Florida/Georgia Personal Injury & Workers Compensation

...Since there was no such search, the award is therefore reversed and the case is remanded with directions that an award of TTD be entered consistent with the time frame stipulated by the e/c. Appellant next argues that the D.C. erred in computing claimant's AWW by selecting the method provided in Section 440.14(1)(a), Florida Statutes (1979) [2] , instead of subsection (b), pertaining to the similar employee method of computation, [3] and that the D.C....

...After leaving that employment, he then worked for three-and-a-half weeks as a carpenter with Four Quarters at a rate of $6.00 per hour for 40-hours per week. The claimant, however, offered no testimony of the wages he actually received from either employer. In determining the AWW, the deputy, following the provisions of Section 440.14(1)(a), took a weighted, combined average of claimant's presumed income from the two employers for the 13-week period preceding the accident, thereby arriving at the figure of $286.15 per week....

...Israel Abrams, Miami, and Kenneth H. Hart, Jr., Tallahassee, for respondents. BOYD, Justice. This cause is before us on petition for writ of certiorari to the Florida Industrial Relations Commission. The question presented is the proper method of determining under Florida Statutes § 440.14, F.S.A., the average weekly wage of an employee who holds concurrent but dissimilar part-time and full-time jobs and is injured in the course of his part-time employment....

...the wages could not be combined to give claimant a higher weekly wage under the authority of J.J. Murphy and Son, Inc. v. Gibbs. [1] The Judge of Industrial Claims also found that none of the methods of arriving at a proper average weekly wage under § 440.14(1), (2), (4), and (5), applied so that only § 440.14(3) would apply....

...The Full Commission affirmed per curiam without opinion. In J.J. Murphy and Son, Inc . [2] , this Court first enunciated the rule that wages in concurrent similar employments may be combined for the purpose of arriving at the average weekly wage under Florida Statutes § 440.14, F.S.A....

...Her two jobs were found to be dissimilar so that the wages could not be combined. On re-examination of the J.J. Murphy case, we find that the frequently inequitable results arising from the rule of that case, prohibiting a combination of wages from concurrent dissimilar employment, are not required by Florida Statutes § 440.14, F.S.A., or any other section of the Workmen's Compensation Act....

...loyments during the thirteen weeks preceding his injury is a realistic representation of his average weekly wage for substantially full-time employment, i.e., employment `during substantially, the whole of thirteen weeks' within the contemplation of Section 440.14(1), supra." What we have said does not change the rule of Jacquette Motor Co....

...He worked seven days during this nine-day period and earned a total of $114.53. Of this sum $83.13 was earned during the work-week prior to his death. At the time of his death the employee's wage rate was $1.75 an hour for an expected forty-hour week, or $70.00 per week. Fla. Stat. § 440.14, F.S.A....

...s engaged at the time of his death for thirteen weeks or a substantial part thereof and it was also stipulated that there were no similar employees in the same employment. Accordingly, the Judge of Industrial Claims correctly found that Fla. Stat. §§ 440.14(1) and 440.14(2), F.S.A., were not applicable. We must determine whether the Judge of Industrial Claims was correct in holding that the "full-time weekly wages" under Fla. Stat. § 440.14(3), F.S.A....

...The parties stipulated that claimant had not worked thirteen weeks immediately preceding the date of the injury and the record was devoid of any evidence of wages of employees in the same or similar employment. The Full Commission considered Fla. Stat. § 440.14(3), F.S.A....

...to the accident was $22.25 per week, but the Deputy Commissioner determined the average weekly wage to be $60.00 based on a full forty-hour week at $1.50 per hour. The Deputy Commissioner found that the method provided in Subsections (1) and (2), of § 440.14, Fla....

...This Court held that there was competent substantial evidence to support the finding of the Deputy and distinguished Adams v. Florida Industrial Commission, 110 So.2d 455 (Fla.App.1st 1959) in that the Deputy Commissioner in the Adams case failed to find that Subsection (1) of § 440.14, Fla....

...As stated above, the decedent in the case sub judice had begun his training as a crane operator and it was the intent of the employer to arrange his working hours so that he would eventually earn $120.00 per week. The "full-time weekly wage" as contemplated by Fla. Stat. § 440.14(3), F.S.A., may be determined either by the "contract of employment" or the "actual earnings," according to the circumstances of each case. These circumstances should be shown by competent substantial evidence and Fla. Stat., § 440.14(3), F.S.A., should be reasonably and fairly applied to the facts proven. The finding that the average weekly wage of decedent as $83.13 was fully justified. This is apparent when Subsection *743 (3) of § 440.14, Fla....

...benefits. The deputy also erred in determining claimant's average weekly wage on the basis of a 40-hour work week. Where, as here, the "13-week" and "similar-employee" methods of computing full-time average weekly wage are inapplicable, see Sections 440.14(1)(a) and (b), Florida Statutes, an employee's wages should be calculated according to his full-time weekly wages pursuant to Section 440.14(1)(d), Florida Statutes....

...t has a permanent physical impairment; and that claimant is entitled to wage loss benefits pursuant to his corrected AWW. Regarding the retroactive pay increase issue, the arguments raised suggest a potential conflict between sections 440.02(21) and 440.14(1). The former statute states in pertinent part: "`Wages' means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury... . " (e.s.) Section 440.14(1)(a) provides for the computation of the AWW as follows: If the injured employee has worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks. (emphasis supplied.) The deputy, reasoning that because section 440.14(1)(a) provides that the AWW should be based upon wages actually earned the thirteen weeks before the injury, and not on wages paid, determined that *627 the wages paid following the accident should be included within claimant's AWW, since they were earned before the occurrence of the two injuries....

...that his AWW should be determined by the amount of wages actually earned. The factual scenario in the case at bar is not unlike that before the Industrial Relations Commission in City of Titusville v. Taylor, in which the Commission, in interpreting Section 440.14(1), Florida Statutes (1971), concluded that the appropriate amount to be included in claimant's AWW was the amount he earned, not the monies actually paid to him during the 13-week period preceding the occurrence of the injury....

...which is most favorable to the employee.'" Kerce v. Coca-Cola Company-Foods Division, 389 So.2d 1177, 1178 (Fla. 1980) (quoting Henderson v. Sol Walker & Co., 138 So.2d 323, 327 (Fla. 1962)). Following the above doctrine of construction, we construe section 440.14(1)(a) in favor *628 of claimant-appellee, and affirm the order directing the employer to recompute the AWW and compensation rate by reason of the claimant's pay increase made retroactive to a period of time more than thirteen weeks before his two accidents....

...ence disclosing that claimant voluntarily limited his income, the order of the deputy is in all respects AFFIRMED. BOOTH, C.J., concurs. THOMPSON, J., dissents with written opinion. THOMPSON, Judge, dissenting. The deputy commissioner (deputy) found § 440.14(1)(a), Fla....

...Therefore, he ruled that a subsequent retroactive pay raise should be included in the determination of claimant's AWW. The majority agrees that the retroactive pay raise should be included in the AWW determination because there is some ambiguity as a result of a possible conflict between § 440.02(21) defining wages and § 440.14(1) relating to the determination of the AWW. Section 440.02(21) defines wages as "the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury ..." (emphasis supplied), whereas § 440.14(1)(a) provides that the AWW is to be based on the average of the weekly wages earned during the 13 weeks immediately preceding injury....

...the ambiguity or conflict, and any doubt should be resolved in favor of the claimant. However, there is no ambiguity or conflict between the two statutes. They are clear and unambiguous and should be given their clear and unambiguous meaning. While § 440.14(1)(a) does refer to the amount earned rather than to the amount paid, subsection 440.14(1), of which subsection (1)(a) is a part, provides: (1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation......

...s pre-injury employment in determining her diminution of wage earning capacity for permanent partial disability benefits under section 440.15(3)(u), Florida Statutes (1974 Supp.). [1] *1178 The issue is whether "average weekly wage" as prescribed in section 440.14, Florida Statutes (1974 Supp.), without seasonal adjustment, is the proper measure of wage earning capacity before the injury....

...capacity"-presumptively represents the difference between the injured employee's wage earning capacity before and after the injury. [4] Wage earning capacity before the injury is measured solely by the employee's average weekly wage as prescribed in section 440.14, Florida Statutes (1974 Supp.)....

...Our decisions in Ball and Walker, however, both dealt with wage earning capacity after an injury. These cases are irrelevant here. While pre-injury wage earning capacity is capable of objective measurement by the formula for computing the average weekly wage under section 440.14, any assessment of post-injury wage earning capacity must always be a prediction about the indefinite future and it is not only proper, but necessary that the judge take into account all relevant factors. See Harris v. Lenk, 224 So.2d 283 (Fla. 1969). Coca-Cola's position is entirely without statutory support, and we are not empowered to create a new seasonal employment formula for the computation of pre-injury wage earning capacity. Indeed, section 440.14(3), Florida Statutes (1974 Supp.)-the only reference in the act to seasonal employment-infers that the legislature did not *1179 intend that the seasonal nature of an injured employee's work should have an adverse effect on the computation of average weekly wage....

...salary he is able to earn while recovering from the temporary partial disabilities. In regard to the benefits payable under this section, the burden is on the employee to establish that any wage-loss claimed is the result of the compensable injury. § 440.14(4)(b), Florida Statutes....

...quired coverage under the act. Accordingly, while wages from concurrent employment are generally included in the determination of a claimant's average weekly wage, see, e.g., Quality Painting, Inc. v. Harrison, 529 So.2d 1172 (Fla. 1st DCA 1988) and Section 440.14(1)(a), Florida Statutes (1987), earnings as an independent contractor are not includable in this determination....

...Accordingly, that portion of the judge's order including claimant's pre-injury earnings as an independent contractor with HJR in the determination of claimant's AWW is REVERSED. This case is REMANDED for (1) a proper calculation of claimant's AWW in accordance with Section 440.14, Florida Statutes (1987) and (2) application of the "deemed earnings" provision of Section 440.15(4)(b), Florida Statutes (1987)....

...ubstantial evidence: (1) claimant was a part-time worker at the time of the injuries; (2) claimant has adopted part-time employment as a customary practice; and (3) claimant would have remained a part-time worker during the period of disability. See § 440.14(1)(f), Fla. Stat. (1987); Eaton v. Pinebrook Place Health Care Center, 506 So.2d 1148 (Fla. 1st DCA 1987). Section 440.14(1)(f) recognizes that it would be inequitable to compensate a worker only on the basis of his part-time earnings or capacity if such part-time status was not voluntarily assumed....

...full-time worker, that is involved. See American Uniform & Rental Service v. Trainer, 262 So.2d 193 (Fla. 1972). Accordingly, on remand, the judge shall calculate claimant's AWW on the basis of her status as a full-time worker under either Sections 440.14(1)(b) or (d), whichever the judge should find appropriate....

...The employer/carrier (E/C) appeal an order of the judge of compensation claims (JCC) ordering the E/C to pay Claimant benefits based on an average weekly wage (AWW) calculated according to the premium basis upon which Claimant paid workers' compensation insurance premiums instead of section 440.14(1), Florida Statutes....

...Claimant contended that her correct AWW was $429.51 because she and Mr. Davis had contracted with Mayflower for that amount in their workers' compensation insurance policy. The E/C, however, argued that Claimant's AWW should have been calculated according to section 440.14(1), Florida Statutes, which requires that it be based upon the average wage earned by the claimant during the thirteen weeks immediately preceding the accident....

...In making this decision, the JCC relied upon Fleitas v. Today Trucking, Inc., 598 So.2d 252 (Fla. 1st DCA 1992), which held that an independent contractor's AWW may be based on a rate contracted for in the company's workers' compensation policy rather than a rate computed under section 440.14(1) as long as the contract rate bore a reasonable relationship to the claimant's actual wages and the claimant would not have otherwise been entitled to any benefits. The E/C argue on appeal that the premium basis listed in the workers' compensation policy did not constitute a stipulated AWW and that Claimant's AWW should have been based upon section 440.14(1) rather than the estimated earnings contained in the policy....

...Lastly, the E/C argue that Fleitas cannot be applied here because the current contract rate does not bear a rational relationship to Claimant's actual earnings. We disagree with the E/C's arguments and affirm. Obviously, methods other than that set forth in section 440.14(1) may be used to calculate a claimant's AWW....

...Jefferson County School Bd., 622 So.2d 515 (Fla. 1st DCA 1993) (affirming the JCC's innovative approach to calculating the AWW of a substitute bus driver who only worked four weeks out of the year). Here, the JCC was free to use a method other than that delineated in section 440.14(1) as long as that method had a foundation in Florida law....

...Further, there is no other clear evidence to the contrary. We accept Claimant's uncontroverted testimony that she and Mr. Davis merely deposited the money from Mayflower into their joint account and withdrew it when needed. Lastly, unless this Court requires the JCC to figure the AWW according to section 440.14, it is irrelevant whether Claimant worked during the thirteen weeks preceding the accident....

...90-201, § 9, Laws of Fla.; Ch. 91-1, § 7, Laws of Fla. She argues that in calculating her average weekly wages (AWW), the judge of compensation claims (JCC) erroneously utilized the restrictive 1990 definition of wages, rather than adhering to the language of section 440.14(1), Florida Statutes (1989), a section overlooked by the Legislature during the comprehensive facelift given chapter 440 in 1990....

...She further argues that if the new definition of wages is construed to apply to the calculation of her AWW, then the new statute is unconstitutional as a denial of due process, access to courts, and equal protection. [2] Today we hold that on the facts presented in this case, the calculation of Vegas' AWW under section 440.14(1) has not been altered by the new wording of 440.02(24), and accordingly we reverse and remand....

...They further stipulated that the AWW with Argenbright & Associates is $92.66. In the order now under review, the JCC found that the definition of wages contained in section 440.02(24), Florida Statutes (Supp. 1990), controls the computation of AWW under section 440.14(1)(a), Florida Statutes (1989)....

...the calculation of her AWW, under the dictates of section 440.02(24). AWW was therefore established, pursuant to the stipulation, at $156.38. AWW under chapter 440 is a term of art, and may only be calculated by reference to the formula contained in section 440.14, or some other comparable statutory formula. The portion of section 440.14 that applies to the present case provides as follows: 440.14 Determination of pay....

...ined as a consecutive period of 91 days, and the term "during substantially the whole of 13 weeks" shall be deemed to mean during not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole. § 440.14(1)(a), Fla. Stat. (1989). During the 1990 revisions to chapter 440, the Legislature neither added nor took away any of the operative language of section 440.14(1)(a). Similarly, neither in 1990, nor at any time before or since, has the Legislature provided in the definitional section of chapter 440 a definition of AWW. It is clear from a review of the language of section 440.14(1)(a) that the term "average weekly wages" is not synonymous with the term "wages." Section 9 of chapter 90-201, as codified at section 440.02(24), Florida Statutes (Supp....

...The employer/carrier urges that the Legislature's use of the phrase "includes only the wages earned on the job where the employee is injured and does not include wages from outside or concurrent employment" significantly alters the practical application of section 440.14(1). In support of their contention, the employer/carrier point to the legislative intent set out in chapter 90-201 [3] and *79 also to the prefatory language of section 440.14(1): "Except as otherwise provided in this Chapter... ." Neither argument, however, provides us with sufficient rationale to ignore the plain language of section 440.14(1)(a). At the outset of our analysis, we note that the term "wages," defined in the 1990 amendments, does not, within the literal language of section 440.14(1)(a), stand alone so that its definition may be derived simply by resort to section 440.02(24). The word "wages" first appears as part of the phrase "average weekly wages," which is obviously the subject of section 440.14....

...king at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury. ..." The phrase "such employment" can only relate back to the employment previously referred to in section 440.14(1)(a), which expressly includes "the same or another employer." We must thus determine the meaning of this language, and such a task may only be accomplished by resort to the case law of three decades focusing upon this very statute. In Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla. 1961), the supreme court looked at the 1957 version of section 440.14, which was identical to the portion of section 440.14(1)(a), Florida Statutes (1989), that we construe today....

...East Coast Railway, but based such conclusions solely upon the fact that employment by the railroad is "specifically exempted from the operation of the Workmen's Compensation Act." 134 So.2d at 240. The court observed, without passing judgment, that section 440.14 had historically been construed by the Florida Industrial Commission as authority for using concurrent earnings in the calculation of AWW: Sub-section (3) of the same section provides "if either of the foregoing methods cannot reasonab...

...loyee solely upon his earnings from the employment out of which his injury transpired. 134 So.2d at 240 (emphasis in original). The statutory language identified in Jaquette as deriving from subsection (3) is the same language that still survives as section 440.14(1)(d), Florida Statutes (1991). One year later the court again looked at section 440.14 in J.J....

...Claimant Gibbs worked for J.J. Murphy & Son in the afternoons and early evenings as a bookbinder, *80 and worked in the mornings and early afternoons for the Dade County School Board as a food service worker. The court focused upon the same provisions of section 440.14 that concern us today, namely "employment in which he was working at the time of the injury ..." and "in such employment... ." The court concluded that in determining AWW under section 440.14(1), "only wages received by an employee for performance of the same or similar services during the prescribed period may be combined in such computation." 137 So.2d at 559....

...focused on the statutory use of the term "employment" and paid no mind whatever to the definition of wages contained in section 440.02(12), Florida Statutes (1957). Significantly, in commenting upon the purposes underlying the various subsections of section 440.14, the court observed: Compensation under the Act is designed to compensate a worker for loss of wage earning capacity....

...he might have received had he exercised his full earning capacity. Where a worker is both a full time employee and a part time employee, as in this case, he quite obviously is not electing to customarily limit his wage earning capacity. The statute [440.14] recognizes that it would be inequitable to compensate a worker only on the basis of his part time earnings or capacity if such status was not voluntarily assumed. 137 So.2d at 560 (emphasis added). The J.J. Murphy case as a whole demonstrates quite clearly that the supreme court in no way questioned the proposition that the computation of AWW under section 440.14 could include concurrent employment....

...The question put to the court was whether the rule of J.J. Murphy, requiring concurrent similar employment, should give way to a new rule allowing combination of wages from concurrent dissimilar employment. Once again the court confined its analysis to section 440.14, and made no mention whatever of the definition of wages contained in section 440.02. Expressly referring to section 440.14, the court noted: On re-examination of the J.J. Murphy case, we find that the frequently inequitable results arising from the rule of that case, prohibiting a combination of wages from concurrent dissimilar employment, are not required by Florida Statutes § 440.14, F.S.A., or any other section of the Workmen's Compensation Act....

...ng capacity of an injured claimant. The practical effect of appellee's argument would be to treat Ms. Vegas, a person who worked full time (albeit for two different employers) at the occupation of airport security, as if she were a part-time worker. Section 440.14(1)(f) makes a special provision for true part-time workers: If it is 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 u...

...Southeastern Contracting & Door Service, 468 So.2d 509 (Fla. 1st DCA 1985). Such a limited computation is exactly what would befall Ms. Vegas by virtue of the compensation order below, although no one has ever contended that she adopted part-time employment as her customary practice. Since section 440.14(1)(f) *82 already makes provision for a true part-time worker, it would be contrary to reason to treat a worker who must serve multiple employers in order to receive a full-time pay-check as if she were a part-time worker....

...erlying purpose of the Act." Id. The exclusion of concurrent wages under the pre-1990 law did not prohibit the JCC from making a determination that the injured claimant was in fact a full-time worker and therefore computing AWW under either sections 440.14(1)(b) or 440.14(1)(d)....

...connected injuries, and place the burden on the industry which caused the injury). In Witzky v. West Coast Duplicating & Claims Center, 503 So.2d 1327, 1329 (Fla. 1st DCA 1987), this court characterized AWW, the calculation of which is controlled by section 440.14(1)(a), as "simply a method of establishing the value of an employee's lost ability to earn future wages during the period of disability attributable to the covered industrial accident." The court quoted from Larson's treatise: The enti...

...a wage basis. Id., quoting 2 Larson, The Law of Workmen's Compensation, § 60.11(d), pp. 10-564 (1986). We now turn to the contention of Globe Security and of amicus that the language "Except as otherwise provided in this chapter," which introduces section 440.14, serves *83 to trigger reliance upon the definition of wages contained in section 440.02(24), and compels the court to ignore the longstanding statutory scheme for computing AWW contained in section 440.14(1)....

...the basis upon which to compute compensation, unless otherwise provided in chapter 440. Appellees in this case do not contend that Ms. Vegas' AWW should not be used to compute compensation. Rather, Globe Security asks us to ignore the provisions of section 440.14(1) in computing AWW. [6] As we have previously determined, nothing in the statute indicates that AWW is synonymous with wages. This is not to say that the statutory definition in section 440.02(24) could never be considered in calculating the AWW under section 440.14(1)....

...For example, the new definition of wages expressly limits the fringe benefits that can be considered. [7] The statutory elimination of most fringe benefits, unlike the attempt to eliminate concurrent employment, fits neatly into the formula provided by section 440.14(1)(a), and merely adjusts the required calculation of "total amount of wages." See Rudd Sod Co....

