Haynes v. Gordon Haynes State Certified General Contractors, Inc.

Citations: 506 So. 2d 471; 12 Fla. L. Weekly 1124; 1987 Fla. App. LEXIS 8039Docket: No. BM-416

Court: District Court of Appeal of Florida; April 30, 1987; Florida; State Appellate Court

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The claimant challenges the deputy commissioner's calculation of his average weekly wage, asserting that the deputy improperly excluded post-accident payments. Haynes, a general contractor and sole officer of Gordon Haynes State Certified General Contractors, Inc., sustained an industrial accident on November 7, 1984. Following his return to work in early 1985, he altered his duties and no longer performed carpentry work, focusing instead on general labor and maintenance tasks. From the accident until August 12, 1985, Haynes received temporary total disability benefits totaling $8,064 and wage loss benefits of $3,168. He subsequently sought temporary partial wage loss benefits and a determination of his average weekly wage.

The employer argued that it had overpaid him based on an inflated average weekly wage of $600. Haynes had received a $10,000 payment in June 1984 for work done prior to the accident and later a $25,000 payment in May 1985, part of which was for carpentry work performed before the accident. He claimed that, without the accident, he would have received this payment sooner. Haynes calculated his average weekly wage based on a rate of $15.00 per hour, asserting that the $600 weekly wage reflected his worth as a carpenter.

The deputy commissioner found that Haynes paid himself $10,000 in the year leading up to the accident and noted that he received no compensation for the 13 weeks before the accident. The $25,000 was categorized as a "bonus," and he began receiving weekly payments of $150-200 starting in August 1985. While Haynes requested that some of the $25,000 be considered as pre-accident earnings, the deputy deemed it speculative to include that amount in the average weekly wage calculation.

The deputy determined that calculating the average weekly wage under statute 440.14(1)(a) was challenging but concluded it was the fairest method available. The average weekly wage was set at $192.31 based on an annual salary of $10,000, resulting in a compensation rate of $128.08. Additionally, the employer/carrier was granted credit for any overpaid benefits and allowed to offset future indemnity benefits. The deputy found that the claimant was capable of earning remuneration equivalent to his average weekly wage and was not entitled to further benefits at that time. 

Case law requires that a claimant employed regularly for the 13 weeks prior to an accident must have their average weekly wage calculated according to 440.14(1)(a). However, rigid application of this statute has led to unusual outcomes when employees are not compensated weekly. The deputy's reliance on this statute was appropriate given the claimant's continuous employment during the relevant period, but there was an error in applying it to the facts. The deputy noted the claimant did not earn any wages in the 15 weeks prior to the accident, which was inconsistent with the claimant's employment value. Claimant's counsel argued for including a $25,000 bonus from 1985 as part of the average weekly wage, but the deputy found it speculative to include such amounts. Ultimately, the deputy's findings were deemed ambiguous and lacking substantial evidence to support the conclusions regarding the claimant's salary and average weekly wage.

No evidence substantiated the claimant’s annual salary of $10,000. The claimant testified that a $10,000 payment in June 1984 was for work performed from January to June 1984, asserting he worked as a carpenter and earned part of a $25,000 total prior to the accident. He stated his average weekly wage was approximately $600, based on an hourly rate of $15. This testimony was deemed non-speculative, allowing consideration of a portion of that amount as income for the critical 13-week period before the accident in calculating the average weekly wage. On remand, it will be essential to ascertain the number of hours or days worked in that timeframe and establish a reasonable hourly or daily wage based on credible evidence of the services rendered. The deputy may gather additional evidence if necessary. The claimant also argued that the deputy erred in denying wage loss benefits from August 12, 1985, to January 31, 1986; granting the employer a set-off on future benefits; and denying costs, penalties, and attorney’s fees. However, these issues are contingent on the average weekly wage determination, which must be reassessed on remand. The decision is reversed and remanded, with judges Ervin and Shivers concurring, noting that the deputy did not explicitly reject the claimant's testimony as incredible.