Powell v. Dickerson of Florida, Inc.

District Court of Appeal of Florida

Powell v. Dickerson of Florida, Inc.

564 So. 2d 1220, 1990 Fla. App. LEXIS 5761, 1990 WL 110294

CourtDistrict Court of Appeal of Florida

DecidedJuly 31, 1990

DocketNo. 89-1166

StatusPublished

This text of 564 So. 2d 1220 (Powell v. Dickerson of Florida, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Powell v. Dickerson of Florida, Inc., 564 So. 2d 1220, 1990 Fla. App. LEXIS 5761, 1990 WL 110294 (Fla. Ct. App. 1990).

Pincite

Opinion

PER CURIAM.

In this workers’ compensation appeal, claimant/appellant raises numerous issues, only two of which we believe require comment.

In computing claimant’s average weekly wage, the Judge of Compensation Claims [1221]*1221(JCC) incorrectly transcribed claimant’s earnings from the payroll records of one of claimant’s employers. Rather than earnings of $1,338.52 from Dickerson of Florida, Inc., claimant actually earned $1,358.52, a difference of $20. This error, which the employer/carrier concede, resulted in an average weekly wage of $269.70 rather than $271.24, and a compensation rate of $179.80 rather than $180.83. As modified herein, we affirm the portion of the JCC’s order setting claimant’s average weekly wage.

Claimant also argues that the JCC erred in requiring her to pay an expert witness fee to appellee, Ina Fletcher-Jones. We find merit in claimant’s argument and reverse on this point.

Section 440.31 Florida Statutes provides in pertinent part:

Each witness who appears in obedience to a subpoena shall be entitled to the same fees as witnesses in a civil action in the circuit court; however, any expert witness, as defined in Rule 1.390(a) of the Rules of Civil Procedure, who shall have testified in any proceeding under this Chapter shall be allowed a witness fee ... in such reasonable amount as the Judge of Compensation Claims may determine. ...

Because the record does not establish that Ina Fletcher-Jones was offered as an expert under Rule 1.390(a), she was only entitled to “the same fees as witnesses in a civil action.” See Chris Boat Yard v. Albury, 8 FCR 201, 203, cert. denied, 292 So.2d 20 (Fla.1974) (employer/carrier not required to pay witness fee to doctor who did not testify or have his reports certified as being in evidence).

Accordingly, we reverse the JCC’s order requiring claimant to pay the expert witness fee. We affirm, as modified, the JCC’s order which set claimant’s average weekly wage.

SHIVERS, C.J., and JOANOS and MINER, JJ., concur.

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PER CURIAM.

In this workers’ compensation appeal, claimant/appellant raises numerous issues, only two of which we believe require comment.

In computing claimant’s average weekly wage, the Judge of Compensation Claims [1221]*1221(JCC) incorrectly transcribed claimant’s earnings from the payroll records of one of claimant’s employers. Rather than earnings of $1,338.52 from Dickerson of Florida, Inc., claimant actually earned $1,358.52, a difference of $20. This error, which the employer/carrier concede, resulted in an average weekly wage of $269.70 rather than $271.24, and a compensation rate of $179.80 rather than $180.83. As modified herein, we affirm the portion of the JCC’s order setting claimant’s average weekly wage.

Claimant also argues that the JCC erred in requiring her to pay an expert witness fee to appellee, Ina Fletcher-Jones. We find merit in claimant’s argument and reverse on this point.

Section 440.31 Florida Statutes provides in pertinent part:

Each witness who appears in obedience to a subpoena shall be entitled to the same fees as witnesses in a civil action in the circuit court; however, any expert witness, as defined in Rule 1.390(a) of the Rules of Civil Procedure, who shall have testified in any proceeding under this Chapter shall be allowed a witness fee ... in such reasonable amount as the Judge of Compensation Claims may determine. ...

Because the record does not establish that Ina Fletcher-Jones was offered as an expert under Rule 1.390(a), she was only entitled to “the same fees as witnesses in a civil action.” See Chris Boat Yard v. Albury, 8 FCR 201, 203, cert. denied, 292 So.2d 20 (Fla.1974) (employer/carrier not required to pay witness fee to doctor who did not testify or have his reports certified as being in evidence).

Accordingly, we reverse the JCC’s order requiring claimant to pay the expert witness fee. We affirm, as modified, the JCC’s order which set claimant’s average weekly wage.

SHIVERS, C.J., and JOANOS and MINER, JJ., concur.

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Bluebook (online)

564 So. 2d 1220, 1990 Fla. App. LEXIS 5761, 1990 WL 110294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-dickerson-of-florida-inc-fladistctapp-1990.