...1st DCA 1991); Bright v. City of Tampa, 546 So.2d 1122, 1124 (Fla. 1st DCA 1989); Layne Atl. Co. v. Scott, 415 So.2d 837, 838-839 (Fla. 1st DCA 1982). Concurrent earnings analyses, on the other hand, have relied upon the legal concept of AWW as embodied in section 440.14, and we will not ignore the plain language of the statute unless another guide to calculation, whether more restrictive or more liberal, is provided at some other place in the act. [8] Our close attention to the AWW concept contained in section 440.14, and our ultimate conclusion that the new definition of wages in section 440.02(24) does not impact the calculation of AWW in the present case, is made with full appreciation that the concept of AWW means nothing until it is applied to...

...employee's ability to perform the activities of his usual or other appropriate employment," may be entitled to wage loss benefits which "shall be based on actual wage loss." These provisions of section 440.15, like the AWW calculation provisions of section 440.14, were not changed by virtue of chapter 90-201, Laws of Florida....

...can Uniform and Rental Service v. Trainer, 262 So.2d 193 (Fla. 1972), and K-Mart v. Jones, 502 So.2d 495 (Fla. 1st DCA 1987)." 616 So.2d at 62. Nothing on the face of Ciancio, however, indicates that the court was in that case urged to conclude that section 440.14(1)(a) should control the computation of average weekly wages....

...[9] Moreover, and in retrospect, we note that nothing in American Uniform & Rental Service v. Trainer or K-Mart v. Jones indicates that either of those decisions was predicated upon the statutory definition of wages. American Uniform 's rationale derived from section 440.14, as has been detailed above. Similarly, even a quick review of K-Mart v. Jones establishes that this court was construing only the AWW statute, section 440.14. Accordingly, and without changing the result in Ciancio, we now decline to hold that chapter 90-201, Laws of Florida, overruled case law interpreting section 440.14(1). We reach this conclusion because chapter 90-201, despite its expansive nature, did not in any way address section 440.14(1). In reaching this result, we do not ignore the contention that we should construe section 440.14(1)(a) with reference to the legislative intent so eloquently set out in the preface of chapter 90-201, Laws of Florida....

...s concurrent earnings. Whether or not this is an accurate observation, the Legislature may not, however, change substantive law by merely expressing its intent. It is also necessary to amend the controlling substantive statute, which in this case is section 440.14....

...McLaughlin, 102 So.2d 574 (Fla. 1958). Courts may look to legislative history only to resolve ambiguity in a statute. Department of Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So.2d 879 (Fla. 1983). 556 So.2d at 395. Our examination of section 440.14(1)(a) has not convinced us that this particular statute is "of doubtful meaning." We are thus guided by the plain meaning of the statutory language, and are inescapably drawn to the Legislature's retention in section 440.14(1)(a) of the provision requiring consideration of the claimant's earnings "whether for the same or another employer" during the 13 weeks immediately preceding the injury, and also to the statutory requirement establishing AWW at one-th...

...ing the term wages, is completely erroneous for the reasons discussed in Judge Kahn's opinion. ALLEN, Judge, dissenting. Despite the cogent and dexterous reasoning of the majority opinion, I cannot agree to an average weekly wage determination under section 440.14(1)(a), Florida Statutes, without resort to the definition of wages in section 440.02(24), Florida Statutes....

...The majority's concern as to the practical effect of applying section 440.02(24), in light of the broad philosophical purposes underlying the Workers' Compensation Law, is more properly a matter of legislative policy than judicial imprimatur. In construing section 440.14(1)(a) in isolation, the majority disregard the acknowledged legislative intent reflected in section 440.02(24) to alter the existing law regarding concurrent earnings, as indicated in Ciancio v. North Dunedin Baptist Church, 616 So.2d 61 (Fla. 1st DCA 1993). As a term of art used in chapter 440, "average weekly wages" under section 440.14 are obviously not synonymous with the definition of "wages" provided in section 440.02(24)....

...loss is circumscribed by the definition of wages, and even under the prior law not all lost earnings were compensated (e.g., noncovered earnings). Nor does section 440.02(24) present any necessary conflict with the average weekly wage concept under section 440.14(1)(a)....

...Talley, 134 So.2d 238 (Fla. 1961); J.J. Murphy and Sons, Inc. v. Gibbs, 137 So.2d 553 (Fla. 1962); and American Uniform Rental Service v. Trainer, 262 So.2d 193 (Fla. 1972), which construe what wages were to be considered in calculating AWW pursuant to 440.14(1), have not mentioned the definition of wages in section 440.02, then any amendment to the definition of wages contained in section 440.02 would be ineffective in determining how average weekly wage is to be calculated....

...st that is affordable to employers, and WHEREAS, the magnitude of these compelling economic problems demands immediate, dramatic and comprehensive legislative action... . [4] While the supreme court reached the American Uniform holding by construing section 440.14, the court did not specifically state which subsection of the statute applied to calculation of AWW in a case of concurrent earnings. In Jaquette, supra, the court referred to subsection (3) of section 440.14 (440.14(1)(d), Fla....

...1990)), as the basis upon which the Florida Industrial Commission had allowed concurrent earnings through dissimilar employment. While it is difficult to be completely sure, it would appear that the court in American Uniform was construing subsection (1) of the statute, which is now section 440.14(1)(a). American Uniform approved the decision of the Industrial Commission in Watson v. Merrill-Stevens Dry Dock & Repair Co., 1 FCR 355 (1956). The Commission in Watson found the combination of concurrent earnings to be "within the contemplation of Section 440.14(1)," 1 FCR at 357. This court has followed Watson and American Uniform in Quality Painting, Inc. v. Harrison, 529 So.2d 1172, 1173 (Fla. 1st DCA 1988), stating "that in cases of dissimilar concurrent employment section 440.14(1)(a) will apply, and the combined wages approach should be utilized, if the claimant has worked for the requisite 13 weeks in one of the employments." [5] Section 440.14(1)(b), Florida Statutes (1989), provides: If the injured employee has not worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph. Section 440.14(1)(d), Florida Statutes (1989), provides: If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used, except as otherwise provided in paragraph (e) [making provision for an injured employee under 22 years of age] or paragraph (f). [6] Although not acknowledged by appellees, we note that chapter 440 does contain provisions for compensation which are not based strictly upon AWW as computed under section 440.14(1)....

...greater amount. We affirm as to this point as well. Where the "13-week" and "similar employee" methods of computing full-time AWW are inapplicable, an employee's wages should be calculated according to the full-time weekly wages method, pursuant to Section 440.14(1)(d), Florida Statutes....

...We apply the same rationale to the facts at bar. There was evidence from which the deputy could infer that the business, which claimant and his brother solely owned, was legally obligated to pay claimant $350 per week. That claimant did not actually receive such amount is immaterial under section 440.14(1)(d), in that the statute authorizes, as an alternative means of calculating an employee's AWW, the contract of employment....

...It is true, of course, that the death of the employee herein terminates his earnings from the railroad as well as those which he received from the covered employment. However, this fact does not justify our expanding the provisions of the act beyond those situations which it was intended to cover. Section 440.14, F.S.A., regarding determination of pay, clearly supports this holding: "(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, durin...

...ubstantially the whole of thirteen weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said thirteen weeks." (Italics supplied.) Sub-section (2) of Section 440.14 provides an alternative method of computing the wage basis if the claimant has not worked in "such employment during substantially the whole of thirteen weeks immediately preceding the injury." In such event the wages of a similar employee in the same employment shall be used to determine the wage base....

...is specifically exempted from the operation of the Workmen's Compensation Act. Even if it could be said that limiting the wages to those received from the employment in which he was working at the time of the injury as provided by sub-section (1) of Section 440.14 was not reasonable and fair and that sub-section (3) should be applied, it is our opinion that the phrase "full time weekly wages" as used in sub-section (3) must be construed within the context of the Workmen's Compensation Act as a whole....

...Florida Statutes section 440.30, .33 (1981); Fla.W.C.R.P. 9, 15; John Gaul Construction Co. v. Harbin, 247 So.2d 33 (Fla. 1971). Absent evidence of a similar employee's earnings, the deputy should have calculated the average weekly wage pursuant to section 440.14(1)(d)....

...2 destroyed her wage-earning capacity. The wages Ms. Ahles received for her work first as a patient care advocate, then as a social services department manager, evinced without contradiction the amount of "remuneration the employee is able to earn." § 440.14(4)(a), Fla....

...The deputy's order is supported by law and by substantial competent evidence on each of the five points argued by the carrier's appeal. It is necessary to discuss only one of those points, by which the carrier contends that the deputy's calculation of claimant's average weekly wage, section 440.14, Florida Statutes (1978 Supp.), resulted in an excessive compensation rate....

...13, 1976), cert. den., 345 So.2d 423 (Fla. 1977). But it does not appear that the carrier cited those decisions to the deputy, nor that the carrier urged to the deputy that there is but one calculation suitable for determining the worker's full time weekly wages, section 440.14(4), in cases such as this. See Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982). At any rate the deputy's task was, as the deputy rightly stated, to determine the full-time weekly wages of the injured employee, section 440.14(4), by applying the statutory guidelines "reasonably and fairly ......

...T G & Y Store # 1331, 405 So.2d 985 (Fla. 1st DCA 1981). The employer/carrier's next challenge is to the deputy's determination of average weekly wage. Claimant did not work substantially the whole of thirteen weeks immediately preceeding the injury, as contemplated by section 440.14(1)(a), Florida Statutes (1979)....

...Averaging past earnings for other than the entire thirteen-week period is impermissible. Simpkins v. Watson, 397 So.2d 432, 434 (Fla. 1st DCA 1981). When the legislatively prescribed retrospective methods are inapplicable, the average weekly wage should be computed prospectively in accordance with section 440.14(1)(d)....

...tential for improvement. The Judge of Industrial Claims looked beyond the stipulation of the parties concerning the petitioner's wage at the time of the injury, and increased the amount awarded as compensation from $36 to $49 per week. He determined Section 440.14(4), Florida Statutes (1973), [2] to authorize such action....

...er findings of fact and entry of an order consistent with this opinion. It is so ordered. BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur. ROBERTS and ADKINS, JJ., dissent. NOTES [1] Art. V, § 3(b)(3), Fla. Const. [2] Workmen's Compensation Law: "440.14 Determination of pay....

...) If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his average weekly wages." § 440.14(4), Fla....

...The deputy commissioner ruled that only commissions actually paid to claimant during the thirteen-week period immediately prior to his injury would be included in calculating claimant's average weekly wage, and figured total commissions and salary paid to claimant during this period to be $4,330.50. The deputy, applying section 440.14(1)(a), reduced that amount by the cost of health insurance benefits still provided by the employer and servicing agent, and determined the average weekly wage to be $296.87. Claimant's contention that this amount was well below his expected income of $26,000 per year, or $500 per week, was unpersuasive. Claimant appeals this final order. Section 440.14(1)(a), Florida Statutes (1985), speaks in terms of wages "earned" by a claimant during the thirteen week period immediately preceding an accident, and is not necessarily limited to the amount of money actually paid to the claimant....

...ch 22, 1985. Therefore, the equipment was not "sold," and the commission was not "earned," until the order was actually placed, several weeks after the accident. Our holding in this case, that for the purpose of calculating average weekly wage under section 440.14(1)(a), commissions were "earned" when the sale was closed rather than when payment of the purchase price was ultimately received by *1329 the employer and the commission paid to claimant, comports with the underlying theory and purpose...

...If claimant's compensation agreement with his employer was intended by both to produce approximately $26,000 in income each year, it should be obvious that limiting average weekly wage calculations to commissions received during the arbitrary thirteen-week period specified in section 440.14(1)(a), is not a fair and satisfactory method of measuring claimant's lost earning capacity....

...Certainly, since the basis of compensation was annual earnings likely to fluctuate from quarter to quarter, a more rational basis for determining claimant's average weekly wage would be to calculate his annual earnings and divide by fifty-two weeks, as in the case of a seasonal worker under section 440.14(1)(c). But the supreme court's construction of section 440.14 in Waymire v....

...o be found anywhere" because of its "literalistic approach" (Larson, pages 10-556 through 10-558), precludes resort to a more equitable method of determining average weekly wage and requires rigid application of the thirteen-week period specified in 440.14(1)(a) even though the commissions forming the basis of compensation are routinely paid a considerable time after completion of the sales activities of the claimant....

...Cox Broadcasting, 500 So.2d 197, 198 (Fla. 1st DCA 1986) (Ervin, J., specially concurring). As suggested by Judge Ervin's opinion in Anstead, because the timing of the receipt of income may not be directly related to the wage-earning activities of a claimant, the wage data used under 440.14(1)(a) may cause the average weekly wage to be set artificially above normal or below normal, depending entirely upon fortuitous circumstances unrelated to one's physical ability to perform work and earn income. The issue before us falls in that troublesome area requiring determination of lost earning capacity where the injured employee has been employed full-time for at least thirteen weeks and meets the requirements of section 440.14(1)(a), although the agreed-upon method of compensation for that person's services does not readily lend itself to using the limited thirteen-week period prescribed by that subsection as a fair and reasonable determination of lost earning capacity....

...mant, in this case a one-year period. Nearly all the recent cases cited in this opinion have criticized the lack of flexibility and discretion accorded the deputy commissioner to fairly determine lost earning capacity under past decisions construing section 440.14, and the decisions have implored the legislature to adopt corrective legislation....

...The statutory amendments should also modify the rigid statutory constraints imposed on deputy commissioners and this court by the supreme court's decision in Waymire v. Florida Industrial Board, 174 So.2d 404, to permit deputies, in their discretion, to use alternative methods for calculating average weekly wage under section 440.14 that are fairer and more consistent with the contracts of employment and intentions of the parties, without having to give priority to subsection (a)....

...Maddox Foundry & Machine Works, 414 So.2d 524 (Fla. 1st DCA, 1982) petition for rev. docketed, no. 62,090 (Fla., May 20, 1982), and was comparable to actual wages, which is of course included in the computation of a claimant's average weekly wage. § 440.14(1)(a), Fla....

...Ingram of Ingram & Ingram, Sarasota, for Appellees. ERVIN, J. In this workers' compensation appeal, the employee, Freda Gilbreth, complains that the judge of compensation claims (JCC) erred in calculating her average weekly wage (AWW) pursuant to the method set out in 440.14(1)(a), Florida Statutes (1997), [1] based solely upon the wages claimant earned in her primary employment the 13 weeks immediately preceding her industrial accident, thereby excluding the wages earned from her parttime employment, because she did not receive them during the 13-week period. Appellant contends that her AWW should have been calculated by combining the income from both occupations under section 440.14(1)(c), pertaining to seasonal employment, which permits computation using the 52-week period predating the injury....

...Claimant's wages as an adjunct professor accounted for approximately 20 percent of her annual earnings, and if her part-time employment had been calculated pursuant to the seasonal employment method for the 52-week period prior to the injury, her AWW would have been substantially *1228 greater than that provided in section 440.14(1)(a). In determining that the 13-week calculation was the only method available to claimant under section 440.14, the JCC made the following pertinent findings: [T]he court has considered the Claimant's claim for inclusion of her earnings at Polk Community College in the calculation of her average weekly wage and compensation rate....

...ge was calculated correctly, and no adjustment is due. The JCC's decision that the claimant's part-time employment as an adjunct professor could not be considered seasonal was based on two conclusions which depended primarily on an interpretation of section 440.14....

...In that the JCC's decision rests essentially on an interpretation of the law, our standard of review is de novo, which makes deferential review considerations that are customarily available in other types of appeals inapplicable. A plain reading of section 440.14(1)(c), regarding the seasonal employment methodology, provides no support to the judge's interpretation....

...The employee will have the burden of proving that this method will be more reasonable and fairer than the method set forth in paragraphs (a) and (b).... The above provisions clearly reveal that the only statutory conditions to the calculation of claimant's AWW under section 440.14(1)(c) are that she make a satisfactory showing that (1) she is a seasonal employee, and (2) the seasonal employment method is more reasonable and fairer than that provided in subsections (a) or (b), the 13-week and similar-employee methods, respectively....

...during substantially the whole of 13 weeks immediately preceding the injury." The court considered that the above provision referred to both concurrent and successive employers during the 13-week period, thereby making inapplicable any other means of calculation furnished by section 440.14. As stated, claimant in the present case did not receive any of her part-time wages during the 13 weeks before her injury. We therefore conclude that the JCC erred by employing subsection 440.14(1)(a) to calculate claimant's AWW, because that method omitted any consideration of her concurrent earnings, and as such it was *1231 neither fair nor reasonable. On remand, we direct the JCC to determine claimant's AWW from both employments, pursuant to the method set out in section 440.14(1)(c) as a result of her status as a seasonal employee....

...d the term "during substantially the whole of 13 weeks" shall be deemed to mean during not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole. [2] Neither of the parties has argued that section 440.14(1)(b), the similar-employee method, has any applicability to this case....

...to October 28, 1979, which was the basis from which the employer/carrier had been paying temporary total benefits since the inception of the claim. The deputy commissioner's method of computing the claimant's average weekly wage is not sanctioned by Section 440.14, Florida Statutes (1979), because the period of time used to arrive at the average weekly wage figure, 13 weeks, began on the 25th week before the claimant's injury and ended on the 12th week before the injury. The correct averaging period is "substantially the whole of 13 weeks immediately preceding the injury." Fla. Stat. 440.14(1)(a) (e.s.)....

...Subparagraph (a) of that section defines "substantially the whole of 13 weeks" as meaning "not less than 90% of the customary full-time hours of employment" within the 13-week period. Therefore, because the claimant only worked one week during the statutorily provided 13-week period, Section 440.14(1)(a) is inapplicable. Additionally, Section 440.14(1)(b) — permitting the average weekly wage to be determined (if the employee did not work for 13 weeks before the injury) by comparing the wages of a similar employee who has worked the requisite period of time — is inapplicable because the record established that a "similar employee" did not exist. Nor did the claimant opt to be characterized as a "seasonal employee" pursuant to 440.14(1)(c), authorizing another means of calculating the average wage for such employee....

...ntemplated full-time weekly wage. In summary, it appears that the average weekly wage must be computed on a prospective basis when the legislatively prescribed retrospective methods, the "13-week" and "similar employee" methods, provided in Sections 440.14(1)(a) and (b) respectively, are not applicable. Averaging past earnings not coinciding with the consecutive 13-week period established in Section 440.14(1)(a) has been forbidden by the IRC....

...Thus, his prospective earnings represented the only applicable test to measure his average weekly wage. The order of the deputy commissioner is reversed and the cause is remanded with directions that claimant's average weekly wage be recomputed in accordance with the procedure prescribed by Section 440.14(1)(d). McCORD and ROBERT P. SMITH, Jr., JJ., concur. NOTES [1] Subsection (c) on its face appears to give the employee alone the option of being treated as a seasonal employee. This interpretation appears consistent with that given 440.14(1)(c) by Desfosses v....

...earned $3,494.00 during the 13 week period before his accident, based on earnings of: $591.00 from Randell, Inc.; $1,403.00 from Conway Construction Company; and $1,500.00 from Ms. Painter. Thus, the deputy determined that the AWW was $268.77. *177 Section 440.14(1)(a), Fla....

...His net income for the year of his injury exceeded $12,000. The Deputy Commissioner determined that the petitioner suffered a temporary total disability and was entitled to compensation at the rate of $1.38 per week in addition to other allowances. The Deputy Commissioner in his Order stated: "Under Section 440.14(5) the claimant was a part-time worker at the time of his injury....

...on his combined average weekly wage. See De Asis v. Fram Corporation, 78 R.I. 249, 81 A.2d 280; McCummings v. Anderson Theatre Co., 225 S.C. 187, 81 S.E.2d 348; County of Monterey v. Rader, 199 Cal. 221, 248 P. 912, 47 A.L.R. 359. Florida Statutes, Section 440.14(5), F.S.A....

...ent. Accordingly, the order appealed is affirmed. ROBERT P. SMITH and LARRY G. SMITH, JJ., concur. ON MOTION FOR REHEARING AND/OR CLARIFICATION WENTWORTH, Judge. The appellee/cross-appellant asserts in this motion for rehearing or clarification that § 440.14(5), Florida Statutes, should have been utilized in determining the claimant's average weekly wage....

...considered in arriving at his average weekly wages. However, the appellee/cross-appellant failed to present sufficient evidence to establish that the minor claimant's "wages should be expected to increase during the period of disability ..." [e.s.]; § 440.14(5), Florida Statutes, is thus inapplicable in the circumstances of this case, as presented before the judge of industrial claims....

...during the period at issue. We find no error in the deputy commissioner's ruling on this point. As for the issue on appeal regarding average weekly wage, the parties argued as to the applicability of the different methods of calculation set forth in Section 440.14, Florida Statutes (1977), as well as to factual details, such as the kind and value of certain fringe benefits....

