No. AH-48 | Fla. Dist. Ct. App. | Aug 6, 1982
The claimant in this workers’ compensation case appeals that portion of the deputy commissioner’s order which determines his average weekly wage (AWW). We reverse and remand.
The figure found by the deputy is the average of claimant’s earnings for the thirteen weeks prior to his injury, resulting from apparent application of § 440.14(l)(a), Florida Statutes. Section 440.14(l)(a) is to be utilized in determining an AWW when a
The employer/carrier argues that the AWW assigned by the deputy was proper under § 440.14(l)(f). That section provides:
(f) If it be established that the injured employee was a part-time worker at the time of the injury, that he had adopted part-time employment as his customary practice, and that under normal working conditions he probably would have remained a part-time worker during the period of disability, these factors shall be considered in arriving at his average weekly wages. For the purpose of this paragraph the term ‘part-time worker’ means an individual who customarily works less than the full-time hours or full-time workweek of a similar employee in the same employment.
However, the order does not indicate that the deputy found claimant to be a part-time employee. Clearly such a determination is factual in nature, depending on whether the employee customarily worked part-time and “probably would have remained a part-time worker during the period of disability.”
In the face of these unresolved factual issues, we must reverse and remand to the deputy commissioner to determine the point anew. If claimant was not a part-time worker, the deputy must decide which of the subsections in § 440.14(1), other than subsections (a) and (f), is applicable. The cause is therefore remanded for further proceedings consistent with this opinion.