47 Fla. L. Weekly D297c

RITA NOA, Appellant, v. CITY OF AVENTURA and FLORIDA LEAGUE OF CITIES, Appellees. 1st District. Case No. 1D21-0549. January 26, 2022. On appeal from an order of the Office of the Judges of Compensation Claims. Sylvia Medina-Shore, Judge. Date of Accident: February 27, 2020. Counsel: Amie E. DeGuzman, Jacksonville, for Appellant. David M. Schweiger and Damian H. Albert of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, Fort Lauderdale, for Appellees.

(PER CURIAM.) Claimant, Rita Noa, appeals an order of the Judge of Compensation Claims (JCC) denying her petition for an increase in her average weekly wage (AWW). Claimant contends that the JCC erred in not including the pro rata share of her annual merit bonus and misapplied the standard for earnings during the 13 weeks prior to her accident. For the reasons that follow, we agree that it was error not to include a portion of the Claimant’s bonus and reverse the order.Factual Background

The relevant facts are undisputed. Claimant is an executive assistant for the City of Aventura Police Department. On February 27, 2020, Claimant sustained a compensable on-the-job injury. She continued to work and on August 6, 2020, received her annual merit bonus for the period from July 24, 2019, to July 24, 2020.

Subsequently, Claimant filed a petition seeking an adjustment to her AWW to include a portion of the merit bonus, arguing it should have been included pursuant to section 440.14(1)(a), Florida Statutes. The Employer/Carrier contended the AWW was correctly calculated because Claimant was not entitled to an increase for post-accident earnings, arguing that Claimant did not earn the bonus until her July 24, 2020, anniversary date.

The JCC agreed and found that Claimant could not have earned the bonus prior to her anniversary, in part because she was not eligible for the bonus until that time. Thus, the JCC excluded the bonus from the AWW calculation and this appeal followed.Discussion

Because the salient facts are undisputed and the case turns on a question of law, our review is de novo. See Airey v. Wal-mart/Sedgwick, 24 So. 3d 1264, 1265 (Fla. 1st DCA 2009). Section 440.14(1)(a), Florida Statutes (2019), in relevant part, provides as follows:

[The] average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks [immediately preceding the accident].

(emphasis added). Wages are defined as the “money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury . . . .” § 440.02(28), Fla. Stat. (2019) (emphasis added).

During the proceedings below, the parties agreed that the City of Aventura Pay Plan for 2019/20 (“Pay Plan”) governed the payment of merit bonuses. The Pay Plan does not speak in terms of wages earned or paid, however; rather, it defines the eligibility requirements for the bonus. One such requirement is that merit bonuses are not automatic, employees are eligible for them on their anniversary date, and the bonuses are based on the employee performing satisfactorily during the 52-week period on which the evaluation is based.

In the context of determining the AWW, this Court has consistently held that “wages” within the meaning of section 440.02(28) can be defined in terms of when they are “earned” rather than when they are “paid” in certain circumstances. It follows that the calculation of AWW is not always limited to money paid to a claimant in the 13 weeks prior to an accident but can include monies earned during the 13-week period but which a claimant does not receive until a later date outside that period. See, e.g., K-C Elec. Co. v. Walden, 122 So. 3d 514 (Fla. 1st DCA 2013) (holding that the claimant’s AWW included his or her pro rata share of corporate profits where profits were almost entirely the direct result of personal management and endeavor and therefore were earned); Pishotta v. Pishotta Tile & Marble, 613 So. 2d 1373 (Fla. 1st DCA 1993) (holding that profits earned by the claimant’s employer, a corporation in which claimant was a 50% shareholder, could be considered in the AWW calculation); Witzky v. West Coast Duplicating & Claims Ctr., 503 So. 2d 1327 (Fla. 1st DCA 1987) (holding that commissions were includable in the AWW because the definition of wages as “earned’ rather than “paid” indicates AWW is not limited to money actually paid to the claimant).*

Here, Claimant’s merit bonus is analogous to the profits or commissions at issue in the foregoing cases, which warrants treating it in a like manner. Clearly, Claimant qualified for the bonus on her anniversary date, and per the employer-drafted Pay Plan, it was based on her satisfactory performance during the 52-week period in which the evaluation is based. Therefore, had Claimant not performed satisfactorily for any of the 13 weeks prior to her accident, she might not have qualified for the bonus, and her eventual receipt of the merit bonus indicates that her performance was satisfactory during the entire 52-week period, leading to the conclusion that she earned a quarter of the bonus during the 13 weeks prior to the date of accident.

This interpretation comports “with the underlying theory and purpose of calculating AWW, which is 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.” Witzky, 503 So. 2d at 1329.

The entire objective of wage calculation is to arrive at a fair approximation of claimant’s probable future earning capacity. [Her] disability reaches into the future, not the past; [her] loss as a result of injury must be thought of in terms of its impact on probable future earnings, perhaps for the rest of [her] life.

Id. at 1330 n.1, quoting 2 Larson, The Law of Workmen’s Compensation, §60.11(d) (1985).

We therefore reverse the order and remand for the JCC to calculate Claimant’s AWW in accordance with this opinion and include a pro rata share of her performance bonus.

REVERSED and REMANDED. (LEWIS and BILBREY, JJ., concur; B.L. THOMAS, J., dissents with opinion.)

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*The dissent points to the policy consideration our supreme court acknowledged in Wal-Mart Stores v. Campbell, 714 So. 2d 436 (Fla. 1998) that “in recurring situations” it is beneficial to have a “fixed method of calculation to apply” when determining the correct AWW. Id. at 438. But that case involved concurrent employment in which the injured employee worked just six weeks in her second job prior to the accident and the question was whether, in such a situation, subsection 440.14(1)(a) or (1)(d) applies, and the court held it is the former. And that is the subsection we apply now. Unlike here, in Campbell there was no question concerning what constituted “wages” or when the claimant earned them.

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(B.L. THOMAS, J., dissenting.) I respectfully dissent, as the Judge of Compensation Claims correctly ruled that Appellant had not yet “earned” her bonus in the applicable thirteen-week wage period under section 440.14(1)(a), Florida Statutes:

However, we also recognize the benefit of having a fixed method of calculation to apply in recurring situations so that employers, employees, and insurers can readily make the calculation without having to resort to a decision by a JCC. 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.

Wal-Mart Stores v. Campbell, 714 So. 2d 436, 438 (Fla. 1998).

The majority opinion allows for consideration of an amount of money earned as a bonus that did not accrue until after the fixed thirteen-week period specified in the plain text of section 440.14(1)(a) which, as the supreme court held in Campbell, must be based on a “fixed method of calculation.” In fact, the bonus was not earned until after the accident at issue.

I would affirm and therefore dissent.* * *