...However, the alternative is institutionalization, and medical testimony indicated that it is in claimant's best interest to remain with his family if possible. Further relevant facts will be discussed while resolving particular issues. First, the deputy did not err in setting claimant's AWW. Under Section 440.14(1)(a), Florida Statutes, wages are calculated under the "13-week" method when the employee has worked not less than 90 percent of his customary full-time hours during the 13 weeks preceding the accident....

...ported this factual determination. Accordingly, the deputy properly calculated claimant's AWW under the contract-of-employment method of determining claimant's full-time weekly wage. Newell v. Seaboard Contractors, 473 So.2d 787 (Fla. 1st DCA 1985), § 440.14(1)(d), Fla....

...in order to determine what hours and wages were called for by his "contract of employment." Lavin argues that the deputy commissioner was required to use his actual wages for the ten-week period preceding the injury of 8 February. The E/C urges that Section 440.14(1)(a), Florida Statutes (1979), should have been used to compute the AWW because Lavin was employed "during substantially the whole of 13 weeks immediately preceding the injury......

...its during the eleventh, twelfth, and thirteenth weeks preceding the injury. These benefits clearly are not "wages" within the meaning of Section 440.02(12), Florida Statutes (1979). The deputy commissioner, therefore, was correct in refusing to use Section 440.14(1)(a) in computing Lavin's AWW....

...Lavin's contention that the deputy commissioner was bound to compute the AWW based on his actual wages for the ten-week period that he was on the job prior to his injury is likewise without merit. The deputy commissioner was at liberty to try to determine what was called for by Lavin's contract of employment pursuant to Section 440.14(1)(d), Florida Statutes (1979), since none of the other subsections of Section 440.14(1) were applicable....

...ition of wages contained in section 440.02(28), Florida Statutes (2007). We find that unreported income does not qualify as "wages earned and reported for federal income tax purposes" and cannot be the basis for calculating average weekly wage under section 440.14, Florida Statutes....

...gratuities to the extent reported to the employer in writing as taxable income received in the course of employment from others than the employer...." § 440.02(28), Fla. Stat. (emphasis added). Claimant also argues that section 440.02(28) has no impact on the proper interpretation of section 440.14. Relying on Vegas v. Globe Security, 627 So.2d 76 (Fla. 1st DCA 1993), Claimant asserts that it is debatable whether section 440.02(28) modifies section 440.14. While we recognize that section 440.14, which provides the method for calculating average weekly wage, contains no language suggesting it is calculated by using only income reported *358 to the IRS, we find Claimant's argument unpersuasive and Globe Security distinguishable. In Globe Security, the issue was whether concurrent income was included in calculating average weekly wage; this court held that the statute's 1990 amendment did not change the prior substantive law contained in section 440.14....

...l income tax purposes. We find that the more specific definition of wages in section 440.02(28) requires the conclusion that Claimant received no wages for calculating his average weekly wage; thus, the definition of average weekly wage contained in section 440.14 is irrelevant and certainly not dispositive....

...curity purposes."). Contrary to Claimant's argument that an employee must report his income to his employer, we find that Liccardo supports our view that, in order to demonstrate that Claimant's income constitutes wages under sections 440.02(28) and 440.14, Claimant is required to show that he reported his wages for federal income tax purposes....

...ed that the judge has excused such delay in payment of compensation pursuant to said Section 440.20(5). RULE 13 DETERMINATION OF AVERAGE WEEKLY WAGE AND WEEKLY COMPENSATION RATE (a) The phrase, "substantially the whole of thirteen weeks," as used in Section 440.14(1), Florida Statutes, F.S.A., shall be deemed to mean and refer to a constructive period of thirteen weeks as a whole, i.e., a consecutive period of ninety-one days, and "during substantially the whole of thirteen weeks" shall be deeme...

...ALLEN, Judge. The employer/carrier appeal, and the claimant cross-appeals, a workers' compensation order establishing the claimant's average *1091 weekly wage and awarding various benefits. We find that the claimant's average weekly wage, as determined under section 440.14(1)(d), Florida Statutes, should not have included an increase in the claimant's earnings after the time of the injury. Section 440.14(1), Florida Statutes, contains a general reference to wages "at the time of the injury," and section 440.14(1)(d) contemplates the prospective assessment of such full-time weekly wages. See Bruck v. Glen Johnson, Inc., 418 So.2d 1209 (Fla. 1st DCA 1982); Simpkins v. Watson, 397 So.2d 432 (Fla. 1st DCA 1981). The average weekly wage determination under section 440.14(1)(d) may be based on the claimant's actual earnings or the contract of employment....

...id this amount, subject to approval by the employer's board of directors. But the increase was not retroactively effective, and the necessary approval was not obtained until after the claimant was injured. The average weekly wage determination under section 440.14(1)(d) should therefore have been based on the salary of $200 per week which the claimant was earning at the time of the injury....

...to asbestos in 1974, or the commencement of disability in 1985. Section 440.151(1)(a), Florida Statutes (1974), provides that "disablement ... resulting from an occupational disease ... shall be treated as the happening of an injury by accident...." Section 440.14, Florida Statutes (1974), states that "the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation... ." Since section 440.151(1)(a) establishes disablement as the injury in instances of occupational disease, the commencement of such disability is the pertinent time for the average weekly wage determination pursuant to section 440.14....

...Complete evidence of the operating expenses and depreciation was not furnished to the deputy, and, although the claimant had not worked with the respondent *449 for thirteen weeks prior to the injury, a record of earnings of a similar member of the association was not presented at the hearing. Section 440.14(2), F.S.A., is very clear in its prescription that, if the injured party has not worked the thirteen weeks immediately preceding the injury, the wages of a similar individual in the same employment who has worked substantially all of thirteen weeks are to be used to make the determination of average weekly wages....

...Seaboard and his concurrent wages from Manpower. [1] Since the deputy did not reject claimant's testimony and Seaboard and its servicing agent did not present any conflicting evidence, claimant's average weekly wage should be determined pursuant to Section 440.14(1)(d), Florida Statutes. Where the "13-week" and "similar employee" methods of computing full-time average weekly wage are inapplicable, an employee's wages should be calculated according to his full-time weekly wages pursuant to Section 440.14(1)(d), Florida Statutes....

...The deputy also resolved the parties' dispute regarding claimant's average weekly wage. Since claimant had been working for only one day at the time of his injury, and there was no proof of any similar employee, the average weekly wage determination was based upon claimant's full-time weekly wages in accordance with section 440.14(1)(d), Florida Statutes....

...Claimant satisfied this initial burden in the present case by presenting testimony and documentary evidence as to the duration of his employment and his rate of pay. If a similar employee did exist, so as to warrant an average weekly wage determination in accordance with section 440.14(1)(b), Florida Statutes, employer/servicing agent could have produced evidence in this regard....

...The sole issue raised in this workers' compensation case is whether the judge of compensation claims erred as a matter of law by choosing an improper method by which to calculate claimant's average weekly wage. Because the nature of claimant's employment does not fit neatly into any of the alternatives afforded by section 440.14, Florida Statutes (1989), for computation of average weekly wage; and because we conclude that the method used by the judge of compensation claims to arrive at an average weekly wage was fair and reasonable under the circumstances; we affirm....

...employee is injured and does not include wages from outside or concurrent employment ..." (emphasis added). The parties and the judge of compensation claims recognized that none of the alternative methods for computing average weekly wage set out in section 440.14 really applied to the facts of claimant's employment as a substitute school bus driver. Claimant argued that, because he had not worked "during substantially the whole of 13 weeks immediately preceding the injury," the method set out in section 440.14(1)(a) could not be used. There were no "similar employees"; therefore, section 440.14(1)(b) could not be used. Claimant was not a "seasonal worker," so section 440.14(1)(c) could not be used....

...The judge of compensation claims accepted that argument, and found that claimant's average weekly wage (based upon the thirteen weeks preceding the accident) was $31.16. It is from this determination that claimant appeals. We agree that none of the alternative methods set out in section 440.14 for determining average weekly wage adequately covers claimant's employment as a substitute school bus driver....

...Clearly, as to that job, claimant "was a part-time worker at the time of the injury, ... had adopted part-time employment as his customary practice ... and ... under normal working conditions ... probably would have remained a part-time worker during the period *517 of disability." Section 440.14(1)(f), Fla. Stat. (1989). Moreover, claimant's counsel agreed that, because of the definition of "wages" in section 440.02(24), claimant's concurrent employment in his television repair business was irrelevant. Thus, it would appear that section 440.14(1)(f), relating to part-time employment, would apply....

...In performing that task, the judge of compensation claims is "not a cipher or a calculating robot, but ... a judge of [the] claimant's unique employment situation." Florida Cast Stone v. Dehart, 418 So.2d 1271, 1272 (Fla. 1st DCA 1982). In Silver Springs, Inc. v. Scardo, 408 So.2d 844 (Fla. 1st DCA 1982), we recognized that section 440.14(1)(f) did "not direct the [judge of compensation claims] to consider part-time status in any particular manner." Id....

...ethods of calculating a wage base, but for the rather obvious purpose of preventing a part-time worker from collecting compensation based on the wages of a full-time worker." Id. Accordingly, we concluded that "the only meaningful interpretation of [section 440.14(1)(f)] is that it should modify the application of each of the basic compensation methods described in [s]ection 440.14(1)(a)-(d)." Id....

...Given the unusual nature of claimant's employment as a substitute school bus driver, we believe that the method of computing claimant's average weekly wage applied by the judge of compensation claims was fair and reasonable to all parties; and that it does not conflict with legislative intent, as expressed in section 440.14....

...ZEHMER, C.J., concurs. ERVIN, J., dissents with written opinion. ERVIN, Judge, dissenting. In my opinion, the judge of compensation claims (JCC) erred by using a 13-week divisor to calculate claimant's average weekly wage (AWW). The 13-week method provided in Section 440.14(1)(a), Florida Statutes (1989), was obviously inapplicable, because the employee had not worked "substantially the whole of 13 weeks immediately preceding the injury." See also Gruber v....

...I find no statutory authorization permitting the computation of an employee's part-time AWW based upon weeks when claimant was not needed or called to work and, therefore, was paid no wages. I agree with the majority that the appropriate statutory method for determining claimant's AWW is section 440.14(1)(f), relating to part-time employment....

...age (AWW). There is competent substantial evidence to support the JCC's determination of a fair and reasonable average weekly wage, and accordingly, we affirm. The appellant agrees that the Judge of Compensation Claims (JCC) was correct in utilizing section 440.14(1)(d), Florida Statutes, rather than the thirteen week formula in subsection (a)....

...Jackson did not work substantially the whole of the thirteen weeks preceding his injury because the business was closed down for two weeks during which it was customarily open in other years. See, e.g., Spartan Electronics v. Russell, 513 So.2d 153 (Fla. 1st DCA 1987) (deputy commissioner correctly determined AWW under section 440.14(1)(d) by using the eleven weeks preceding the injury, when the thirteen week period specified by subsection (a) was inapplicable because the employee was laid off or the plant was closed for two of those thirteen weeks). Mr. Jackson asserts, however, that the JCC erred in the manner of calculating his AWW under section 440.14(1)(d)....

...ourteen week period preceding the claimant's injury, but omitted one week in which there were no earnings from the calculation of the average. The JCC has broad discretion in determining a fair and reasonable calculation of average weekly wage under section 440.14(1)(d). See, e.g., Mayflower Corp. v. Wilma O. Davis, 655 So.2d 1134 (Fla. 1st DCA 1994); Spartan Electronics v. Russell, 513 So.2d 153 (Fla. 1st DCA 1987) (deputy commissioner correctly determined AWW under section 440.14(1)(d) by using the eleven weeks preceding the injury, when the *1268 thirteen week period specified by subsection (a) was inapplicable because the employee was laid off or the plant was closed for two of those thirteen weeks); Bruck v....

...[2] The order does not in *1269 terms state a contrary conclusion, and I am unwilling to affirm a result necessarily based on such an implicit holding. I would agree with the order only so far as it finds that a full-time weekly wage in this case must be determined under Sec. 440.14(1)(d), F.S., from record evidence of actual earnings, including the wage statement and testimony....

...m both employer and employee that a 40-hour workweek had been normal and customary for claimant. The judge of compensation claims (JCC) appears to have been led into error by the failure of either party to argue a complete and correct application of Section 440.14, F.S., to the uncontroverted evidence presented....

...of the average weekly wage by simply dividing the total number of weeks worked into the wages paid. See Orange-Co of Florida v. Waldrop, 454 So.2d 724 (Fla. 1st DCA 1984). [3] The statutory language which must be applied here is the mandate of Sec. 440.14(1)(d), F.S., [4] to determine "the full-time weekly wages" (emphasis supplied) prospectively based on fair and reasonable evaluation of actual earnings....

...d total of 45 hours per week." (Emphasis supplied). 418 So.2d at 1211. The court reasoned that the three 9-hour days' wages shown on the statement required a projection into a five-day work week in order to achieve a full-time weekly wage under Sec. 440.14(1)(d), F.S....

...claimant on the basis of a "normal" 40 hour work week at his $11.00 hourly uncontroverted rate. I recognize that such a projection from averaged actual earnings would by no means be universally required in prospective determination of AWW under Sec. 440.14(1)(d)....

...secure employment. His practice of working part time while attending school caused a controversy over the proper calculation of AWW. The E/C maintained that appellee should be treated as a part-time worker, and his AWW adjusted downward, pursuant to Section 440.14(1)(f), Florida Statutes (1985). [1] The judge rejected this contention and calculated appellee's AWW by reference to the amount earned in the 13 weeks prior to his injury, without any *948 adjustment for part time status. See Section 440.14(1)(a)....

...1st DCA 1987); Juma Construction v. Villanueva, 437 So.2d 715 (Fla. 1st DCA 1983); Acosta Roofing Company v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981). [3] We also affirm the refusal of the judge to treat appellee as a part-time worker pursuant to Section 440.14(1)(f). Section 440.14(1)(a) directs that if a claimant has worked substantially all of the 13 weeks prior to his accident, as appellant has, then AWW shall be one-thirteenth of the total wages earned in that period. Where a claimant has been employed regularly for the 13-week period, his AWW must be calculated pursuant to Section 440.14(1)(a). Haynes v. Gordon Haynes State Certified General Contractors, Inc., 506 So.2d 471 (Fla. 1st DCA 1987). It follows that the judge acted correctly in applying Section 440.14(1)(a); the question is whether the judge should then have proceeded to modify the calculation pursuant to Section 440.14(1)(f). We have previously found that Section 440.14(1)(f) is meant as a directive to the judge to utilize that subsection to modify the application of each of the basic compensation methods described in Section 440.14(1)(a)-(d), so as to avoid the unfairness of a part-time worker collecting compensation based on the wages of a full-time worker....

...g physician expects that appellee will ultimately be left with a permanent impairment rating. Appellee's part-time status, on the other hand, is expected to continue only while he pursues his education. The judge therefore properly declined to apply Section 440.14(1)(f)....

...such further evidence as may be deemed necessary. In sum, we REVERSE and REMAND with directions that the judge recalculate the amount of appellee's TPD award. The award is in all other respects AFFIRMED. WENTWORTH and ZEHMER, JJ., concur. NOTES [1] Section 440.14(1)(f) states: If it [is] 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 w...

...d 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. [2] Section 440.14(1)(a) states in part: If the injured employee has worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding th...

...e garbage. For Thelma Iley, they built a utility shed and painted barn tops. *1362 The deputy commissioner concluded that claimant was a seasonal worker entitled to have his wage determined on his total earnings during calendar year 1985 pursuant to section 440.14(1)(c)....

...o require that all earnings which a seasonal worker has in a calendar year or fifty-two weeks preceding his accident be from covered employment would impose a burden on the claimant which would be unreasonable and not contemplated by Florida Statute 440.14(1)(c)....

...ensation base," Rollins Building Services, Inc. v. Thomas, 393 So.2d 665 (Fla. 1st DCA 1981), and that the decisions which hold that only wages earned in covered employment can be included in AWW should be applied to the seasonal worker provision in section 440.14(1)(c)....

...See also Tenneco, Inc. (Traveler's Insurance) v. Montana, 520 So.2d 615 (Fla. 1st DCA 1988); Anna Maria Fire Control District v. Angell, 528 So.2d 456 (Fla. 1st DCA 1988). None of these cases, however, has dealt with the seasonal worker provision in section 440.14(1)(c) and the precise issue before us. Consequently, it is necessary to analyze the underlying rationale of these cases to determine whether they should be applied to the seasonal workers provision in section 440.14(1)(c) as well....

...The claimant contended that the deputy commissioner and the full commission applied the wrong rule and statutory law because they excluded his earnings from his employment as a contractor and store owner in calculating his average weekly wage. The court, after quoting section 440.14(5) (as it read at that time), affirmed the full commission's ruling that "the claimant was not an employee in any other field of endeavor, therefore, his sole earnings as an employee was that of a volunteer fireman"; thus, claimant cou...

...is specifically exempted from the operation of the Workmen's Compensation Act. Even if it could be said that limiting the wages to those received from the employment in which he was working at the time of the injury as provided by sub-section (1) of Section 440.14 was not reasonable and fair and that sub-section (3) should be applied, it is our opinion that the phrase "full time weekly wages" as used in sub-section (3) must be construed within the context of the Workmen's Compensation Act as a whole....

...In 1972, shortly after the decision in Hill, the supreme court receded from its decision in J.J. Murphy & Son, stating that "we find that the frequently inequitable results arising from the rule of that case, prohibiting a combination of wages from concurrent dissimilar employment, are not required by Florida Statutes § 440.14, F.S.A., or any other section of the Workmen's Compensation Act." American Uniform & Rental Service v....

...hole man' not the capacity of the part time or full time worker," but felt compelled to follow the cited precedent. 393 So.2d at 666-67. In Randell, Inc. v. Chism, 404 So.2d 175 (Fla. 1st DCA 1981), this court reviewed the determination of AWW under section 440.14(1)(a), Florida Statutes (1979), and held that a construction worker's wages in his covered employment could not be aggregated with earnings as an independent contractor because the act explicitly excluded independent contractors from coverage, citing section 440.02(2)(d)1, Jaquette, and Rollins....

...520 So.2d at 615-16 (citations omitted). We are unable to discern from the foregoing decisions any clear and consistent legal theory that persuasively justifies excluding any of an employee's earnings from the calculation of AWW under the seasonal worker provision in section 440.14(1)(c), whether or not all such earnings were from employment in a class of work or industry covered by the workers' compensation act....

...could not be included in AWW calculations, were predicated on specific statutory exclusions of certain classes of employment from coverage under the act and were based on the court's construction of explicit language of the pertinent subsections of section 440.14....

...tory language and properly applied the rationale of the decisions of the supreme court. But we need not consider receding from any of those decisions at this time to decide this case, because none of them involved the construction and application of section 440.14(1)(c), defining AWW for seasonal workers. *1369 Section 440.14(1)(c), Florida Statutes (1985), states in part: If an employee is a seasonal worker and the foregoing method cannot be fairly applied in determining the average weekly wage, then the employee may use, instead of the 13 weeks immediatel...

...Hamner of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees. ZEHMER, Judge. This case is before us on appeal from an order of the deputy commissioner determining that appellant's average weekly wage (AWW) should be calculated under section 440.14(1)(f), Florida Statutes (1985), based on her earnings as a part-time worker....

...The deputy found that claimant was employed full-time for two weeks prior to her injury, but noted that "claimant knew at the time she was hired that she would receive less than full time wages *1149 pending the opening of the employer's full business activities." He awarded benefits based on claimant's part-time AWW. Section 440.14(1)(b) provides that, in the event a claimant has worked less than ninety percent of customary full-time employment for the thirteen weeks prior to the injury, the AWW shall be determined by the wages of a similar employee; [1] and if that method "cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used" pursuant to subsection 440.14(1)(d), unless the employee is found to be a part-time employee under subsection 440.14(1)(f)....

...e earliest opportunity. Because the three factors establishing part-time employment are not met in this case, the deputy's determination of AWW must be reversed. We therefore remand for determination of her AWW as a full-time employee under sections 440.14(1)(b) or (d), whichever the deputy should find appropriate. REVERSED and REMANDED. ERVIN and SHIVERS, JJ., concur. NOTES [1] Because claimant had worked full-time only two weeks, this section, rather than subsection 440.14(1)(a), would become the primary section to apply.

...Even if he had worked March 13th, claimant would have worked a Thursday and one other day between then and the following Wednesday. Under these circumstances we cannot say that the period used by the DC "immediately preceding the injury" satisfies the "consecutive period of 91 days" provision of section 440.14(1)(a), Fla....

...The record shows that claimant worked four days for another employer in a pay period that had a two day overlap with claimant's first pay period with Neil's Painting. Had the DC included this prior employment period, the "consecutive period of 91 days" requirement of section 440.14(1)(a) would have been satisfied....

