Linda Wagner Farrell

The claimant signed a seven-year Minor League Uniform Contract. Per the contract, his salary at the time of his accident was $1,500 per month to be paid over the five-month championship playing season. However, if necessary, he was expected to perform services on a calendar year basis for exhibition games, etc. 

The claimant argued his average weekly wage should be calculated at $1,500 x 12 months, or $18,000 per year. The employer/carrier argued $1,500 x 5 months (the playing season), or $7,500 per year, then divided by 12 months, for an average weekly wage of of $165.75. 

The judge of compensation claims took $1,500 per month divided by 4.3 weeks per month to yield an average weekly wage of $348.84, reasoning that the contract terms meant that the organization had control over the claimant’s activities for the entire year.

All agreed that the judge was to determine the average weekly wage under section 440.14(1)(d), the so-called catch-all provision, which 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.”

Under section 440.14(1)(d), the claimant’s full-time weekly wages are “determined prospectively by using either the contract of employment or the actual earnings on the job where Claimant was working at the time of the injury.” Able Body Temp. Servs. v. Lindley, 867 So. 2d 499, 500 (Fla. 1st DCA 2004) (citations omitted); see also Penuel v. Cent. Crane Serv., 232 So. 2d 739, 742 (Fla. 1970) (explaining full-time weekly wages are determined “by the ‘contract of employment’ or the ‘actual earnings,’ according to the circumstances of each case.”).

The First District Court of Appeal held that the judge of compensation claims abused his discretion in rejecting the terms of the contract and that there was no competent, substantial evidence to support that the claimant would have been paid $1,500 per month over 12 months. The contract expressly provided that he would receive his salary only during the five-month championship playing season. The case was reversed and remanded for the judge to determine
the average weekly wage under section 440.14(1)(d). 

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