Florida Injury Attorneys Blog
When computing the claimant’s Average Weekly Wage, “AWW” one must include “concurrent employment” if applicable. Fla. Stat. § 440.02(27). “Concurrent” is a term left undefined by Florida Workers’ Compensation Law, but case law suggests it means a “second job” or “moonlighting” that is expected to continue. Cato Corp. v. Stuart, 711 So. 2d 1375 (Fla. 1st DCA 1998). “Employment” is statutorily defined to mean “any service performed by an employee for the person employing him or her” but statutorily excludes work in four areas:
(1) domestic servants in private homes,
(2) most seasonal farming involving five or fewer regular employees,
(3) professional athletes, and
(4) community service imposed by a criminal sentence.
See Fla. Stat. § 440.02(16)(a)-(c) (2015).
For purposes of concurrent earnings, the phrase “any service performed” in the definition of “employment” in section 440.02(15)(a) “is extremely broad.” Reaves v. United Parcel Service, 792 So. 2d 688, 689–691 (Fla. 1st DCA 2001). In addition to the four exceptions, also excluded is any area of work for which coverage under the Florida Workers Compensation Law does not apply – such as an independent contractor. Anna Maria Fire Control Dist. v. Angell, 528 So. 2d 456 (Fla. 1st DCA 1988). As such, wages earned in such excluded areas of work cannot be included in the AWW as “concurrent employment.” See Jay Livestock Market v. Hill, 247 So. 2d 291 (Fla. 1971).
Regardless, one must keep in mind that the time of the performance of the second job or concurrent employment is most critical. See Newell v. Seaboard Contractors, 473 So. 2d 787 (Fla. 1st DCA 1985). If the claimant is not actually employed at the second job or concurrent employer at the time of the industrial accident, then wages from the concurrent employment are neither included nor made part of the Average Weekly Wage. Id. On the other hand, if the concurrent employment would not have continued after the accident, then the concurrent employment might not be included. Cato Corp. v. Stuart, 711 So. 2d 1375 (Fla. 1st DCA 1998). Therefore, the critical inquiry is whether the claimant, during the 13 weeks prior to his injury, held concurrent employment which was expected to continue. Gomez v. Murdoch, 520 So. 2d 600 (Fla. 1st DCA 1987).
Furthermore, as long as the concurrent employment is not within an excluded area of work, it must be included as wages even if the concurrent employer did not provide workers’ compensation coverage or its workers’ compensation coverage had lapsed. Tenneco, Inc. v. Montana, 520 So. 2d 615 (Fla. 1st DCA 1988). The sole fact that the concurrent employment is part-time work is by itself insufficient for excluding the concurrent earnings. See Tampa Elec. Co. v. Bradshaw, 477 So. 2d 624 (Fla. 1st DCA 1985).
As such, the long of the short of it is – if a Claimant suffers a workplace accident and has a concurrent employer at the time of the industrial accident, it is more likely than not that said wages will be included when calculating the Average Weekly Wage.
If you were hurt at work, call one of our dedicated and experienced worker’s compensation attorneys at Jo Ann Hoffman & Associates, P.A., to determine how to increase your AWW by means of concurrent employment.