...However, the deputy erred. We reiterate our holding in Coles that [w]here [as here] a claimant has been employed regularly for thirteen weeks prior to his compensable accident, his or her average weekly wage for that period shall be computed pursuant to Section 440.14(1)(a), Florida Statutes ... We therefore must remand this cause for recomputation of the claimant's average weekly wage pursuant to Section 440.14(1)(a)....

...The employer and servicing agent (E/SA) appeal a workers' compensation order awarding benefits based on an increased average weekly wage (AWW) due to concurrent employment, asserting that the judge of compensation claims (JCC) used an improper method of calculating the increased AWW under section 440.14(1), Florida Statutes (Supp.1990)....

...The claimant suggested dividing the total amount earned at Krystal by the number of weeks actually worked at Krystal and adding that figure to the original AWW. The E/SA advocated dividing by thirteen the total amount earned at Krystal and Wal-Mart during the thirteen-week period contemplated by section 440.14(1)(a)....

...en weeks earnings as a cashier plus three days prospective earnings as a painter. On appeal, the court found that her earnings for the thirteen-week period properly included her earnings as a painter for the one day she actually worked, holding that section 440.14(1)(a) was the proper method for calculating AWW where the concurrent employment is dissimilar, and citing Trainer and Watson....

...d both jobs and there is no evidence to suggest that he wouldn't have been able to continue working both jobs." The JCC denied the motion, noting his role of determining a fair and reasonable estimate of the claimant's earning capacity. The parts of section 440.14(1) pertinent to our discussion of the issue in this case have been renumbered, but have not been substantially altered over the past fifty years....

...cally produces demonstrably inequitable results." [4] The E/SA contend that Vegas controls this case and requires AWW based on concurrent employments to be calculated pursuant to the "simple, albeit arbitrary method" set out in the plain language of 440.14(1)(a), as opposed to the "equitable" approach urged by the claimant and adopted by the JCC....

...They assert that the method sanctioned by Vegas is to divide the total amount of wages earned in the concurrent employments during the thirteen weeks preceding the accident by thirteen, citing Quality Painting. In Vegas, the issue was not which part of section 440.14(1) applied to calculation of AWW in the case of concurrent earnings, but whether chapter 90-201, Laws of Florida, amending the definition of "wages" in section 440.02(24), affected the calculation of AWW under section 440.14(1). We held in that case that the amendment to the definition of "wages" in section 440.02(24) did not affect the calculation of Vegas' AWW under section 440.14(1), and further rejected the argument that chapter 90-201, Laws of Florida, overruled case law interpreting section 440.14(1)....

...In a footnote, we noted the apparent confusion regarding the question of which subsection applied to calculation of AWW in the case of concurrent earnings, and observed that in Quality Painting this court had stated that "in cases of dissimilar concurrent employment section 440.14(1)(a) will apply, and the combined wages approach should be utilized, if the claimant has worked for the requisite 13 weeks in one of the employments." We did not hold in Vegas that AWW must be calculated using section 440.14(1)(a) whenever concurrent earnings were involved. The claimant argues that the JCC properly construed section 440.14(1) in light of the purpose of the Workers' Compensation Act as noted in Trainer, that use of section 440.14(1)(a) under these circumstances is not mandated by any prior case law, and that the JCC exercised sound judicial discretion in establishing an AWW that fairly approximates his demonstrated pre-injury earning capacity....

...He asserts that concepts of fairness are inherent in the case law addressing AWW calculation, citing Christian v. Carolina Freight Carrier Corp., 571 So.2d 524 (Fla. 1st DCA 1990); Edwards v. Caulfield, 560 So.2d 364 (Fla. 1st DCA 1990); and Newell v. Seaboard Contractors, 473 So.2d 787 (Fla. 1st DCA 1985). He contends that section 440.14(1)(d) allows the JCC discretion to reach an AWW that fairly approximates the claimant's pre-injury full-time weekly wage earning capacity when the other statutory methods of determining AWW "cannot reasonably and fairly be applied." He...

...to the fallacy of supposing that compensation theory is necessarily satisfied when a mechanical representation of this claimant's own earnings in some arbitrary past period has been used as a wage basis. Our survey of the Florida case law construing section 440.14(1) indicates that the *140 Industrial Relations Commission (Commission) and the courts have for the most part maintained a clear understanding not only of the legislative intent regarding AWW as a fair approximation of what the injured...

...teen-week period by thirteen, noting that this would be ... a realistic representation of his average weekly wage for substantially full-time employment, i.e., employment "during substantially the whole of thirteen weeks" within the contemplation of Section 440.14(1), supra. Thus, resort to the "wages of a similar employee" or "the fulltime weekly wages of the injured employee" as provided in subsections (2) and (3) of said Section 440.14 is unnecessary and unauthorized since the method provided in subsection (1) thereof can "reasonably and fairly be applied" by treating the two related concurrent employments as one employment for the purpose of determining claimant's average weekly wage....

...It appears to us that, under the peculiar circumstances presented in Watson, the method used by the Commission, averaging the earnings from the previous thirteen weeks of employment as if the concurrent employments constituted one employment, complied with the legislative purpose of section 440.14(1) to reasonably approximate the probable future earning capacity of the claimant if he had not been injured. However, the method used by the Commission does not appear to be the method contemplated by the legislature when it enacted the "13-week provision," now designated as section 440.14(1)(a)....

...Having carefully examined the statutory scheme in its entirety, we are convinced that the method used by the Commission in Watson more correctly came under the legislature's catchall provision, authorizing determination of AWW based on the claimant's "full-time weekly wages," now designated as section 440.14(1)(d). The plain language of section 440.14(1) indicates that the legislature intended each of the first three subsections to apply to specific fact situations. Subsection 440.14(1)(a) was intended to apply when the injured employee has been continuously employed full-time in the same employment for the thirteen weeks immediately preceding the industrial accident, whether for the same *141 employer or for successive employers....

...rrent over the whole or part of the thirteen weeks immediately prior to the industrial accident. The AWW of an injured employee who was engaged in concurrent employments during any part of the thirteen week period was intended to be determined under section 440.14(1)(d). The method to be used in that determination depends upon the particular employment circumstances and was intended by the legislature to be determined by the JCC in the exercise of the discretion vested by section 440.14(1)(d)....

...Alexander, 105 So.2d 927 (Fla. 3d DCA 1958); Wilson v. City of Haines City, 2 FCR 361, approved, 97 So.2d 208 (Fla. 2d DCA 1957). In Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla.1961), the supreme court quoted the "reasonably and fairly" language of section 440.14(3), now designated section 440.14(1)(d), and noted that this section ......

...to be one-thirteenth of the total amount of wages actually earned in both employments during the thirteen weeks immediately preceding the injury." The quote from Watson included in the court's Trainer decision includes the Commission's reference to section 440.14(1), now section 440.14(1)(a)....

...s arguable that, in the absence of evidence that the claimant in Trainer did not intend to continue in the concurrent part-time employment, the AWW should have been determined based on "the full time weekly wages of the injured employee" pursuant to section 440.14(3), now section 440.14(1)(d), based on the wages he was actually earning at the time he was injured....

...e applied to attain the "fair and reasonable" AWW intended by the *142 legislature in circumstances similar to those of the instant case. The latter decision read Trainer as applying the "full-time weekly wages" catchall provision, now designated as section 440.14(1)(d)....

...The claimant in that case worked full-time at K-Mart and parttime at Sears. The court affirmed the deputy commissioner's method of determining AWW: The deputy's ruling combining wages from both sources in determining claimant's average weekly wage is entirely consistent with the supreme court's construction of section 440.14(3), Florida Statutes (1969) [now § 440.14(1)(d), Fla....

...Trainer, 262 So.2d 193 (Fla.1972). Moreover, the deputy gave proper credit for subsequent wages earned at Sears, which increased substantially after claimant was unable to return to the more demanding work at K-Mart. However, a year later, in Quality Painting, this court held that section 440.14(1)(a) was the proper method for calculating AWW where the concurrent employment is dissimilar, citing Trainer and Watson....

...It is arguable that this case presented another "peculiar circumstance" in which the method used in Watson would be considered "fair and reasonable," but we conclude that the method used in Quality Painting was contemplated by the legislature under section 440.14(1)(d), not section 440.14(1)(a). Our holding in Vegas that the 1990 amendment to the statutory definition of "wages" in section 440.02(24) did not affect calculation of AWW under section 440.14(1) was not limited to a particular subsection of that statute, but because Vegas referenced the method of calculation used in Quality Painting, we hereby clarify that the term "full-time weekly wages of the injured employee" in section 440.14(1)(d) is a term of art, the meaning of which was not altered by chapter 90-201, Laws of Florida. In addition to those already cited in this opinion, other cases from this court demonstrate its understanding that the legislature intended exercise of the workers' compensation adjudicator's discretion under the catchall provision of section 440.14 to determine a "fair and reasonable" AWW....

...1st DCA 1982); Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981); Simpkins v. Watson, 397 So.2d 432 (Fla. 1st DCA 1981); Penuel v. Central Crane Service, 232 So.2d 739 (Fla.1970). In reviewing such a determination, this court must first consider whether section 440.14(1)(d) is applicable (i.e., whether any of the preceding subsections may "fairly and reasonably" be applied given the particular facts of the case), and then whether the JCC has properly exercised the discretion afforded by that section...

...s probable future earning loss. Under the circumstances presented in this case, we find that the JCC properly exercised his discretion in calculating the claimant's AWW based on his actual full-time wages at the time he was injured, as authorized by section 440.14(1)(d) when the other methods "cannot reasonably and fairly be applied." The record indicates that the AWW determined by the JCC represents the claimant's true earning capacity if he had not been injured (i.e., he would have continued t...

...es indicated). We AFFIRM the JCC's order, but certify to the Florida Supreme Court, as a matter of great public importance, the following question: *143 Whether American Uniform & Rental Service v. Trainer, 262 So.2d 193 (Fla. 1972), mandates use of section 440.14(1)(a), Florida Statutes, to determine average weekly wage in all cases where the claimant has worked in one employment for substantially the whole of thirteen weeks prior to the industrial accident, but has worked in a concurrent employment for only a portion of the thirteen-week period, by combining the total earnings in both employments and dividing by thirteen, or whether in such cases the legislature intended use of section 440.14(1)(d) to determine average weekly wage as a fair and reasonable approximation of "the full-time weekly wages of the injured employee." ERVIN and DAVIS, JJ., concur....

...We have for review Wal-Mart Stores v. Campbell, 694 So.2d 136 (Fla. 1st DCA 1997), in which the district court certified the following question to be of great public importance: Whether American Uniform & Rental Service v. Trainer, 262 So.2d 193 (Fla. *437 1972), mandates use of section 440.14(1)(a), Florida Statutes, to determine average weekly wage in all cases where the [workers' compensation] claimant has worked in one employment for substantially the whole of thirteen weeks prior to the industrial accident, but has worked in a concurrent employment for only a portion of the thirteen-week period, by combining the total earnings in both employments and dividing by thirteen, or whether in such cases the legislature intended use of section 440.14(1)(d) to determine average weekly wage as a fair and reasonable approximation of "the full-time weekly wages of the injured employee." Id. at 143. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We adhere to our decision in Trainer, which applies section 440.14(1)(a) [1] to calculations of average weekly wage (AWW) in concurrent employment cases. We continue to find that section 440.14(1)(a), Florida Statutes, sets forth the proper formula for use of a judge of compensation claims (JCC) in determining AWW in all cases where a claimant has worked in one employment for substantially the whole of thirteen weeks prior to an industrial accident but has worked in a concurrent employment for only a portion of the thirteen-week period. The district court's certified question is based upon its conclusion in this case that section 440.14(1)(d), Florida Statutes (1989), [2] applied to the AWW in a concurrent employment claim....

...The district court found that a JCC has discretion to determine how to calculate the AWW of a claimant who has been engaged in concurrent employment for a portion of the thirteen-week period preceding a workplace accident other than by using the method set forth in section 440.14(1)(a), which calculates the AWW by dividing by thirteen the total wages from all employment during the thirteen weeks immediately preceding the injury....

...W. Wal-Mart advocated calculating the AWW by adding together the total amount earned at Krystal and Wal-Mart during the thirteen-week period and then dividing by thirteen. Wal-Mart contended that its recommended method of calculation was mandated by section 440.14(1)(a), Florida Statutes (1989), and this Court's decision in Trainer....

...The district court reasoned that the JCC's determination of the AWW represented Campbell's true earning capacity if he had not been injured and had continued to work full-time for Wal-Mart and part-time for Krystal at the wages indicated. Id. Wal-Mart argues here that the plain language of section 440.14(1)(a) describes the claimant's concurrent employment in the phrase "whether for the same or another employer" and provides a formula that applies to the concurrent earnings circumstances *438 in this case. [3] Thus, Wal-Mart reasons that section 440.14(1)(a) provides the basis for calculating concurrent earnings for inclusion in the AWW of a claimant who has worked in a concurrent employment for only a portion of the thirteen-week period preceding an industrial accident and that resort to section 440.14(1)(d) is therefore not sanctioned by the plain meaning of the statute....

...loyments during the thirteen weeks preceding his injury is a realistic representation of his average weekly wage for substantially full-time employment, i.e., employment `during substantially, the whole of thirteen weeks' within the contemplation of Section 440.14(1), supra." Trainer, 262 So.2d at 196 (footnotes omitted). As we held in Trainer and according to our reading of the statute's plain language, concurrent employment calculations are covered by section 440.14(1)(a). Therefore, no basis exists for resorting to section 440.14(1)(d). We disagree with the district court's interpretation that the legislature intended to apply section 440.14(1)(a) only "when the injured employee has been continuously employed full-time in the same employment for the thirteen weeks immediately preceding the industrial accident, whether for the same employer or for successive employers." Id....

...We believe that the legislature intended to provide such a fixed method of calculation for these concurrent employment situations and that the method provided determines a fair and reasonable AWW. Accordingly, we answer the certified question by holding that our decision in Trainer mandates the application of section 440.14(1)(a) in concurrent employment circumstances to determine the AWW....

...majority's opinion violates the policy of ensuring a fair and reasonable wage determination which reflects future earnings. As the First District expressly noted, it is well established that a JCC is purposefully vested with broad discretion to use section 440.14(1)(d), the "catch-all" provision, to ensure a fair and just AWW by utilizing a formula other than the one provided in section 440.14(1)(a)....

...AWW. The majority opinion here, by requiring a "fixed method of calculation," runs contrary to the sound established policy of allowing JCCs broad discretion in determining a fair and reasonable weekly wage, as well as ignoring the plain meaning of section 440.14(1)(d), which permits alternative methods of calculation where justice so requires....

...s probable future earning loss. Under the circumstances presented in this case, we find that the JCC properly exercised his discretion in calculating the claimant's AWW based on his actual full-time wages at the time he was injured, as authorized by section 440.14(1)(d) when the other methods "cannot reasonably and fairly be applied." The record indicates that the AWW determined by the JCC represents the claimant's true earning capacity if he had not been injured (i.e., he would have continued to work full-time for Wal-Mart and part-time for Krystal, at the wages indicated). Wal-Mart, 694 So.2d at 142. KOGAN, C.J., and SHAW, J., concur. NOTES [1] Section 440.14(1)(a), Florida Statutes (1989), provides in relevant part: If the injured employee has worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks. [2] Section 440.14(1)(d), Florida Statutes (1989), provides in relevant part: If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used.......

...Morris, 393 So.2d 664 (Fla. 1st DCA 1981). We remand the case, however, for consideration of whether any temporary partial wage-loss benefits may be due after October 21. *845 The deputy also incorrectly calculated claimant's average weekly wage under Section 440.14(1), Florida Statutes (1979)....

...Waymire v. Florida Industrial Relations Commission, 174 So.2d 404, 407 (Fla. 1965). Therefore claimant's average weekly wage should be calculated by averaging the wages she did earn during the 13-week period, full- and part-time. We recognize that § 440.14(1)(a) does not in its unvarnished state directly apply to claimant, because that section is specifically applicable to the worker who worked substantially full-time for 13 weeks before the injury. But where a part-time worker has worked in that worker's typically part-time fashion for substantially all of those 13 weeks, we see no reason why the average wage should not be calculated in the way prescribed by Section 440.14(1)(a). That would appear to be a proper application of Section 440.14(1)(f), which says a part-time work status should be considered in arriving at an average weekly wage. If a 13-week work history exists, the statute, in our opinion, directs the deputy to use it as the wage base period with any other appropriate adjustments in its use needed for part-time work status. From our study of the legislative history of Section 440.14(1) and cases interpreting it, it seems that the part-time worker provision was not added to displace the basic preferred methods of calculating a wage base, but for the rather obvious purpose of preventing a part-time worker from collecting compensation based on the wages of a full-time worker....

...Gibbs, 137 So.2d 553, 560 (Fla. 1962). The part-time provision was added to the act in 1953 after the Supreme Court used one of the basic calculation methods for full-time workers to pay compensation based on full-time wages to a part-time worker. Gibbs, supra . Since § 440.14(1)(f) and its predecessor do not direct the deputy to consider part-time status in any particular manner, the only meaningful interpretation of the provision is that it should modify the application of each of the basic compensation methods described in Section 440.14(1)(a)-(d)....

...Apparently relying upon this testimony, the deputy commissioner set the claimant's average weekly wage at $250 per week. Where a claimant has been employed regularly for thirteen weeks prior to his compensable accident, his or her average weekly wage for that period shall be computed pursuant to Section 440.14(1)(a), Florida Statutes (1977)....

...Therefore, the deputy has erroneously relied upon the claimant's testimony regarding his monthly wages for 1977, especially since the record indicates that he was unable to work at his usual pace after the accident. We therefore must remand this cause for a recomputation of the claimant's average weekly wage pursuant to Section 440.14(1)(a)....

...The employee testified that she was hired to work 40 hours a week, there being absolutely no other testimony, I accept that as the contract rate. In other words, $3.67 for a 40 hour week or $146.80, giving her a compensation rate of $92.87 per week. Clearly, the deputy applied Section 440.14(1)(d), Florida Statutes (1983), which provides for the determination of an *725 average weekly wage based on the full-time weekly wages of the injured employee....

...Because employer's plant was either closed or appellee was laid off during two of the 13 weeks prior to her accident, the order incorrectly states in computing her average weekly wage that she worked substantially the whole of the 13 weeks prior to her accident, citing section 440.14(1)(a), Florida Statutes. However, the deputy commissioner properly calculated the average weekly wage pursuant to section 440.14(1)(d) by relying upon appellee's full time weekly wages for the 11 weeks prior to her injury. Although section 440.14(1)(b) provides that where an injured employee has not worked substantially the whole of the 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially all of such 13 weeks shall be used, no evidence of a similar employee's wages was submitted....

...Finding that claimant was concurrently employed when injured, the deputy commissioner determined claimant's aww based on her combined employments. The e/c contend that since claimant had only one job on the date of the accident, the concurrent employment rule embodied in section 440.14, Florida Statutes (1982 Supp.), is inapplicable in the present case, citing American Uniform & Rental Service v....

...WOLF, Judge. Efficient Systems, Inc. and The Claims Center (E/C) appeal from an order of the judge of compensation claims (JCC) determining claimant's average weekly wage (AWW). The issue raised by appellant is whether the judge incorrectly interpreted section 440.14(1)(d) by utilizing weekly wages from a prior employer in calculating the claimant's average weekly wage....

...Both parties further stipulated that neither ESI nor DeSear's had any similar employees and that claimant was not a seasonal worker. A hearing was held on the sole issue of the appropriate calculation of claimant's average weekly wage. Both parties stipulated and the JCC found that section 440.14(1)(d), Florida Statutes (1991), was the proper section to be used to calculate claimant's average weekly wage....

...present AWW, the JCC relied on the cases of Deutscher v. Cloverleaf, 4 F.C.R. 93 (1959), and Strickland v. Neil's Painting, 545 So.2d 333 (Fla. 1st DCA 1989). *345 To determine average weekly wage, one must apply one of the subsections contained in section 440.14(1), Florida Statutes (1989). Section 440.14(1)(d) is the section both parties agree applies to the claimant. Section 440.14(1)(a) applies only in cases in which the employee has worked "substantially the whole of 13 weeks immediately preceding the injury". Both parties in the case at bar agree that the claimant did not work substantially the whole of 13 weeks. Section 440.14(1)(b) allows for the wages of a similar employee to be used in calculating average weekly wages for employees who have not worked substantially the whole 13 weeks immediately preceding the injury. Both parties stipulated that neither company had any similar employees. Section 440.14(1)(c) only applies to seasonal employees, which claimant was not. Section 440.14(1)(d), which applies here, states as follows: (d) If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used, except as otherwise provided in paragraph (e) or (f)....

