State/Department of Agriculture v. Allen

District Court of Appeal of Florida

State/Department of Agriculture v. Allen

692 So. 2d 230, 1997 Fla. App. LEXIS 4117, 1997 WL 175133

CourtDistrict Court of Appeal of Florida

DecidedApril 14, 1997

DocketNo. 96-1685

StatusPublished

This text of 692 So. 2d 230 (State/Department of Agriculture v. Allen) 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

State/Department of Agriculture v. Allen, 692 So. 2d 230, 1997 Fla. App. LEXIS 4117, 1997 WL 175133 (Fla. Ct. App. 1997).

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Opinion

BARFIELD, Chief Judge.

In this workers’ compensation order, the judge of compensation claims (JCC) apparently misconstrued Pinellas County School Board v. Higgins, 597 So.2d 355 (Fla. 1st DCA 1992). In the case at issue, the claimant was injured in successive compensable accidents while working for the same employer and the second accident exacerbated the injury from the first accident. The employer and carrier (E/C) calculated the compensation benefits based on the claimant’s average weekly wage (AWW) at the time of the second accident, which was a lower figure than the AWW at the time of the first accident. The JCC cited the Pinellas County School Board decision as authority for using the higher AWW from the first accident. However, unlike the claimant in that case, this claimant presented no evidence that he returned to work at a lower paying job prior to the second accident because his injury from the first accident precluded his performing his regular job duties. In this case, the record indicates that after the first accident and before the second accident, the claimant continued to work at his regular duties and continued to earn a significant amount of overtime pay. There is some indi[231]*231cation that his base salary actually increased between the two accidents. No evidence was presented that his ability to perform his regular job duties was affected by the first injury, notwithstanding his testimony that he was in “constant pain.” Unlike the claimant in the Pinellas County School Board decision, there is no evidence that this claimant suffered any diminished earning capacity due to the first injury.

The determination of AWW is therefore REVERSED and the case is REMANDED to the JCC for further proceedings consistent with this opinion.

ERVIN and BENTON, JJ., concur.

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BARFIELD, Chief Judge.

In this workers’ compensation order, the judge of compensation claims (JCC) apparently misconstrued Pinellas County School Board v. Higgins, 597 So.2d 355 (Fla. 1st DCA 1992). In the case at issue, the claimant was injured in successive compensable accidents while working for the same employer and the second accident exacerbated the injury from the first accident. The employer and carrier (E/C) calculated the compensation benefits based on the claimant’s average weekly wage (AWW) at the time of the second accident, which was a lower figure than the AWW at the time of the first accident. The JCC cited the Pinellas County School Board decision as authority for using the higher AWW from the first accident. However, unlike the claimant in that case, this claimant presented no evidence that he returned to work at a lower paying job prior to the second accident because his injury from the first accident precluded his performing his regular job duties. In this case, the record indicates that after the first accident and before the second accident, the claimant continued to work at his regular duties and continued to earn a significant amount of overtime pay. There is some indi[231]*231cation that his base salary actually increased between the two accidents. No evidence was presented that his ability to perform his regular job duties was affected by the first injury, notwithstanding his testimony that he was in “constant pain.” Unlike the claimant in the Pinellas County School Board decision, there is no evidence that this claimant suffered any diminished earning capacity due to the first injury.

The determination of AWW is therefore REVERSED and the case is REMANDED to the JCC for further proceedings consistent with this opinion.

ERVIN and BENTON, JJ., concur.

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Bluebook (online)

692 So. 2d 230, 1997 Fla. App. LEXIS 4117, 1997 WL 175133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/statedepartment-of-agriculture-v-allen-fladistctapp-1997.

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