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What's Hot in Workers' Comp

Calculation of average weekly wage not always limited to money paid in 13-week period prior to work accident, but can include monies (bonus) earned during that period but is not received until later date outside that period.

Rita Noa v. City of Aventura and Florida League of Cities, DCA#: 21-0549; Panel Judges: Lewis, Bilbrey, B.L. Thomas; Decision date: Jan. 26, 2022

March 1, 2022

by Linda Wagner Farrell

The claimant worked as an executive assistant for the City of Aventura. After sustaining a compensable work accident on February 27, 2020, she continued to work and received an annual merit bonus on August 6, 2020. The bonus covered the employment period of July 24, 2019, to July 24, 2020. 

In her petition for benefits, the claimant asked for an adjustment to her average weekly wage to include the merit bonus pursuant to section 440.14 (1) (a), Florida Statutes. The employer/carrier argued that the average weekly wage should not include the post-accident earnings since she did not earn it until her employment anniversary date of July 24, 2020.

The lower court judge agreed and found that the claimant could not have earned the bonus prior to her work anniversary because she was not eligible until that time. The judge excluded the bonus from the average weekly wage calculation, and the claimant appealed. 

The First District Court of Appeals found that this case turned on a question of law, and their review was de novo. The court pointed out that 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. Wages are defined as the “money rate at which the service rendered is recompense under the contract of hiring in force at the time of injury,” Section 440.02 (28), Florida Statute.

The parties stipulated that the City of Aventura’s Pay Plan for 2019/20 governed payment of merit bonuses. The Play Plan indicates that a bonus is not automatic. Employees are eligible on their anniversary date, and bonuses are paid only if the employee is performing satisfactorily during the 52-week period on which the evaluation is based.

The court pointed out that it has consistently held that “wages” can be defined in terms of when they are “earned” rather than when they are “paid.” They went on to say that it would follow that the calculation is not always limited to money paid to the claimant in the 13-week period prior to an accident, but can include monies earned during that period but which a claimant does not receive until a later date outside that period. 

The court analogized the claimant’s merit bonus to profits or commissions at issue in prior cases and indicated that this should be treated in a like manner. The claimant clearly performed well during the 13-week period prior to her accident which led to her qualifying for the bonus, leading to the conclusion that she earned a quarter of the bonus during the 13 weeks prior to the date of the accident. The court noted that the underlying theory and purpose of calculating average weekly wage is simply a method of establishing the value of an employee’s lost ability to earn future wages during the period of disability due to the work accident.

The First District Court of Appeals reversed the order and remanded it back to the lower court judge to calculate the claimant’s average weekly wage to include a pro rata share of her performance bonus. 
 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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