...In determining the value of full-time weekly wages pursuant to paragraph (d), past wages from prior employment are not necessarily probative. The cases relied on by the JCC in support of utilizing past wages from another employer in calculating average weekly wages, pursuant to section 440.14(1)(d), Florida Statutes (1990), are inapplicable. In both Deutscher, supra, and Strickland, supra, the question was whether past employment could be utilized to determine the applicability of section 440.14(1)(a), Florida Statutes, and its predecessor....

...McConnaughhay of Karl, McConnaughhay, Roland & Maida, P.A., Tallahassee, for appellees. MILLS, Judge. Rivers appeals from a workers' compensation order determining average weekly wage (AWW) and denying attorney's fees. He contends the deputy erred in calculating AWW pursuant to Section 440.14(1)(b), Florida Statutes (1983), and in denying attorney's fees based on the employer/carrier's alleged bad faith. We agree on both issues and reverse. The deputy calculated AWW for the period following the industrial accident of 8 August 1983 based on the wages of a similar employee as provided in Section 440.14(1)(b)....

...He found Rivers did not work for the 13 weeks preceding the industrial accident. The wages of a similar employee should be used to determine AWW only if the injured employee has not worked "during substantially the whole of 13 weeks immediately preceding the injury." Section 440.14(1)(b). "Substantially the whole of 13 weeks" is defined in Section 440.14(1)(a), Florida Statutes (1983), as "not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole." Although Rivers worked less than 90 percent of the total working days within the 13 week period, the record shows he worked more than 90 percent of the total customary full-time hours of employment within the 13-week period. The deputy should have calculated AWW pursuant to Section 440.14(1)(a) rather than Section 440.14(1)(b)....

...e of disability total in character but temporary in quality, 66 % percent of the average weekly wages shall be paid to the ■ employee during the continuance there-of, not to exceed 104 weeks except as provided in this subsection, s. 440.12(1), and s. 440.14(3).[ 4 ] Once the employee reaches the maximum number of weeks allowed, or the employee reaches the date of maximum medical improvement, whichever occurs earlier, temporary disability benefits, shall cease and the injured worker’s permanent impairment •shall be determined....

...We find that claimant's average weekly wage properly includes her earnings for the one day which she actually worked as a painter, but should not include any anticipated future earnings. Since claimant had been employed for 13 weeks as a cashier her average weekly wage should be established pursuant to section 440.14(1)(a), Florida Statutes, by utilizing the combined wages actually earned in both employments during the 13 weeks immediately preceding the industrial injury. American Uniform & Rental Service v. Trainer, 262 So.2d 193 (Fla. 1972); see also, Watson v. Merrill-Stephens Dry Dock & Repair Co., 1 FCR 355 (1956). While section 440.14(1)(a) refers to the employment in which the claimant is working at the time of the injury, American Uniform & Rental Service v. Trainer, supra , indicates that in cases of dissimilar concurrent employment section 440.14(1)(a) will apply, and the combined wages approach should be utilized, if the claimant has worked for the requisite 13 weeks in one of the employments. Newell v. Seaboard Contractors, 473 So.2d 787 (Fla. 1st DCA 1985), which mandates a different approach when section 440.14(1)(a) is inapplicable, does not impact the present case since claimant maintained concurrent employment and had worked as a cashier for the 13 weeks immediately preceding her injury....

...Claimant's average weekly wage should therefore include her earnings as a cashier, and her earnings for the one day of employment as a painter, but not any anticipated future earnings. In addition to her salary claimant also received fringe benefits in her employment as a cashier. In accordance with section 440.14(3), Florida Statutes, the deputy reduced claimant's average weekly wage for that period of her disability during which she continues to receive the fringe benefits. Employer/servicing agent contend that a reduction should also be made when the fringe benefits cease during claimant's seasonal layoff. However, section 440.14(3) contains no limitation in this regard and claimant has not elected to be treated as a seasonal worker pursuant to section 440.14(1)(c), Florida Statutes. In the circumstances presented claimant's average *1174 weekly wage is properly determined based upon her earnings during the 13 weeks immediately preceding the injury, and section 440.14, Florida Statutes, provides no basis to discount fringe benefits for a seasonal suspension outside of this period....

...The claim in this case sought reimbursement for underpayment on the basis of miscalculation of claimant's average weekly wage. The e/c had based claimant's TTD benefits on an average weekly wage of $115.75. [3] On appeal, they assert that their figure is proper under § 440.14(1)(f), the part-time worker provision. The deputy found, without explanation, that claimant's average weekly wage was $115.75. We therefore assume that the deputy was applying § 440.14(1)(f), but find nothing in the record to substantiate the necessary predicate for application of that section, infra....

...r normal working conditions he probably would have remained a part-time worker during the period of disability . .. [and that he] [3] customarily works less than the full-time hours or full-time workweek of a similar employee in the same employment. § 440.14(1)(f), Fla....

...On the contrary the bare but unrefuted evidence is that he had adopted full-time work to the extent reflected by his schedule during the five weeks preceding the accident. [6] Therefore, although the claimant could clearly have presented clearer or more specific evidence in order to assist the deputy, the application of § 440.14(1)(f) was error, and the record supports claimant's asserted full-time weekly wage of $202.50. Florida Cast Stone v. Dehart, 418 So.2d 1271 (Fla. 1st DCA 1982); § 440.14(1)(d)....

...g showing that an opportunity for correction was accorded the deputy. [3] The sum of all of claimant's weekly earnings divided by thirteen comes to $115.75. [4] Because claimant did not work substantially the whole of 13 weeks prior to the accident, § 440.14(1)(a) is inapplicable....

...Therefore subsections (1)(b), (c), and (e) are also inapplicable. [5] The sum of claimant's earnings for the last five weeks divided by five equals the claimed wage of $202.50. The averaging of wages for a period less than 13 weeks is not, of course, a correct application of § 440.14(1)(a), but may in the absence of conflicting evidence suffice to show the full-time wages of a claimant under subsection (d) when other methods cannot reasonably be applied....

...1971)], ruling that concurrent earnings from such employments could not be included in AWW calculations, were predicated on specific statutory exclusions of certain classes of employment from coverage under the act and were based on the court's construction of explicit language of the pertinent subsections of section 440.14....

...y be covered under the act have properly construed the statutory language and properly applied the rationale of the decisions of the supreme court. Iley, 531 So.2d at 1368 (footnote omitted). Because Iley involved the construction and application of section 440.14(1)(c), which defined the AWW for seasonal workers, and did not involve a question of coverage under the act because of an employer's limited number of employees, the Iley court's criticism of Randell was merely dicta....

...Under the doctrine of stare decisis, lower courts are bound to adhere to the rulings of higher courts when considering similar issues even though the lower court might believe the law should be otherwise. State v. Dwyer, 332 So.2d 333 (Fla. 1976); Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). The calculation of the AWW under section 440.14(1)(a) and (b), Florida Statutes (1993), is based upon "employment" during substantially the whole of thirteen weeks immediately preceding the injury....

...f first impression. The e/c argued that it would be inequitable and tantamount to double recovery if the $36.13 retirement contribution is added to claimant's AWW when she is already receiving over $540.00 per month in retirement benefits. They cite section 440.14(3), Florida Statutes, for the proposition that fringe benefits, including vested pension and retirement benefits, should not be included in AWW so long as the benefits continue to be provided....

...benefits are within the statutory definition of "wages." § 440.02(21), Fla. Stat., (1987); Buckhalter v. University of Florida, 411 So.2d 1327 (Fla. 1st DCA), pet. rev. denied, 418 So.2d 1278 (Fla. 1982). These benefits are also within the scope of section 440.14(3) in that they can be excluded from AWW to the extent that the e/c continues to provide them....

...ring her present temporary total disability status, that the employer is continuing to provide the benefit. Therefore, the employer may exclude the value of its contributions to retirement from the calculation of claimant's average weekly wage under section 440.14(3) so long as such consideration is provided......

...Should the e/c argue that because claimant's retirement was voluntary she should not be rewarded with the $36.13 addition to AWW and its resultant increase in wage loss benefits, we would observe that such an argument is irrelevant to an AWW computation under section 440.14(3), but may have some application if we were dealing with wage loss under section 440.15(3)(b) and (2)....

...In sum, we hold that the benefit here in question was part of claimant's compensation package when she was employed and must be included in AWW to insure its provision in the future. We find the e/c's argument that they continue to provide the benefit in the form of FRS payments to be without merit. While the language of section 440.14(3) makes no specific provision for voluntary retirement, neither does it suggest that such a distinction as the e/c urge is in order....

...December 20, 1996. Gloria Pomerantz, Fort Lauderdale, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant. *67 Jack A. Weiss of Conroy, Simberg, Lewis & Ganon, P.A., West Palm Beach, for Appellees. BENTON, Judge. On the purported authority of section 440.14(1)(d), Florida Statutes (1995), the order under review puts Jean Mauranssi's average weekly wage at $328.34....

...Mauranssi contends that the judge of compensation claims erred in basing this decision solely on wages the claimant had earned in the past, instead of making a prospective determination that took into account the raise he received a month before his accident. We agree with this contention, and reverse. Section 440.14, Florida Statutes (1995), prescribes methods for calculating a claimant's average weekly wage....

...dered 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. § 440.14(1), Fla.Stat....

...ined as a consecutive period of 91 days, and the term "during substantially the whole of 13 weeks" shall be deemed to mean during not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole. § 440.14(1)(a), Fla.Stat....

...(1995). Since Mr. Mauranssi did not work "substantially the whole of 13 weeks immediately preceding the injury," subsection (1)(a) does not control. Because the parties stipulated that, as a factual matter, there was no similarly situated employee, section 440.14(1)(b), Florida Statutes (1995), does not apply....

...Finally, the judge of compensation claims determined subsection (1)(f) to be inapplicable in finding that Mr. Mauranssi was not a part-time worker. There was testimony that the claimant worked forty hours or more a week unless inclement weather prevented. This statutory process of elimination leads to the conclusion that section 440.14(1)(d), Florida Statutes (1995), is the controlling provision....

...ked in a single week. He was in fact paid time-and-a-half for ten and a half hours worked during the week of September 5, 1994. Mr. Mauranssi also worked nine hours on each of the two days immediately preceding the accident, earning a total of $180. Section 440.14(1)(d), Florida Statutes (1995), requires that "full-time weekly wages of the injured employee" be the standard for calculating average weekly wages....

...rnings on the job where the claimant is working at the time of the injury." Efficient Sys., Inc. v. Florida Dep't of Labor and Employment Sec., 624 So.2d 343, 345 (Fla. 1st DCA 1993). Determinations under subsection (1)(f) are similarly prospective. Section 440.14(1)(d), Florida Statutes (1995), has been construed to give the judge of compensation claims considerable latitude in choosing an appropriate retrospective time period to utilize as a basis for predicting a claimant's prospective average weekly wage. The JCC has broad discretion in determining a fair and reasonable calculation of average weekly wage under section 440.14(1)(d). See, e.g., Mayflower Corp. v. Wilma O. Davis, 655 So.2d 1134 (Fla. 1st DCA 1994); Spartan Electronics v. Russell, 513 So.2d 153 (Fla. 1st DCA 1987)(deputy commissioner correctly determined AWW under section 440.14(1)(d) by using the eleven weeks preceding the injury, when the thirteen week period specified by subsection (a) was inapplicable because the employee was laid off or the plant was closed for two of those thirteen weeks); Bruck v....

...prospectively. " Efficient Sys., 624 So.2d at 345 (emphasis supplied). "[T]he average weekly wage must be computed on a prospective basis when the legislatively prescribed retrospective methods, the `13-week' and `similar employee' methods, provided in Sections 440.14(1)(a) and (b) respectively, are not applicable." Simpkins v....

..."When applying subsection (1)(d) ... wages must be determined prospectively." Adart South Polybag Mfg., Inc. v. Goldberg, 495 So.2d 826, 828 (Fla. 1st DCA 1986). Nothing in our decision in [ City of Miami v. ] Fernandez [603 So.2d 1346 (Fla. 1st DCA 1992)] suggests that if subsection 440.14(1)(d) properly applies, the judge of compensation claims cannot consider the claimant's prospective wages....

...The parties to this litigation stipulated to the exact amount of average weekly wage in 1981 thus obviating the need for proof on this issue. Average weekly wage was, nevertheless, an issue because the compensation rate could not have been set without it. Section 440.14(1), Florida Statutes (1977), provided that "......

...r things, the value of accrued annual leave, in-line-of-duty disability benefits, and uniforms (smocks). Employer and Carrier raise four issues on appeal. First, they contend that in determining Claimant's AWW, the judge erred in failing to apply subsection 440.14(1)(a), Florida Statutes (Supp.1988)....

...the time of the accident and "double dipping" results when the judge includes in AWW accrued leave earned during the 13 weeks immediately preceding the accident and also annual leave paid during that period. We hold, as did the judge below, that subsection 440.14(1)(a) is inapplicable to the facts in this case....

...There has been no challenge to the judge's finding that neither subsection (1)(b) nor (1)(c) applies. Accordingly, the judge properly used a base rate of $175.60 (40 hours × *506 $4.39 hourly rate) for AWW purposes, plus includable fringe benefits. § 440.14(1)(d), Fla....

...This appeal followed. On appeal, the E/C contend that they submitted the only competent evidence of earnings for the 13-week period preceding the accident and that the judge was required to use that evidence to determine the AWW under the method provided in Section 440.14(1)(a), Florida Statutes....

...Further, the stubs he produced were contrary to and belied his own testimony. As a result, there is no competent, substantial evidence which accords with logic and reason to support a determination of AWW. [6] Finally, we address the question of the proper application of Section 440.14(1)(a), Florida Statutes, which sets out the method of determining AWW where the claimant has worked more than 13 weeks prior to the accident as follows: "[the] average weekly wage shall be one-thirteenth of the total amount of wages ea...

...Florida Industrial Commission, Fla.App.1959, 110 So.2d 455 . The Adams case is clearly distinguishable in that in the findings of fact of the deputy commissioner in the Adams case there was no finding as to whether the method provided in subsection (1) of Section 440.14 Florida Statutes (1957) F.S.A., could be “reasonably and fairly” applied....

...ecause his employer failed to provide full time work for him. That neither the claimant nor a similar employee has worked in said employment during substantially the whole of 13 weeks immediately preceding said injuries. That the methods provided by Section 440.14(1) and Section 440.12(2) cannot reasonably and fairly be applied....

...Claimant, Robert Stubbs, challenges a final order of the Judge of Compensation Claims (JCC) denying claimant's request for an increase in workers' compensation benefits. The issue before us is whether the JCC erred in denying claimant's request for an average weekly wage (AWW) increase pursuant to section 440.14(1), Florida Statutes (2006)....

...weeks preceding his injury. The standard of review in a workers' compensation case as to a question of law is de novo. See Mylock v. Champion Int'l 906 So.2d 363, 365 (Fla. 1st DCA 2005). This case involves the parties' differing interpretations of section 440.14(1), Florida Statutes (2006), which delineates how to compute a claimant's AWW, and provides in pertinent part: (1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee on the date of the accide...

...The E/C asserts that, because claimant had been employed in his position 13 weeks prior to the accident and because claimant had worked 75% of his "customary hours" — i.e., his available hours — in those weeks, the calculation of AWW should be performed based on section 440.14(1)(a). Claimant, on the other hand, asserts that the JCC erroneously determined that he worked 75% of his "customary hours" in the 13 weeks preceding his injury; he did not work 75% of those hours and, thus, subsection 440.14(1)(a) should not have been used to calculate his AWW. Based on this assertion, claimant argues that section 440.14(1)(d) should be used to calculate his AWW, and this would require a calculation based on his full-time weekly wages over a 52-week period. The resolution of this issue rests on a determination of whether claimant worked at least 75% of his "customary hours" in the 13 weeks preceding his employment. If so, his AWW calculation must be made pursuant to section 440.14(1)(a)....

...ent were 40 hours per week. The JCC determined that claimant's true "customary hours" were his "available hours," or the hours he actually worked. By doing so, the JCC determined that he had worked 75% of his "available or customary hours," and thus section 440.14(1)(a) would apply....

...This conclusion is an incorrect interpretation of the statute and mandates reversal. While vast discretion is owed the JCC, the JCC's error was two-fold. First, the JCC erred when it determined that claimant's available hours of employment defined his "customary hours" and proceeded to apply section 440.14(1)(a) based on that analysis....

...he intent of the Legislature. See Campus Commons, Inc. v. Dep't of Revenue, 473 So.2d 1290, 1295 (Fla. 1985) (holding that the plain meaning of term controls where administrative definition would thwart the intent of the statute). A plain reading of section 440.14(1)(a) indicates that a claimant employed 13 weeks prior to his or her accident and who *721 worked 75% of his or her customary hours during that period should have his or her AWW calculated based on his or her average wage during that 13 weeks....

...The JCC acknowledged this in her order but stated that claimant's customary hours were akin to his available hours during that 13-week period; thus, claimant had worked 75% of his available hours. This calculation fails to effectively implement the legislative intent of section 440.14(1)(a), because it assigns as "customary hours" the exact amount of hours claimant worked in the 13 weeks prior to his injury. If that interpretation were correct, there would be no need to write an additional segment into section 440.14(1)(a) requiring a JCC to consider whether claimant worked 75% of his "customary hours." This section was likely included to specifically cover individuals like claimant — employees who worked varying hours, and whose average hours wer...

...On the facts here, it cannot be disputed that claimant worked significantly fewer hours in the 13 weeks prior to his injury than he customarily worked for his employer. It appears the JCC is bending the statutory language to deny claimant's good faith request for an increase. Second, the JCC, by applying section 440.14(1)(a), failed to consider other sections of the AWW statute that would more effectively aid in calculating claimant's proper AWW. Based on the above analysis, once the JCC correctly considers claimant's "customary hours," section 440.14(1)(a) will not apply to claimant because it does not appear that in the 13 weeks prior to his injury, he worked 75% of his customary hours....

...The truth is that claimant averaged 36 hours weekly during the year preceding his injury. If this 36-hour average were used as claimant's "customary hours," claimant would have worked 72% of his "customary hours" in the 13 weeks preceding his injury; thus, section 440.14(1)(a) would not have applied. Because section 440.14(1)(a) does not apply, the next inquiry becomes which subsection of 440.14(1) should be used to calculate claimant's AWW....

...Here, claimant worked an average of 36 hours a week in the year preceding his injury. Whether this equates to a full or part-time employment is a question of fact for the JCC. In Mauranssi v. Centerline Utilities Contract Co., 685 So.2d 66, 68 (Fla. 1st DCA 1996), this court noted that: Section 440.14(1)(d), Florida Statutes (1995), requires that "full-time weekly wages of the injured employee" be the standard for calculating average weekly wages....

...injury." Efficient Sys., Inc. v. Florida Dep't of Labor and Employment Sec, 624 So.2d 343, 345 (Fla. 1st DCA 1993). Determinations under subsection (1)(f) are similarly prospective. Accordingly, on remand, the JCC shall determine which subsection of section 440.14(1) should be applied to claimant's AWW calculation....

...after which he entered an order, paragraph 16 of which, the only part involved in this appeal, is as follows: “Claimants contend that employee’s weekly wage and the death benefits based thereon should be increased because of the provisions of F.S. 440.14 (4) which provides as follows: “ ‘If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability, that fact may be consi...

...December IS, 1960, the full commission affirmed the ruling of the deputy commissioner. We are confronted with an appeal by certiorari from the order of the full commission. The sole point presented for our determination is whether or not the provisions of § 440.14(4), Florida Statutes, F.S.A., as above quoted, are applicable to the determination of the average weekly wages of the deceased minor in this case....

...The JCC correctly held that claimant's AWW should include vested annual leave time pursuant to subsection 440.02(23), Florida Statutes (1989), finding that the annual leave time constitutes "consideration received from the employer that is considered income under the Internal Revenue Code in effect on January 1, 1987." Section 440.14, Florida Statutes (1989), provides in pertinent part: *943 (1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s....

...e time to claimant after the industrial accident, instead of during the 13 weeks immediately prior to the accident, does not preclude the inclusion of its value in the computation of claimant's AWW during the weeks in which it was earned and vested. Section 440.14 does not limit the inclusion of wages to that paid in the 13 weeks immediately preceding the industrial accident, but instead provides that AWW shall be based on "wages earned in such employment" during the 13-week period immediately preceding the accident....

...Accordingly, the order of the JCC is AFFIRMED. KAHN, J., concurs. BENTON, J., dissents with written opinion. BENTON, Judge, dissenting. The "basis on which to compute" appellant's workers' compensation benefits "shall be one-thirteenth of the total amount of wages earned," § 440.14, Fla....

...In Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355 (Fla. 1st DCA 2008), we held that “unreported income does not qualify as ‘wages earned and reported for federal income tax purposes’ and cannot be the basis for calculating average weekly wage under section 440.14, Florida Statutes.” Id....

