 1993 merit order awarded temporary total disability benefits b…
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HAWKES, J.
Rex Karnes (Claimant) appeals the JCC’s order finding, in pertinent part, that in a non-occupational disease case, an average weekly wage (AWW) award must be determined from an employee’s wages for the thirteen weeks prior to the time of injury and is not subject to periodic adjustment. We affirm.
Claimant was involved in a compensable accident in 1989, where he sustained a nonoccupational disease injury. In 1993, a merit order was entered awarding Claimant temporary total disability benefits based on an AWW calculated from Claimant’s 1989 wages.
Although Claimant continued to work for the same employer, and continued to receive pay increases, he also continued to suffer from medical problems as a result of his injury. During several extended time periods between 1998 and 2001, he was unable to work full-time, and qualified for benefits. In September 2001, Claimant requested a recalculation of his AWW benefits.
Claimant argued he was entitled to a recalculated AWW based on his most recent 13 weeks of compensation prior to his current disability. Claimant based his argument on this court’s decision in Hillsborough County School Bd. v. Christopher, 790 So. 2d 1267 (Fla. 1st DCA 2001). Claimant maintained that Christopher mandated that AWW benefits be calculated from the time of disability, not the time of the original injury. Claimant misconstrues Christopher. It is well settled that, in non-occupational disease cases, the Workers’ Compensation Act requires wages “at the time of the injury” to be used in calculating AWW.1 Conversely, cases in the nature of an occupational disease, such as Christopher, hold that AWW must be calculated from the onset of an employee’s disability.2 Thus, the JCC properly construed the statute, and the order is AFFIRMED.
VAN NORTWICK and PADOVANO, JJ., concur. . See § 440.14(1), Fla. Stat. (1989); see also Waymire v. Fla. Indus. Comm’n., 174 So. 2d 404 (Fla.1965); Jackson County Hosp. Corp. v. Aldrich, 835 So. 2d 318 (Fla. 1st DCA 2002).
. See Michels v. Orange County Fire/Rescue, 819 So. 2d 158 (Fla. 1st DCA 2002); see also Cote v. Combustion Eng'g, Inc., 502 So. 2d 500 (Fla. 1st DCA 1987); Reynolds v. Neisner Bros., Inc., 436 So. 2d 1070 (Fla. 1st DCA 1983).
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Flowers v. Acousti Eng'g Co. OF Fla. & Commercial Risk Mgmt., Inc., 888 So. 2d 735 (Fla. 1st DCA 2004)…dent rather than the 2001 date when he was determined to be permanently, totally disabled — as the proper basis for computing compensation. See James v. Armstrong World Indus., Inc., 864 So. 2d 1132 (Fla. 1st DCA 2003); Karnes v. City of Boca Raton, 858 So. 2d 1264 (Fla. 1st DCA 2003). AFFIRMED. BROWNING, LEWIS and POLSTON, JJ., concur.…
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Rubin Rotstein v. Publix Supermarkets, Inc., 933 So. 2d 1256 (Fla. 1st DCA 2006)…njury, not the date when claimant’s employment terminated. See, e.g., Flowers v. Acousti Eng’g Co. of Fla., 888 So. 2d 735 (Fla. 1st DCA 2004); James v. Armstrong World Indus., Inc., 864 So. 2d 1132 (Fla. 1st DCA 2003); Karnes v. City of Boca Raton, 858 So. 2d 1264 (Fla. 1st DCA 2003). In each of the cited cases, this court directed the claimant’s AWW to be ascertained based on the wages earned the 13 weeks preceding injury, rather than on wages earned when the respective claimants were determined to be PTD an…1 / 2
Authorities Cited
- Jackson Cnty. Hosp. Corp. v. Aldrich, 835 So. 2d 318 (Fla. 1st DCA 2002)
- Valletto v. Dupree, 436 So. 2d 1070 (Fla. 1st DCA 1983)
- Michels v. Orange Cnty. Fire/Rescue & Johns E. Co., Inc., 819 So. 2d 158 (Fla. 1st DCA 2002)
- Ray v. Waymire, 174 So. 2d 404 (Fla. 1965)
- Cote v. Combustion Eng'g, Inc., 502 So. 2d 500 (Fla. 1st DCA 1987)
- Hillsborough Cnty. Sch. Bd. & RSKCo v. Christopher, 790 So. 2d 1267 (Fla. 1st DCA 2001)