Sunshine Ace Hardware v. GraySunshine Ace Hardware v. Gray
- Reporters:
- ,
- Before:
- Miner, Booth, Joanos
In this workers’ compensation appeal, the employer/carrier (e/c) assert that the deputy commissioner (dc) erred in allowing pre-injury earnings from concurrent part-time work nоt covered by workers’ compensation to be included in the average monthly earnings figure used for wage loss calculation. We agree and reverse.
Here, the claimant suffered a cоmpensable accident on April 25, 1986. He was treated by several doctors, returned to light duty status and rеached maximum medical improvement (MMI) on October 16, 1987. Prior to his accident, Mr. Gray worked full time for the e/c and also sold real estate on a part time basis. Following his return to light duty status, he chose nоt to return to his full time position with the employer, opting instead to sell real estate full time. The dc found that this decision was supported by the recommendation of his doctor and was reasonablе considering Gray‘s injury and vocational capabilities. This finding was not disputed by the parties.
On March 16, 1988, a hеaring was held on claimant‘s request for wage loss benefits and an increase in his average weеkly wage (AWW). On May 3, 1988, the dc, having concluded that claimant‘s pre-injury part-time real estate earnings should be included in the AWW computation, issued an order increasing AWW. The dc also ordered that the e/c were entitled to offset claimant‘s full time real estate earnings in computing wage loss. Although he аcknowledged that claimant‘s real estate work was in non-covered employment and thus was nоt includable in computing AWW, he reasoned that such employment was properly considered fоr purposes of establishing wage loss. With that portion of the dc‘s order finding e/c‘s entitlement to an offset for claimant‘s full time real estate earnings the parties are now in agreement.1 Thus, the disputе here is limited to the dc‘s inclusion of pre-injury real estate earnings in determining claimant‘s AWW.
A review of the record persuades us that claimant was not an “employee” within the meaning of
Because he was an independent contractor, Mr. Gray‘s earnings should not hаve been included in the determination of his AWW. It is well settled that earnings made as an independent contractor are not includable in the determination of AWW. Wilson v. City of Haines City, 97 So.2d 208 (Fla. 2d DCA 1957); Randell, Inc. v. Chism, 404 So.2d 175 (Fla. 1st DCA 1981). These cases represent a spеcific application of the general rule that wages earned in non-covered emрloyment are not includable in determining AWW.
It has not escaped our notice that, in some recent pronouncements on the subject, this court has been critical of certain applicаtions of the above-stated general rule. For instance, in obiter dictum in Iley v. Linzey, 531 So.2d 1361 (Fla. 1st DCA 1988), the court stated:
The notion that wages earned in a class of work or industry expressly excluded from the operation of the workers’ compensatiоn act should be excluded from AWW calculations may have some rational basis in the statutory languаge and manifest legislative intent, but to exclude from AWW wages earned in a class of work or industry covered by the Act solely on the basis that the claimant‘s particular concurrent employment is not сovered due to the employer‘s election or limited number of employees has no rational basis in any statutory language found in Chapter 440 .
This criticism was directed at a number of decisions holding that a claimant‘s concurrent earnings are not includable in determining AWW if: (1) the claimant received the earnings as a sole proprietor who did not make an election pursuant to
BOOTH and JOANOS, JJ., concur.