...Accordingly, we reverse the JCC’s award of penalties and interest to Claimant. The JCC also abused its discretion in using a contract-for-hire basis in calculating Claimant’s AWW. Jackson v. Hochadel Roofing Co., 657 So.2d 1266, 1267 (Fla. 1st DCA 1995). Section 440.14(1), Florida Statutes (1999), outlines the methods for calculating a claimant’s average weekly wage. In this case, Claimant did not work “substantially the whole of 13 weeks immediately preceding the injury” but was not a seasonal worker. The E/C also was unable to provide any evidence of a “similar employee.” Therefore, section 440.14(l)(d) requires that “the full-time weekly wages of the injured employee shall be used” to calculate the AWW. For purposes of section 440.14(l)(d), case law clearly holds that a “full-time” work week need not be a 40-hour week....

...This resulted in an average weekly wage of $230.21. 3 The employer/carrier argue that it was improper to include any amount for the expense money because claimant had not received the allowance for the thirteen weeks prior to the accident. Appellants contend that under § 440.14(l)(d), claimant’s average weekly wage must be based on his full-time wages at the time of the accident....

...record nor the order indicates that section was in fact applied by the deputy. Instead, the *1000 deputy s calculations appear to be based on either: (1) an unauthorized formula devised to fit the circumstances of this case, or (2) an application of § 440.14(l)(c), Florida Statutes....

...We therefore remand the cause to the deputy commissioner with directions that he reconsider the methodology utilized to arrive at claimant’s average weekly wage, and make a determination of the appropriate average weekly wage on the basis of one of the statutory provisions in § 440.14....

...Using the catastrophic TTD rate to calculate PTDS benefits would violate the limitations for TTD benefits. Third, the workers' compensation administrative rules define "compensation rate" as "66 2/3 percent of the employee's average weekly wage pursuant to Section 440.14, F.S., as calculated by the carrier, as ordered by a Judge of Compensation Claims, or to which the parties have stipulated." Fla....

...on just referred to provides that no compensation shall be allowed for the first four days of the disability, except certain medical benefits provided for. in Section 440.13. The only question before us is whether Subsection (1) or Subsection (3) of Section 440.14, relating to the basis for the computation of the award, is applicable under the circumstances of this case. The provisions of that section are as follows: “440.14 Determination of pay....

...g the weekly compensation rate by the number of days employed per week to compute the amount due for each day.” (Emphasis supplied.) *458 The respondent employer and insurance carrier contended before the deputy commissioner that Subsection (1) of Section 440.14 should be applied, while the claimant said it should be Subsection (3)....

...t circumvent the formula as outlined by our Legislature. In the event we were so to do, it would mean that in every similar instance regardless of whether the facts in the cause would permit the Deputy to use Subparagraph (1) or Subpara-graph (2) of Section 440.14, the question of what is ‘fair and reasonable’ would have to be determined.” It is clear from the statute that under Subsection (1) the basis for determining the average weekly wage for the thirteen weeks immediately preceding th...

...s of the *459 employer, or that claimant was “unable to obtain full-time work” according to the business practices of the employer, or that claimant’s “attendance at school or college did not permit full-time employment.” The provisions of Section 440.14 F.S.A....

apply section 440.14(l)(f), Florida Statutes, relating to AWW of part-time workers. Section 440.14(l)(f)

...In this workers’ compensation case, the Employer/Carrier (E/C) challenges the Judge of Compensation Claims’ (JCC’s) calculation of Claimant’s average weekly wage (AWW). We reverse and remand because the JCC erroneously concluded that the calculation method under section 440.14(1)(a), Florida Statutes (2014), does not apply. Background Claimant moved to Florida in 2010 and has worked full-time almost continuously since her arrival....

...3  Analysis In workers’ compensation, the standard of review for a question of law is de novo. See Mylock v. Champion Int’l, 906 So. 2d 363, 365 (Fla. 1st DCA 2005). Section 440.14(1) delineates how to compute a claimant’s AWW and provides in pertinent part: (1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee on the date of the accident...

...Under the plain language of the statute, the AWW calculation must be made in accordance with paragraph (a) if the statutory conditions are satisfied. See Wal-Mart Stores v. Campbell, 714 So. 2d 436, 438 (Fla. 1998) (holding that plain language of statute means that resorting to alternate method of AWW calculation under section 440.14(1)(d) is not sanctioned where paragraph (a) applies). Here, the JCC concluded that the thirteen-week calculation method under section 440.14(1)(a) could not apply because Claimant’s work history prior to the thirteen-week period established a pattern of full-time work....

...Notably, an earlier version of paragraph (a) provided that “the term ‘during substantially the whole of 13 weeks’ shall be deemed to mean during not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole.” § 440.14(1)(a), Fla. Stat. (2002) (emphasis added). In 2003, however, the statute was amended to reduce the percentage to 75 percent and to eliminate the modifier “full- 5 time.” § 440.14(1)(a), Fla....

...dustrial accident but has worked in a concurrent employment for only a portion of the thirteen-week period.” Campbell, 714 So. 2d at 437. In reaching this conclusion, the supreme court expressly disagreed with this court’s interpretation that section 440.14(1)(a) applies “only ‘when the injured employee has been continuously employed full-time in the same employment ....

...trial stipulation as opposed to the amount claimed during the final hearing. Accordingly, we REVERSE the order below and REMAND for a determination of Claimant’s AWW consistent with this opinion. WOLF, B.L. THOMAS, and OSTERHAUS, JJ., CONCUR. 1 We note that section 440.14(1)(f), allows a JCC’s AWW determination to account for an injured worker’s most recent work status in the opposite situation—where a worker adopted part-time employment and would have remained a part-time worker. But this statute...

...ation, where two compensable accidents have merged to cause claimant’s permanent total disability. In the instant case, the claimant’s award of temporary benefits was properly determined utilizing the average weekly wage calculation contained in section 440.14(l)(a), Florida Statutes....

...■ The employer/carrier appeal a compensation order awarding temporary total disability, medical bills, costs, and attorney’s fees. We affirm. There is competent substantial medical evidence to support the award of temporary total disability. The deputy commissioner appropriately used § 440.14(l)(d), Florida Statutes (1979), in determining the average weekly wage of Daniels....

average weekly wage could not be made pursuant to § 440.14(1), Florida Statutes (1977). Therefore, the Judge

...In computing the average weekly wage, the Judge averaged appellant’s actual salary for the 13-week period preceding the accident, thus, incorporating into his computations the seven weeks prior to October during which appellant was unemployed. The Judge of Industrial Claims’ method of computation was error. Under § 440.14(1), Florida Statutes (1977), if the injured employee has engaged in the employment in which he was working at the time of injury for 13 weeks immediately preceding the injury, his average weekly wage shall be Vis of the total amount of wages earned in that *229 employment during the 13 weeks. That subsection indicates that unless the employee has worked for at least 90% of the 13-week period, that method of computation of average weekly wage should not be used in his case. Section 440.14(2), Florida Statutes (1977), provides for computation of the average weekly wage using the wages of a similar employee in the same employment as a base if the injured employee has not worked in the employment for 13 weeks....

...subsections (5) or (6). The Judge of Industrial Claims should have computed appellant’s average weekly wage from appellant’s actual wages. Therefore, we reverse on this point and remand for a new determination of average weekly wage pursuant to § 440.14(4), Florida Statutes (1977)....

...Accordingly, this aspect of the appeal is dismissed without prejudice to review any final order that may be entered on this subject. REVERSED in part, DISMISSED in part, and REMANDED for further proceedings consistent with this opinion. BOOTH and WENTWORTH, JJ., concur. . § 440.14(1), Fla.Stat. . § 440.14(2), Fla.Stat.

SHIVERS, Judge. Alex Anstead, claimant in this worker’s compensation case, appeals the deputy commissioner’s application of Section 440.-14(l)(a), Fla.Stat. (1983) 1 rather than Section 440.14(l)(c), Fla.Stat....

...At the time of his injury, May 24, 1984, Anstead was employed as a door-to-door sales representative for Cox Broadcasting in Gainesville, Florida. He sold and installed cable service. Anstead filed a claim for benefits seeking an increase in his average weekly wage based on 440.14(l)(c)....

...more lucrative than others and those who sell in those more lucrative areas make more money. Other testimony demonstrated that even within a peak period business in the same area would fluctuate greatly. We hold that the deputy erred in finding that 440.14(l)(c) was inapplicable merely because Anstead had worked substantially the 13 weeks preceding the accident, however, this error was harmless. Section 440.14(1), Fla.Stat. (1983) sets forth four alternative methods used to determine average weekly wage. The legislature has prescribed 440.14(l)(a) as the preferred compensation rate base unless the use of that particular period is unfair or unreasonable....

...Florida Industrial Commission, 110 So.2d 455 (Fla. 1st DCA 1959), the claimant, an orange picker, remained employed all year round but the 13 week period prior to his accident was the slowest time of the year. This court held it was absolutely bound to use Section 440.14(1) (now 440.14(l)(a)) because the claimant had worked substantially for the 13 weeks prior to his accident. Id. In 1974, the Florida legislature promulgated the seasonal worker provision (440.14(l)(c)) seemingly to rectify those unjust situations where a seasonal worker is injured during his slow or unemployed period. Before the promulgation of subsection (c), the Florida Supreme Court held that when the method of calculation under'440.-14(1) (now 440.14(l)(a)) is factually available, then it should be followed. Waymire v. Florida Industrial Commission, 174 So.2d 404, 406 (Fla.1965). Even subsequent to Section 440.14(l)(c) this court continued to hold that a claimant’s average weekly wage must be determined according to the 13 week standard regardless of whether the 13 week period was during a slack or a busy time for a claimant whose earnings fluctuate according to the level of business activity....

...under the seasonal worker provision. See also, DesFosses v. Carillon Hotel, 389 So.2d 228, 229 (Fla. 1st DCA 1980). Thus, the application of subsection (l)(a) by the deputy was proper. We hold that the deputy was obligated here to determine whether 440.14(l)(c) was applicable regardless of whether or not the claimant worked substantially the 13 weeks prior to his accident because Anstead made a specific attempt to be characterized as a seasonal employee....

...nce the deputy also made a determination supported by competent substantial evidence that Anstead was not a seasonal employee under the meaning of subsection (c). AFFIRMED. THOMPSON, J., concurs. ERVIN, J., specially concurs, with written opinion. . Section 440.14(l)(a) Fla.Stat....

...he was working at the time of the injury, ..., during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks. . Section 440.14(l)(c), Fla.Stat....

...ner erred in failing to include employer contributions to claimant’s retire *1089 ment program in her average weekly wage where the retirement benefits were vested. Resolution of the matter involves determination of a question of law as to whether section 440.14(3) (effective May, 1982) applies to retirement benefits and, if so, whether under the circumstances of this case the deputy correctly determined that employer continues to provide these benefits....

...She had been working for employer for more than 15 years and it is undisputed that her retirement benefits had vested. After the work related accident, employer made no actual contributions to claimant’s retirement account. The deputy determined that section 440.14(3) applies to retirement benefits, and that because claimant continues to be eligible to receive retirement credits for the full period of time during which workers’ compensation payments are received pursuant to Fla.Admin.Code Rule 22B2.12, 1 she has lost no benefits as a result of her temporary total disability. Claimant argues, based on the difference in language used in sections 440.02(12), Fla. Stat. (1981) (defining wages) and 440.14(3), that retirement benefits are not intended to be encompassed in section 440.14(3)....

...Irving, 384 So.2d 745 (Fla. 1st DCA 1980); Department of Health and Rehabilitative Services v. Ryan, 381 So.2d 269 (Fla. 1st DCA 1980); and Sunland Training Center v. Thomas, IRC 2-3917 (1979). None of these cases considered the applicability or effect of section 440.14(3), however. Section 440.14(3) provides: If, during the period of disability, the employer continues to provide consideration, including board, rent, housing, or lodging, the value of such consideration shall be deducted when calculating the average weekly wage o...

...ar to the language in section 440.02(12), which has been construed to include vested retirement and pension benefits, thus lending support to the argument for inclusion of vested retirement or pension benefits within the scope of consideration under section 440.14(3). In addition, the enumeration of benefits which constitute consideration in section 440.14(3) is not exhaustive as indicated by use of the term “including.” We conclude that contributions to vested retirement or pension programs are to be covered by section 440.14(3) when the employer continues to provide such benefits....

...ng her present temporary total disability status, that the employer is continuing to provide the benefit. Therefore, the employer may exclude the value of its contributions to retirement from the calculation of claimant’s average weekly wage under section 440.14(3) so long as such consideration is provided and subject, of course, to any right to modification which may in the future exist under section 440.28, Florida Statutes, based on changed conditions cognizable under that section such as, for example, termination of claimant’s state employment....

(AWW) should be calculated in accordance with Section 440.14(l)(e), Florida Statutes (1979). At the time

...” does not permit the E/C’s proposed reading or trump Pishotta . As background, the amount of indemnity benefits payable under the Workers’ Compensation Law is calculated based on a claimant’s AWW, and the appropriate AWW is calculated under section 440.14, Florida Statutes, which sets forth its formulas in terms of “wages.” “Wages” is defined elsewhere in the Workers’ Compensation Law: The money rate at which the service rendered is recompensed under the contract of hiring in...

...total disability payments. Neither the motion to dismiss nor the order identifies the statutory authority for the assertion that claimant was not entitled to benefits because she received her salary during the period for which she claimed benefits. Section 440.14(3) or 440.-20(14) might support this ultimate conclusion, but the employer and carrier would have to assert one or both of these statutes as a defense, and would have the burden of proving their entitlement to an offset under either section....

weekly wage” is determined by the application of Section 440.14 Florida Statutes, F.S.A., which is as follows:

...Claimant, Willie Cody, appeals from an order of the judge of compensation claims (JCC) determining his average weekly wage (AWW), as a part-time employee. He con *877 tends first that he was a full-time, rather than part-time worker for the employer, United Parcel Service, pursuant to section 440.14(1)©, Florida Statutes (1991). In the alternative, he contends that if the JCC correctly determined his status as a part-time employee, the JCC should not have used the 13-week formula of section 440.14(l)(a) to decide AWW, because he did not work substantially all of the 13 weeks preceding his injury. We affirm the first issue, because the JCC’s finding thereon was supported by competent, substantial evidence, but reverse the second issue and remand for further proceedings. Section 440.14(l)(a) provides that the AWW shall be l/13th of a claimant’s wages earned during the 13 weeks preceding the injury, so long as the claimant worked “substantially the whole of [the] 13 weeks,” which is defined as “not less than 9...

...termining a part-time worker’s AWW. Silver Springs, Inc. v. Scardo, 408 So.2d 844 (Fla. 1st DCA 1982). Having decided that Cody was a part-time worker, the JCC next reviewed the actual wages Cody earned during the 13 weeks before his injury, using section 440.14(l)(a) as a model....

...me hours of the similar employee; thus it was impossible to determine whether such employee worked no less than 90 percent of the customary hours). On remand, the JCC must determine Cody’s total customary part-time hours in order to decide whether section 440.14(l)(a) is applicable....

...This workers’ compensation appeal involves the issue of whether the deputy commissioner (dc) erred in directing the insurance carrier (carrier) to adjust the minor-employee’s average weekly wage (AWW) in the sum of $384.84, pursuant to the method provided in Section 440.14(l)(e), Florida Statutes (1979), 1 as to the minor’s claim for temporary total disability (TTD)....

...In 1984, he was employed as a salesman selling electronic beepers, for which he received both salary and commission, or a minimum monthly income of $1,500. Although the carrier had provided claimant TTD benefits from the date of the accident until the date of MMI, or May 19, 1982, based on the statutory method provided in section 440.14(l)(a) for determining claimant’s AWW, claimant sought additional compensation benefits during that period pursuant to the procedure authorized by section 440.14(l)(e)....

...*396 The carrier appealed, 2 contending that the dc erred in relying on an AWW that the claimant had obtained nearly two years and three jobs following the cessation of time for which the claimant requested TTD benefits. It is the carrier's position that section 440.14(l)(e) allows for an adjustment to a minor’s AWW, only as to situations where — during the period of disability at issue — there is evidence that the minor’s income would probably be increased. Accordingly, it concludes, where evidence is presented disclosing an increase in a minor’s wages following the specific period of disability claimed, an adjustment to the AWW pursuant to section 440.14(l)(e) is unwarranted. We agree. If a minor claims temporary benefits and seeks also to have his AWW adjusted pursuant to the method provided in subsection (l)(e) of 440.14, any such adjustment cannot be based upon actual earnings received after the minor is no longer temporarily disabled....

...In that there was no evidence at bar that claimant’s anticipated wages would be expected to increase during the period of his TTD, it was error for the deputy to adjust the AWW based upon wages actually earned by claimant following that period of disability. REVERSED. SMITH, C.J., and MILLS, J., concur. . Section 440.14(l)(e) provides: "If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his average weekly wages.” ....

...After sustaining a work-related injury, claimant sought, among other benefits, the correction of his AWW and reimbursement for a disabled parking permit. Because claimant only worked for the employer for approximately one week before being injured, the JCC applied section 440.14(l)(b), Florida Statutes (2001), in calculating claimant’s AWW. Section 440.14 provides in part: (1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s....

...uested authorization for such and neither the nature of the claimant’s injury nor the medical reports reflected any need for psychiatric involvement). Accordingly, we AFFIRM in part, REVERSE in part, and REMAND with instructions that the JCC apply section 440.14(l)(d) in calculating claimant’s AWW....

52 weeks, not 13 weeks as is normally done. Section 440.14(l)(c), Fla. Stat. This would not be the case

...dent of October 8, 1960.” A resumé of this evidence, fully detailed in the deputy’s order, would in the circumstances of this case serve no useful purpose. Upon the record before us, the alleged misapplication of the formulas prescribed by Sec. 440.14, supra, cannot in our opinion be properly argued at this point....

...The commission’s order contains no such reference and does not upon this record imply any consideration or disposition of the question so as to authorize review by certiorari in this Court. Certiorari denied. ROBERTS, C. J., O’CONNELL and CALDWELL, JJ., and WILLIS, Circuit Judge, concur. . “440.14 Determination of pay....

...Here, the claimant had no earnings in her covered work or any other *669 employment either at the time of, or for the thirteen weeks immediately preceding, the occurrence of her injury. She thus did not have an average weekly wage as delineated in section 440.14, Florida Statutes....

...The claimant sought a determination of the correct AWW. The parties stipulated, and the judge of compensation claims (JCC) found, that the claimant had not worked substantially the whole of thirteen weeks immediately preceding the injury pursuant to section 440.14(l)(a), Florida Statutes. It appears from the testimony and evidence presented, however, that section 440.14(l)(a) is applicable....

...k. If forty hours per week was the customary number of hours for the job, claimant worked 91.85% of the customary hours during the 13 week period prior to injury. The E/C had calculated claimant’s AWW based on the wages of a similar employee under section 440.14(l)(b)....

...Mason worked a five-six day schedule, while claimant worked a four-five day schedule, so that there would be one day difference between the two employees each week. Additionally, the claimant earned $4.25 per hour at the time of injury. Accordingly, Ms. Mason was not a similar employee for purposes of section 440.14(l)(b)....

...The JCC calculated claimant’s AWW using 43.94 hours per week, based on the hours of the “similar” employee, and the claimant’s actual rate of pay. It is not clear from the order whether the JCC calculated AWW using the wages of a similar employee pursuant to (l)(b) or made the calculation pursuant to section 440.14(l)(d). We reverse the determination of average weekly wage. On remand, the JCC should either apply section 440.14(l)(a) or make findings regarding why (l)(a) is not applicable....

...on the amount Claimant was paid rather than the amount she earned. This appeal followed. We review the JCC’s interpretation and application of the law de novo. See Stubbs v. Bob Dale Constr., 977 So.2d 718, 719 (Fla. 1st DCA 2008). The JCC applied section 440.14(l)(a), Florida Statutes, to calculate Claimant’s AWW. However, the statute plainly and unambiguously provides that the AWW “shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks.” § 440.14(l)(a), Fla. Stat. (2002) (emphasis provided); see also Witzky v. W. Coast Duplicating & Claims Ctr., 503 So.2d 1327, 1328 (Fla. 1st DCA 1987) (noting that section 440.14(l)(a) speaks in terms of wages earned by the claimant, not the amount of money paid to the claimant)....

...The record also reflects that all salesmen had the option of using a demonstrator automobile immediately upon hiring. If they accepted, their W-2 forms reflected a $125 monthly salary. Although claimant argued that his average weekly wage should have been calculated under the Section 440.14(1)(b), Florida Statutes, similar employee method, the judge of compensation claims found that method inapplicable and instead applied the Section 440.14(1)(d) actual wages method....

...[1] Conversely, cases in the nature of an occupational disease, such as Christopher, hold that AWW must be calculated from the onset of an employee's disability. [2] Thus, the JCC properly construed the statute, and the order is AFFIRMED. VAN NORTWICK and PADOVANO, JJ., concur. NOTES [1] See § 440.14(1), Fla....

