Disability Law

AWW and "Customary Hours" of Employment

By David A. McCranie, Esq.

Stubbs v. Bob Dale Construction, decided on 3/25/2008, illustrates just how complicated the computation of a claimant's average weekly wage ("AWW") can be.  That determination is governed by §440.14(1), Fla. Stat., which has seven subsections, (a) through (g).  Under subsection (a), if the injured worker has worked “substantially the whole of 13 weeks immediately preceding the accident,” then the AWW is 1/13^th of the total wages earned during that period.  The term “during substantially the whole of 13 weeks” means “not less than 75 percent of the total customary hours of employment” within that period. But what does the term “customary hours” mean?  That’s what was at issue in Stubbs.

Mr. Stubbs was employed as a project superintendent for Bob Dale Construction. Like most construction workers, he was paid only for the hours that he actually worked, and he worked only when work was available, i.e., he had no contract with his employer guaranteeing that he would necessarily work 40 hours per week. In fact, his 13-week wage statement showed that he worked an average of only 26 hours per week during the 13 weeks preceding his injury. His employer calculated his AWW using those hours. But Stubbs argued that those hours were not 75% of his “customary hours” of employment and that subsection (a) would therefore not apply. Although the JCC disagreed with his argument, on appeal the First DCA agreed and reversed.

The First DCA said that the JCC erred as a matter of law in determining the AWW because “customary hours” does not necessarily mean the “exact hours” that the claimant worked during the 13-week period. They noted that based upon evidence Stubbs introduced below, he actually worked an average of 36 hours per week during the 52 weeks preceding his injury, and that if that average is used as his “customary hours” of employment, he worked only 72% (26 hours ÷ 36 hours = .72) of his “customary hours” during the 13-week period.

But the First DCA didn’t necessarily agree with all of Stubbs’ arguments. He argued that since subsection (a) doesn’t apply, then subsection (d) should be used which would require a calculation based on his “full-time weekly wages” over a 52-week period. The First DCA said that on remand the JCC must determine whether Stubbs was a “full-time” or a “part-time” employee; if he was “part-time,” subsection (f) must be used to calculate the AWW rather than subsection (d).

The Stubbs case is remarkable for two other reasons. First, it illustrates the differing standards of review which may apply on appeal from a JCC’s decision in an AWW question. The First DCA said that the question of whether subsection (a) applied in this case was a “question of law;” therefore it was reviewed “de novo,” meaning that no deference was paid to the decision of the JCC on that question. But the Court also notes at one point that “vast discretion is owed to the JCC,” which would seem to indicate that the standard of review is “abuse of discretion.” The Court also noted that the question of whether Stubbs’ 36-hour weekly average equates to “full-time” or “part-time” employment is a “question of fact.” Under that standard of review, if there were another appeal, the JCC’s findings on that issue would be sustained if they were supported by “competent substantial evidence,” that is by any view of the evidence and its permissible inferences.    

Second, Mr. Stubbs was able to secure a reversal of the JCC's order pro se, that is, without an attorney.

Full post as published by Florida Workers’ Compensation Law Blog on March 31, 2008 (boomark / email).