...Based on the stipulated AWW of $291.68, the deputy commissioner found that the proper compensation rate was $194.55, and awarded an additional $47.89 per week in benefits to Smith plus interest, penalties, costs, and attorney’s fees. The Legislature recently enacted Section 440.14(3), Florida Statutes (Supp.1982), effective 1 May 1982....

...hen computing the AWW. We cannot agree. The substantive rights of the parties in a workers’ compensation case must be determined by the law in effect on the date of the accident. Ship Shape v. Taylor, 397 So.2d 1199 (Fla. 1st DCA 1981). Therefore, Section 440.14(3), Florida Statutes (Supp.1982), cannot be applied to this accident which occurred before the effective date of the statute....

of a similar employee in the same employment. § 440.14(1), Fla.Stat. (1993). An individual who is working

based on the thirteen weeks proceeding the injury. § 440.14, Fla. Stat.

...There was no evidence in the record that claimant earned that amount for the thirteen weeks immediately preceding the accident. The applicable law is clear. Wage-earning capacity before the injury is measured solely by the employee’s average weekly wage at the time of the injury as prescribed in Section 440.14, Fla.Stat....

...Coca-Cola Company-Foods Division, 389 So.2d 1177 (Fla.1980); Board of County Commissioners v. Alman, 156 So.2d 850 (Fla.1963). Because claimant had been employed by the same, employer for the requisite 13-week period preceding the accident, only the wage computation *1280 method prescribed in Section 440.14(1) is applicable in determining claimant’s average weekly wage....

...uld have directed that the claimant’s TPD benefits be calculated based on the stipulated AWW of $678.29. Second, even if the stipulation were properly set aside, the JCC was obligated to determine claimant’s AWW under the 13-week formula set out Section 440.14(1), Florida Statutes (1987). Apholz v. North Am. Van Lines, 427 So.2d 1094 (Fla. 1st DCA 1983); Coles v. Gainesville Bonded Warehouse, 409 So.2d 1205 (Fla. 1st DCA 1982) (section 440.14(1)(a) shall be used to calculate AWW when employee has worked substantially all of the 13 weeks immediately preceding his or her injury). And see Quality Painting, Inc. v. Harrison, 529 So.2d 1172 (Fla. 1st DCA 1988) (cashier who was generally subject to seasonal layoffs did not elect to be treated as a seasonal worker pursuant to section 440.14(1)(c))....

...e and to impeach his testimony with reference to the decline in his earnings. As outlined above, because appellant’s AWW was determined by stipulation, the cyclical nature of his earnings was not an issue. Even if his AWW had been determined under section 440.14(1), because claimant did not elect to be characterized as a seasonal employee, the cyclical nature of his earnings still would not have been an issue. Thus, it was not error to exclude the 1986 records. As for the 1987 records, although they would have been necessary to calculate claimant’s AWW under section 440.14(l)(a), they were not offered for that purpose, and because the AWW was set by stipulation, the exclusion of those records, if it was error, was harmless....

...1st DCA 1982). In determining average weekly wage, the deputy combined claimant’s wages and union benefits for the thirteen weeks preceding his accident and divided the total by thirteen. This is the appropriate manner of determining average weekly wage under section 440.14(l)(a), Florida Statutes....

...It was inappropriate in this case, however, because claimant did not work “substantially the whole of 13 weeks” prior to his accident. The deputy’s calculations would have been appropriate if he had made a factual finding that claimant was a “part-time worker” within the meaning of section 440.14(l)(f), Florida Statutes; however, he failed to make such finding. Section 440.14(l)(f) requires that, in order to find an employee to be a part-time worker, *510 it must be established that he (1) was a part-time worker at the time of his injury, (2) had adopted part-time employment as his customary practice, and (...

$240 per week; it would not be computed under section 440.-14. Where, as here, the contract rate bears a

proceedings consistent with Vegas and with section 440.14, Florida Statutes. AFFIRMED in part, REVERSED

...s in “detail work” in determining his AWW for the 1990 accident. Here, the E/C properly concede error. Vegas v. Globe Sec., 627 So.2d 76 (Fla. 1st DCA 1993) (en banc) (concurrent earnings must be included in determining an employee’s AWW under section 440.14(1), Florida Statutes), review denied, 637 So.2d 234 (Fla.1994)....

argues that the JCC erred in: (1) applying Section 440.-14(l)(f), Florida Statutes, to determine his average

...The deputy ruled that claimant had not suffered a diminution of wage-earning capacity in excess of 10% and denied claimant’s claim for additional current disability. That ruling is not contested. As to claimant’s average weekly wage, Florida Statute § 440.14(1) (1975), the statute in effect at the time of the injury, read: If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of thirteen weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said thirteen weeks. Moreover, an examination of Florida Statute § 440.14(2) (1975) indicates it read as follows: If the injured employee shall not have worked in such employment during substantially the whole of thirteen weeks immediately preceding the injury, the wages of a similar employee in the same employme...

...In the instant case, testimony is present that claimant had been employed in his own janitorial service for some 80 weeks before the accident. Therefore, it was improper for the deputy to use the wages of a similar employee to determine claimant’s average weekly wage. Florida Statute § 440.14(4) (1975) read: If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used, except as otherwise provided in subsection (5) or (6)....

...ence for the deputy to determine claimant’s average weekly wage. Accordingly, the order below is REVERSED and this cause REMANDED for a proper determination of claimant’s average weekly wage under Florida Statute § 440.-14(1) or Florida Statute § 440.14(4)....

...636 , 485 P.2d 441 (1971); 2B Larson, Workmen’s Compensation Law, § 78.31(d), pp. 15-164 & 15-165 (1989). As to the final issue, we find an abuse of discretion in the JCC’s determination of how claimant’s average weekly wage (AWW) was to be determined pursuant to § 440.14. The JCC relied on claimant’s 13-week wage statement and correctly determined that she had not worked “substantially the whole of 13 weeks immediately preceding the injury” as that period is defined in § 440.14(l)(a)....

...Once the JCC determined that subsection (1)(a) was not satisfied, the statute required a determination of whether there was “a similar employee in the same employment who ha[d] worked substantially the whole of such 13 weeks,” upon whose wages claimant’s AWW could be based. See § 440.14(1)(b). Based on the exhibits and the testimony of Debra Morley, Expicare’s administrative vice-president, the JCC found that Judith Bridger and Peggy Gillespie-Privett were “similar employees” for purposes of the statute and that § 440.14(1)(b) was the proper approach to calculate claimant’s correct AWW....

...Moore, 567 So.2d 972 (Fla. 1st DCA 1990). We find that the JCC’s reliance on the “similar employee” method of calculating claimant’s AWW is not supported by competent substantial evidence. Under those circumstances, it is necessary for the JCC to apply § 440.14(l)(d), the fall-back provision where none of the prior subsections apply....

...urred on June 22, 1989, and that claimant acted reasonably under the circumstances in providing notice of her injuries. However, we reverse and remand as to the issue of calculating claimant’s AWW, and direct the JCC to use the formula provided in § 440.14(l)(d), F.S....

...The only claim made by Cairo is that he is entitled to wage loss based on the loss of his ability to engage in concurrent employment. There is no evidence in the record that Cairo engaged in concurrent employment thirteen weeks prior to either the 1995 accident or the 1986 accident. See § 440.14(l)(a), Fla....

...rther), and that the deputy erroneously concluded that claimant is a full-time employee, we nonetheless reverse that portion of the order determining the amount of claimant’s average weekly wage on the basis that it was improperly calculated under section 440.14(l)(d), Florida Statutes (1983)....

...The fundamental issue before the deputy commissioner regarded the characterization of claimant’s status as a casual driver relevant to a determination of whether he was a full- or part-time employee. On the basis of the evidence, the deputy found that claimant was not a part-time employee as defined by section 440.14(l)(f), as he had neither adopted part-time employment as his customary practice nor would have remained a part-time worker during the period of disability under normal working conditions....

...Once having determined claimant’s status, the deputy next considered the statutory scheme and determined that claimant had not worked substantially the whole of the thirteen weeks immediately preceding his injury, since he only worked thirty-one of sixty-five days, and that the method set forth in section 440.14(l)(a) could not be utilized to calculate his average weekly wage....

...Further, as he held it to be unreasonable to suppose that there could possibly be a similar employee who had worked substantially the whole of the 13 weeks, given the varied and differing nature of the work performed and the time required in which to perform it by the drivers, thereby eliminating the calculation method under section 440.14(l)(b), and as there was no dispute that claimant’s job was not seasonal for purposes of subsection (l)(c), the deputy employed the method provided in section 440.14(l)(d) using claimant’s full-time weekly wages based on a 40-hour workweek plus overtime....

...Up to this point, we approve the deputy’s reasoning and con- *659 elusions and agree that on the basis of the circumstances in this case and claimant’s unique employment position, claimant was properly considered to be a full-time employee for purposes of section 440.14....

weeks preceding his compen-sable accident under section 440.14(l)(a), Florida Statutes (1989), or, alternatively

in calculating the average weekly wage. Under § 440.14(l)(f), Florida Statutes (1978), if a worker choses

...Subsequently, claimant secured the services of an attorney and instituted proceedings to determine the proper average weekly wage. After a hearing, the deputy commissioner found that the proper method for determining claimant’s average weekly wage was found in § 440.14(l)(e), Florida Statutes (1979), which section governs the establishment of an average weekly wage for minors whose wages should be expected to increase during the period of disability....

...The e/c appealed that finding, and this court affirmed without opinion on June 22, 1982. A hearing was then held to determine liability for the claimant’s attorney’s fees. The carrier’s regional claims manager testified that he had considered § 440.14(l)(e) when determining claimant’s average weekly wage, but decided it did not apply because “there was no reason to indicate that [claimant] would ever work more than two days a week during the period of disability.” He also testified that in his five years as a claims supervisor, he had handled approximately one hundred claims involving minors and had never utilized § 440.14(l)(e) to calculate an average weekly wage....

...§ 440.-34(2)(b), Florida Statutes (1979). The record reflects no basis for any reasonable belief that claimant would not have worked more than two days a week during the obviously extensive period of disability. The adjuster’s admission that he had never utilized § 440.14(l)(e) would also indicate an apparent disregard for the clearly expressed intent of that provision for minor claimants....

...ained that he was entitled to computation of his average weekly wage by combining his earnings with Alpha Rent A Car, as well as his former earnings at Aircraft Service International, since he “intended” to work two jobs. Appellants contend that Section 440.14, Florida Statutes (1979) does not contemplate the calculation of average weekly wage based upon a claimant’s mere intention to work at two jobs....

...The deputy commis *478 ■sioner entered an order allowing the claim for compensation to the stepmother and four minor children but denied the claim •of the father and Margaret Peterman, the 20 year old sister. The deputy commissioner ruled the wages of the deceased were not increased because of § 440.14(4), Florida Statutes 1959, F.S.A. Application for review on the part of the carrier and cross-application on the part of the claimants were made to the full commission of that part of the deputy commissioner’s ruling with reference to § 440.14(4)....

...upon the testimony of the witnesses. His order is supported by competent substantial evidence which accords with logic and reason and was approved by the full commission. The question of whether or not the wages of deceased were increased because of § 440.14(4), Florida Statutes 1959, F.S.A., is not treated or decided in this case but is considered and disposed of in the companion case entitled Peterman et al....

...HN, Judge. In this workers’ compensation case, the employer and carrier appeal the determination of the claimant’s average weekly wages (AWW) and argue that the judge of compensation claims (JCC) should have applied the part-time worker statute, section 440.14(l)(f), Florida Statutes (1991)....

...in October 1993, she continued working full-time until March 29, 1994, when she required another back surgery. This back surgery resulted in a second period of temporary total disability commencing April 4, 1994, and continuing through the hearing. The JCC found that section 440.14(1)© did not apply in determining Jones’ AWW because, although Jones was working part-time at the time of her compensable injury, she would not have remained a part-time employee during the period of disability....

...only considered the period of temporary total disability immediately following her injury to determine whether, under the statute, she would have remained a part-time worker during the period of disability. We disagree. The part-time worker statute, section 440.14(1)©, provides: If it [is] established [1] that the injured employee was a part-time worker at the time of the injury, [2] that he had adopted part-time employment as his customary practice, and [3] that under normal working conditions...

...In this case, the record evidence indicates that, by the time of her second period of temporary total disability, Jones had resumed full-time employment and had established a ten-month pattern of such. As competent substantial evidence thus supports the JCC’s finding that the third element of section 440.14(1)© was not satisfied, the JCC properly declined to apply the part-time worker statute in calculating Jones’ AWW....

...Consideration of part-time worker status depends upon three findings: (1) claimant was a part-time worker at the time of injury; (2) claimant adopted part-time employment as a customary practice; and (3) claimant would have remained a part-time worker during the period of disability. See § 440.14(1)(f), Fla....

agree that the AWW should be computed under section 440.14(1)(d), Florida Statutes, which requires determining

...t is not supported by competent, substantial evidence. On remand, we direct the judge of compensation claims to enter an amended order holding that the average weekly wage is $407.45, the figure arrived at as a result of the computations mandated by section 440.14(l)(a), Florida Statutes (1997), which is the controlling provision....

determining an employee’s average weekly wage under section 440.14(l)(a), Florida Statutes. Because the judge

...We affirm in part and reverse in part. *822 With respect to the employer/carrier’s poipt on appeal, we find competent, substantial evidence in the record to support the deputy’s finding of average weekly wage and, accordingly, affirm such finding. There was no error in using Section 440.14(1)(d), Florida Statutes (1981), in view of the facts so found....

TERRELL, Chief Justice. Coleman, the claimant, was injured while in the employment of respondent, Burnup and Sims, Inc. His injury occurred two and one-half weeks after he was employed, making recovery depend on Section 440.14 (2), Florida Statutes, F.S.A....

...ekly wage used as a basis for the computation of compensation for the claimant. Rule 15(a) of the Florida Industrial Commission, upheld in Wilkes & Pittman v. Pittman, Fla. 1957, 92 So.2d 822 , defines the pertinent portions of the statute [F.S. § 440.14(2), F.S.A.] quoted above and is as follows: "15(a) The phrase, ‘substantially the whole of thirteen weeks,’ as used in Section 440.14(1), Florida Statutes, shall be deemed to mean and refer to a constructive period of thirteen weeks as a whole, i....

...Nowhere is there any finding of fact as to what constituted the “total customary full time hours of employment within the period considered as a whole.” Absent such finding it is impossible to apply the 90% test to determine whether Mosely’s wage scale is a proper yardstick under Section 440.14(2) and Rule 15 supra....

...l in character but temporary in quality, 662/3 percent of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed 104 weeks except as provided in this subsection, s. 440.12(1), and s. 440.14(3).[4] Once the employee reaches the maximum number 4....

...Section 440.12(1), Florida Statutes (2009), provides: “No compensation shall be allowed for the first 7 days of the disability, except benefits provided for in s. 440.13. However, if the injury results in disability of more than 21 days, compensation shall be allowed from the commencement of the disability.” Section 440.14(3), Florida Statutes (2009), provides in part: “The department shall - 15 -  of weeks allowed, or the employee reaches the date of maximum medical improvement, whichever occurs ea...

ZEHMER, Judge. The claimant, Domenic Albanese, obtained a workers’ compensation order increasing his average weekly wage pursuant to section 440.14(l)(d), Florida Statutes (1987)....

...ved full-time weekly wages for only the two-week period immediately preceding his injury pursuant to his new contract of employment; therefore, the deputy commissioner properly used the two *95 weeks’ wages to compute the average weekly wage under section 440.14(l)(d)....

“wages,” and therefore, no need to resort to section 440.14, Florida Statutes, for calculation. However

promised her full-time work. Blind contends section 440.14(l)(a), Florida Statutes (1991), requires the

...of Fla., 888 So.2d 785 (Fla. 1st DCA 2004); James v. Armstrong World Indus., Inc., 864 So.2d 1132 (Fla. 1st DCA 2003); Karnes v. City of Boca Raton, 858 So.2d 1264 (Fla. 1st DCA 2003). Because the JCC’s ruling is consistent with the requirements of section 440.14(1), Florida Statutes (1987), the order is AFFIRMED....

...nsecticides, the growing, the spraying, and other help when needed. Any benefit to him would have derived from profits to be divided equally between the worker-claimant and the employer-landowner, after the crops were sold and the expenses deducted. Section 440.14, Florida Statutes, F.S.A., prescribes the formula for determining the average weekly wage of an injured employee as the basis upon which to compute compensation....

...Employer/carrier appeal from an order of the deputy commissioner awarding claimant temporary total disability benefits, medical treatment and expenses. The compensability of the injury is not at issue. Rather the issue is whether the deputy erred as a matter of law in his finding of a “similar employee,” pursuant to § ,440.14(l)(b), Florida Statutes (1979), in determining claimant’s average weekly wage....

...The record also indicates that claimant was receiving $4.43 per hour and was considered a full-time employee with a forty-hour work week. In making its determination of claimant’s average weekly wage on which to base an appropriate compensation rate, the deputy commissioner invoked § 440.14(l)(b) which states: If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substant...

...nt substantial evidence. However, an investigation of the record indicates that there is no “similar employee” on which reasonably or fairly to base a determination of claimant’s average weekly wage. Consequently, it becomes necessary to apply § 440.14(l)(d) which provides in pertinent part: If any of the foregoing methods cannot reasonably and fairly be applied the full-time weekly wages of the injured employee shall be used ......

weekly wage may be decided within the parameters of § 440.14(1) without referring to a “similar employee.”

...We affirm the order of the judge of compensation claims insofar as it concludes that appellee’s right knee injury was com-pensable, and also conclude that the judge of compensation claims made a “ ‘fair and reasonable calculation of average weekly wage under section 440.14(l)(d),’ ” Florida Statutes (2001)....

compensation order which ruled that pursuant to section 440.14(1), Florida Statutes (1991), claimant’s concurrent

...ctivity. In 1975 there was no hernia to aggravate, but merely a weakness at the site of the 1972 surgery. This proclivity is not a preexisting hernia subject to aggravation. ... The recurrent hernia in this instance can only be compensated for under Section 440.14(6) Florida Statutes 1975....

...ges.” We reverse, based upon this court’s recent decision in Vegas v. Globe Security, 627 So.2d 76 (Fla. 1st DCA 1993) (en banc), stating that the 1990 amendment to section 440.02(24) has no impact on the calculation of average weekly wage under Section 440.14(l)(a), Florida Statutes....

denied a claim for concurrent wages pursuant to section 440.14(1), Florida Statutes (1991). We reverse and

...th replied, “That’s really ... a judgment call,” and observed that the Pishottas, in their capacity as sole shareholders in the corporation, had the right to decide when and when not to pay salaries. The statute applicable to the instant case, section 440.14, Florida Statutes (1985), provides in subsection (l)(a) that the average weekly wage of the injured employee at the time of the injury shall be computed based on the total amount of wages earned in the employment during the 13 weeks preceding the injury. In turn, section 440.02(21) defines “wages” as “the money rate at which the service rendered is recompensed under the contract of hiring.” Thus, “wages,” as utilized in section 440.14 for purposes of establishing an average weekly wage, measures the claimant’s pre-injury earning capacity to be thereafter compared to what the claimant is able to earn following his injury....

...orted to the federal government and unreported earnings. Because claimant worked “substantially the whole” of the 13-week period preceding her injury, her average wage should be one-thirteenth of the wages she actually earned during this period. Section 440.14(1), Fla.Stat....

...Additionally, as contended in Point IV, we find that the average weekly wage should be recalculated with specificity so as to facilitate review. See Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976). From our preliminary attempts to review the computation, it appears that the method did not comply with Section 440.14, Florida Statutes (1975)....

ERVIN, Judge. Claimant, William V. Gruber, Jr., appeals an order establishing his average weekly wage (AWW) as $327.85, contending that the judge of compensation claims (JCC) did not comply with Section 440.14(l)(a), Florida Statutes (1991), which requires a finding that the claimant worked substantially the whole of 13 weeks preceding the industrial injury....

...ur decision as to the first point. Gruber is an aluminum installer who was employed by Budd Severino Gutters & Siding in late August 1990. On March 25, 1991, Gruber injured his back on the job. The sole issue before the JCC was claimant’s AWW. Section 440.14(l)(a) provides: If the injured employee has worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the inju...

...to support the JCC’s conclusion that claimant worked substantially all of the requisite 13 weeks. See, e.g., Spartan Elecs. v. Russell, 513 So.2d 153 (Fla. 1st DCA 1987); Mendzee v. National Roofing Co., 417 So.2d 841 (Fla. 1st DCA 1982). Because section 440.14(l)(a) is inapplicable to Gruber under the facts of this case, we remand for the JCC to determine Gru- *1355 ber’s AWW by using the most applicable of the alternative methods provided in section 440.14(l)(b) through (g)....

...rage weekly wage. The employer and carrier contend this was error. We disagree. The deputy’s ruling combining wages from both sources in determining claimant’s average weekly wage is entirely consistent with the supreme court’s construction of section 440.14(3), Florida Statutes (1969) [now § 440.14(l)(d), Fla.Stat....

...Since Appellee had been employed less than thirteen weeks and there is no evidence of a similar employee’s wages, the calculation of Appellee’s average weekly wage should be based on the full-time weekly wages, including overtime, for the weeks that he did work. Section 440.14(4), Florida Statutes (1977); See Imperial Frame Corp....

...tion rate of $203.49), or the 13 weeks prior to the surgery in 2000 (which results in an AWW of $638.73, with a compensation rate of $426.03). The JCC concluded the appropriate AWW was based on the 13 weeks prior to the appellant's accident in 1982. Section 440.14, Florida Statutes (1982), provides in relevant part: (1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s....

...ragraph (f). (Emphasis added). "Injury" means "personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury." § 440.02(6), Fla. Stat. (1981). Section 440.14(1)(d) is a "fall-back provision where none of the prior subsections apply." Expicare Nursing Services v....

...The JCC calculated the AWW by dividing the total amount earned at Wal-Mart during the 13 weeks preceding the accident by 13. The JCC then modified the AWW by dividing the total amount the claimant earned at the part-time job by six and adding that figure to the original AWW. Wal-Mart argued the AWW should be calculated under section 440.14(1)(a) by dividing by 13 the total amount earned at both jobs during the 13-week period preceding the accident....

...g loss." Wal-Mart Stores v. Campbell, 694 So.2d 136, 142 (Fla. 1st DCA 1997). The panel concluded the JCC properly exercised his discretion in calculating the AWW. A majority of the supreme court quashed the decision of this Court, determining that "section 440.14(1)(a), Florida Statutes, set forth the proper formula for use of a judge of compensation claims (JCC) in determining AWW in all cases where a claimant has worked in one employment for substantially the whole of 13 weeks prior to an ind...

...In the present case, the appellant had worked for the employer during substantially the whole of the 13-week period preceding the injury in 1982. That use of some other period would result in a higher compensation rate for a claimant does not compel a finding that the method in section 440.14(1)(a) cannot fairly and reasonably be applied....

...or at the significantly greater AWW in effect at the time claimant ultimately became disabled on April 18, 2000, due to the back condition. The majority, in affirming the order, approves use of claimant's 1982 wages and calculation of his AWW under section 440.14(1)(a), Florida Statutes (1981), and rejects claimant's argument that his AWW should have been calculated pursuant to section 440.14(1)(d). I cannot agree. I am cognizant that section 440.14(1)(a) is generally the preferred method for calculating a claimant's AWW in a situation where the claimant worked during the 13 weeks immediately preceding the injury. See Wal-Mart Stores v. Campbell, 714 So.2d 436 (Fla.1998); Prestressed Decking Corp. v. Medrano, 556 So.2d 406 (Fla. 1st DCA 1989). I am also aware that section 440.14(1)(d) is most often used in AWW calculations when an injured worker has not worked substantially all of the 13 weeks preceding the injury and there is no similar employee to permit calculation under section 440.14(1)(b)....

...Publix Supermarkets, Inc., 721 So.2d 1235 (Fla. 1st DCA 1998); City of Hialeah v. Jimenez, 527 So.2d 936 (Fla. 1st DCA 1988). I cannot conceive, however, how anyone can logically conclude that it is reasonable and fair to compute claimant's AWW by utilizing his 1982 wages under subsection 440.14(1)(a)....

...And see Wal-Mart Stores v. Campbell, 714 So.2d 436, 438 (Fla.1998) (agreeing "that the goal of the calculation of the AWW is to determine a fair and reasonable AWW"). What has occurred in this case is, as Professor Larson warned, the mechanical application of section 440.14(1)(a) in calculating claimant's AWW without any attempt to arrive at a fair approximation of his probable future earning capacity as a result of his disability....

...In my judgment, the same theory should apply in instances such as this, where a claimant is injured, but does not become disabled as a result of that injury until years later, and his or her earnings have significantly increased between the time of injury and disability. Applying section 440.14(1)(d) in such cases is not only consistent with the purpose of the Workers' Compensation Law, [2] but it is also consistent with the E/C's statutory duty to provide coverage....

...h indemnity benefits. In fact, Hillsborough County School Board v. Christopher, 790 So.2d 1267 (Fla. 1st DCA 2001), which, like this case, involved an injury date occurring years before the resultant date of disability, [3] is a prime example of how section 440.14(1)(d) should be employed to ensure that a claimant receives a fair and reasonable approximation of his or her AWW. Applying section 440.14(1)(d) in cases where the injury and resultant disability occur years apart and the claimant's earnings have significantly increased is not contrary to the legislative intent to have a standard method of computing AWW under subsection (1)(a)....

...05.24 required the expenditure of $544.69 in 2000. [4] Thus, if claimant's AWW is not adjusted to account for the effects of a declining dollar during such period, his earning capacity will have become substantially diminished. Consequently, because section 440.14(1)(a) does not produce an accurate approximation of claimant's probable future earning capacity, the fairness and reasonableness standard of section 440.14(1)(d) is not satisfied....

...(stating that the test for fairness and reasonableness is plain: "Does it produce an honest approximation of claimant's probable future earning capacity?"). I therefore conclude that the JCC abused his discretion in determining claimant's AWW under section 440.14(1)(a) by using his 1982 wages, and would reverse and remand with directions to compute claimant's AWW under section 440.14(1)(d), based upon his 2000 wages....

...nated on that date. In Eaton v. Pinebrook Place Health Care Center, 506 So.2d 1148 (Fla. 1st DCA 1987), this court reversed a deputy commissioner's order finding that the claimant's AWW should be based on her part-time earnings, and held as follows: Section 440.14(1)(b) provides that, in the event a claimant has worked less than ninety percent of customary full-time employment for the thirteen weeks prior to the injury, the AWW shall be determined by the wages of a similar employee; and if that method "cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used" pursuant to subsection 440.14(1)(d), unless the employee is found to be a part-time employee under subsection 440.14(1)(f)....

...(footnote omitted) 506 So.2d at 1149. Because the three factors indicating part-time employment were not established by competent substantial evidence in the record, this court remanded for a redetermination of the claimant's AWW as a full-time employee under either section 440.14(1)(b) or (1)(d), "whichever the deputy should find appropriate." Id....

...be able to return to 40-hour work weeks. In sum, since the claimant worked less than 90% of her customary full-time employment for the 13 weeks prior to her industrial injury, but does not meet the three requirements of a part-time employee, neither section 440.14(1)(a) nor (1)(f) are applicable. The JCC's determination of AWW is therefore reversed and the matter remanded for redetermination according to the wages of a similar employee [section 440.14(1)(b)] or, if that method cannot be reasonably and fairly applied, by using the claimant's full-time weekly wages [section 440.14(1)(d)]....

PER CURIAM. Tri Van Nguyen (Claimant) appeals a workers’ compensation order which ruled that pursuant to section 440.14(1), Florida Statutes (1991), Claimant is entitled to aver *311 age weekly wages (AWW) in the sum of $118.48, which he received from Plasties International, Inc., for part-time work at the time of his injury, and that Claimant’s concu...

...We approve the calculation of Ms. Thomas-Johnston’s average weekly wage on the basis of the pay she received for the six full *1236 weeks she worked before the accident. Because she had not worked the thirteen weeks immediately preceding the accident, section 440.14(1)(d), Florida Statutes (1989), applies....

...Appellant filed a claim for an increase in AWW to approximately $500. Following a hearing, the JCC determined that the only fair and reasonable way to determine AWW was to use appellant’s actual earnings. In so finding, the JCC rejected the 13-week method, as provided by section 440.14(l)(a), Florida Statutes (1987), because appellant had only worked ten calendar weeks prior to the accident. The JCC also rejected, after considerable discussion of the matter, the similar employee method, section 440.14(l)(b), because he believed such a method to be inappropriate when employees work on commission....

$200 weekly. Concurrent employment within Section 440.-14(l)(a), Florida Statutes (1981), was established

...On appeal to the Circuit Court the order of the full commission was reversed and the claimant’s compensation was fixed at $8 per week. The only point in the case is the correct basis for computing claimant’s weekly compensation. It is admitted that it is con *27 trolled by paragraph (3), Section 440.14, F.S.A....

...Following a hearing, the JCC found that entitlement to a fringe benefit is determined as of the time of the injury; therefore, the employer’s contribution for insurance could not be included in the claimant’s average weekly wage because it was no longer a tangible benefit on the date of the industrial accident. Section 440.14(1) states that “the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation.” We find the JCC’s decision to be in accord with a well-established body of...

PER CURIAM. Reviewing de novo the interpretation of section 440.14(l)(a) & (l)(d), Florida Statutes (1987), which is a question of law, see BellSouth Telecomm, Inc....

...y 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 *842 claimant has worked “during substantially the whole of 13 weeks immediately preceding the injury.” Since claimant in this case worked only seven of the 13 weeks preceding his injury, that section is inapplicable. The employer/carrier argues that the AWW assigned by the deputy was proper under § 440.14(l)(f)....

...he 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....

...of employment under s. 440.02(15)(b), F.S.” The JCC went on to hold that Reaves’ Postal Service earnings do not “fall within the purview of employment.” She therefore determined that such concurrent earnings could not be included in his AWW. Section 440.14(1), Florida Statutes (1993), addresses determination of AWW and provides: Except as otherwise provided in this chapter, the average weekly wages of *690 the injured employee at the time of the injury shall be taken as the basis upon wh...

...work-connected injury. It is the capacity of the “whole man” not the capacity of the part-time or full-time worker that is involved. Id.; accord Wal-Mart Stores v. Campbell, 714 So.2d 436, 437 (Fla.1998) (adhering to Trainer and explaining that section 440.14(l)(a) applies to calculations of AWW in concurrent employment cases); Vegas v....

...Appellant also contends that there is no competent, substantial evidence to support the deputy commissioner’s finding that TTD benefits were paid at a rate of $115.17 per week. We affirm in part, reverse and remand in part. In the order sub judice the deputy commissioner did not explicitly state which subsection of section 440.14, Florida Statutes, was used to determine the claimant's AWW. It is apparent, however, that the mathematical method used was that of section 440.14(l)(a)....

...The record, however, does not reveal what appellant’s total customary full-time hours of employment within the 13 week period were. Without a proper predicate in the record, we cannot say that the deputy commissioner erred in utilizing the method of section 440.14(l)(a)....

...therefore established the amount of AWW. On remand, in recalculating AWW the deputy shall determine the amounts paid to Mrs. Happle for her services as bookkeeper for the firm and shall exclude such sums in calculating appellee’s AWW. Pursuant to Section 440.14(l)(a), Florida Statutes (1983), where the claimant has been employed regularly during substantially the whole of the 13 weeks prior to the accident (as appellee has), AWW is to be measured by how much the claimant earned,, not necessarily how much he was actually paid during the time period....

...rder not inconsistent with this opinion. LARRY G. SMITH and SHAW, JJ., concur. . Whitman’s “average weekly wage,” the basis for his Chapter 440 benefit, was the average of his wages over the past thirteen weeks before his injuries, or $151.20. Section 440.14(1), Florida Statutes (1977)....

...kly wage was $370 per week with a corresponding compensation rate of $246 per week. He utilized the similar employees provision in section 440.-14(l)(b), Florida Statutes (1985), but then enhanced the “hours worked” to 50 hours per week based on section 440.14(l)(e), Florida Statutes (1989), on the basis that “[claimant's attorney proffered that claimant was a minor of less than 22 years of age.” In regard to the claim for TTD and/or TPD benefits, the JCC found claimant’s testimony to...

...1st DCA 1985); Pompano Roofing Co., Inc. v. O’Neal, 410 So.2d 971 (Fla. 1st DCA 1982). Turning now to the issues raised on appeal, we conclude based on an analysis of the pertinent statutory subsections and the evidence presented that the JCC failed to correctly apply section 440.14(l)(b), and erroneously enhanced claimant’s hours worked by virtue of section 440.14(l)(e)....

...(Such information would appear to have been adequately set forth in the E/C’s exhibit no. 14.) Thus, the JCC’s finding of AWW is not based on competent and substantial evidence, and further reflects an erroneous application of the law. Moreover, we hold the JCC erred in enhancing claimant’s hours worked by virtue of section 440.14(l)(e)....

...Based on the foregoing, we reverse the order to the extent that it increases claimant’s average weekly wage and remand the cause to the JCC for further proceedings to redetermine claimant’s AWW on the basis of a comparison of the average wages of a similar standby employee under section 440.14(l)(b)....

his average weekly wage as “seasoned income.” Section 440.14(l)(c), Florida Statutes. He, however, wholly

recomputation of the average weekly wage, pursuant to section 440.-14(l)(a), Florida Statutes (1987). Claimant did

1st DCA 1999) (observing that what is now section 440.014(c), Florida Statutes, presumes that an IC is

...ror, however, and we must reverse. The record before us suggests, contrary to the understanding of the parties and the judge of compensation claims (JCC), that appellee worked for substantially all of the 13 weeks before his injury and, accordingly, section 440.14(l)(a), Florida Statutes, would apply to the calculation of claimant’s AWW....

...AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion. BARFIELD and KAHN, JJ., and SHIVERS, Senior Judge, concur. Although not acknowledged by the parties, Morris’ receipt of full pay would have, in any event, resulted in a zero AWW. § 440.14(2), Fla....

wage using § 440.14(l)(a), it was the fairest determination of any method contained in § 440.14. The deputy

...ermination of the employer/earrier (E/C) that such should be based on a 20-hour workweek. Nothing in the record supports this determination, however. The parties agree that the claimant had worked 32 hours during his four days of employment and that section 440.14(l)(d), Florida Statutes (2003), governs the calculation of the AWW in this case....

...Under the ar *406 rangement with the employer the claimant had the privilege of a drawing account against commissions up to $75 per week. He did not “make a draw” during the critical 13 week period. The deputy commissioner considered himself bound by the specific language of Section 440.14(1), Florida Statutes, F.S.A....

...In fixing permanent partial disability he found a 20% impairment of wage-earning capacity. The Full Commission affirmed. We now have this order for review. The claimant contends that, because of the fluctuating nature of his weekly commissions and his three-year earning history, the deputy should have held that Section 440.14(1) could not be “reasonably and fairly” applied. In lieu thereof, he asserts that “the full-time weekly wages” formula of Section 440.14(3), Florida Statutes, F.S.A., should have been invoked. He insists that, at least, the deputy should be required to find that Section 440.14(1), supra, could be reasonably and fairly applied, when a claimant contends that it could not be. Section 440.14, Florida Statutes, F.S.A., provides that the average weekly wages of an employee “at the time of the injury should be taken as the basis upon which to compute compensation * * * ” Section 440.14(1), supra reads: “(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of thirteen weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said thirteen weeks.” Section 440.14(2), Florida Statutes, F.S. A., provides that the wages of a similar employee shall be used as the basis if the injured employee has not worked during substantially the whole of 13 weeks immediately preceding his injury. Section 440.14(3), supra, then provides: “(3) If either of the foregoing methods cannot reasonably and fairly be applied the full time weekly wages of the injured employee shall be used, except as otherwise provided in subsections (4) or (5) of this section.” The language of Section 440.14 (1), supra, seems quite clear and requires. no application of rules of statutory construction. The Legislature has established' “the average weekly wage”, as the basic unit for determining the amount of compensation. By Section 440.14(1), supra, it. has provided a method for arriving at the amount of the average weekly wage. If this method of calculation is factually available then it should be followed. In effect, the Legislature has prescribed that the method fixed by Section 440.14(1) is itself reasonable and fair when the facts before-the deputy fit the pattern cut by the Legislature. The “concurrent similar employee” meth-. od provided by Section 440.14(2), supra,, is to be used when the 13 weeks method, cannot be made applicable to the facts. If neither method can be applied, then, the reasonable and fair standard of full-time weekly wages under Section 440.14(3), may be used. For example, if an employee-has not worked substantially all of the preceding 13 weeks, and there is no concurrent similar employee, then the deputy may find that the methods prescribed by Sections 440.14(1) and 440.14(2), cannot reasonably and fairly be applied. With this finding he proceeds to apply “the full-time”' weekly wages rule of Section 440.14(3),....

...The discretion of the deputy does not enter the picture unless the specific standard fixed by the Legislature cannot otherwise be met. Adams v. Florida Industrial Commission, et al., Fla.App., 110 So.2d 455 , appeal dismissed, Fla., 115 So.2d 417 . When Section 440.14(3), supra, is brought into play the deputy should specifically find as a condition that the other methods cannot “reasonably and fairly” be employed....

...In Socalis the deputy expressly found that the employee, through no fault of his own, had worked only part time during the critical 13 weeks. Further, he found that there was no similar employee who had worked full time. He expressly found that Sections 440.14(1) and 440.14(2) could not reasonably and fairly be applied....

...r week. Thereafter, this was reduced to the statutory minimum of $8.00 per week. The claim was for further temporary total benefits and a determination of the “average weekly wage”. The deputy found Jackson to be a “part time employee” under Section 440.14(5), Florida Statutes, F.S.A....

...On review the Full Commission vacated the deputy’s order. It held that Jackson could not be a “part time employee” under the'statutory definition of that term, Section 440.15(5), supra, but rather that his *478 "average weekly wage” should be computed by using either Section 440.14(2) or Section 440.14(3)....

...ce, nor was there any indication that he would have remained a part time employee during the period of disability. We have held that the determination of the “average weekly wage” of an employee is governed by the several standards prescribed by Section 440.14, Florida Statutes, F.S.A....

...Florida Industrial Commission, Fla., 174 So.2d 404 . When a factual situation in a given case fits a particular statutory standard, then the latter should govern to the exclusion of any quasi-judicial discretion to the contrary. In the instant case, Section 440.14 (4), Florida Statutes, F.S.A., does not apply because the claimant was not a minor. Contrary to the view of the deputy, Section 440.14(5), supra, does not apply because Jackson was not a part-time employee within the statutory definition. J. J. Murphy & Son, Inc. v. Gibbs, Fla., 137 So.2d 553 . In Gibbs, supra, we noted that Section 440.14(5), Florida Statutes, F.S.A., would not apply to an employee who was employed full time by one employer and in addition part time in a dissimilar employment....

...the period of disability. Jackson had not “worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of thirteen weeks immediately preceding the injury.” Section 440.14(1), Florida Statutes, F.S.A....

...We hold that the length of employment prior to injury in a “concurrent” employment dissimilar from that producing the injury may not be combined with the time of employment in the injury-producing industry for the purpose of computing the time of employment under Section 440.14(1), supra. Thus, Section 440.14(1), supra, could not apply because of the dissimilarity between his ice plant employment and the injury producing employment, Consequently, having eliminated subsections (1), and (4) and (5) of Section 440.14, supra, only subsections (2) or (3) could be applicable....

...Al Landers Dump Truck, Inc., 170 So.2d 445 ; Waymire v. Fla. Ind. Comm., Fla., 174 So.2d 404 . Here the parties stipulated to the wages of a “similar employee” thus we can infer that there was such a person. We hold then that the proper basis for computing Jackson’s “average weekly wage” is Section 440.14(2), supra. On remand, the deputy need only determine the actual hourly rate within the stipulated limits and multiply it by the customary full-time hours of work per week in order to reach the average weekly wage. We need not consider Section 440.14 (3), Florida Statutes, F.S.A., the residual standard, because one of the specific statutory standards has been found applicable. Waymire v. Fla. Ind. Comm., supra. In so holding, we do not overlook the conclusion of the deputy that the use of Section 440.14(2), supra, would render the distinction between similar and dissimilar concurrent employment “meaningless”....

...rrent dissimilar employments, but rather consecutive dissimilar employments. In sum, we hold that (1) employment times in dissimilar concurrent employments are not to be combined in computing the length of employment for testing the applicability of Section 440.14(1), supra, and (2) Section 440.14(2), is the proper statutory basis for computing the average weekly wage in this case because of the stipulated existence of a “similar employee”. We also approve the holding in J. J. Murphy & Sons v. Gibbs, supra, that Section 440.14(5), is not to be applied in this factual situation. The order of the Full Commission is approved insofar as it directs the use of Section 440.14(2), and the cause should be remanded to the deputy with directions to make findings as to the actual hourly wages of a similar employee within the stipulated limits and the customary full-time hours of employment per week to he used in computing the claimant’s “average weekly wage”....

...Brown, 93 So.2d 584 (Fla., 1957); Stephens v. Winn-Dixie Stores, No. 34, 131, decided January 25, 1967. . Florida Statutes § 440.15(5) (c), F.S.A. . 2 Larson, The Law of Workmen’s Compensation, § 59.42 (1961). . The stipulation was made in contemplation of Florida Statutes § 440.14(2), F.S.A., because tlie employee had not been regularly employed for 13 weeks before he was injured....