By:

 

Michael Casto, Associate, Orlando

Every now and then I get a question about the minimum compensation rate in Florida. While the dollars may seem insignificant, fines from the state may be much worse if it is not calculated correctly.  Additionally, when the Supreme Court makes a decision on claimant attorney fees in the pending Castellanos v. Next Door Company, et. al case, this may be a costly oversight.

The statutory section that covers the minimum compensation rate is § 440.12(2). It reads :

[c]ompensation for disability resulting from injuries which occur after December 31, 1974, shall not be less than $20 per week. However, if the employee’s wages at the time of injury are less than $20 per week, he or she shall receive his or her full weekly wages. If the employee’s wages at the time of the injury exceed $20 per week, compensation shall not exceed an amount per week which is: (a) Equal to 100 percent of the statewide average weekly wage, determined as hereinafter provided for the year in which the injury occurred; however, the increase to 100 percent from 662/3 percent of the statewide average weekly wage shall apply only to injuries occurring on or after August 1, 1979; and (b) Adjusted to the nearest dollar.

The Legislature also added that “[f]or the purpose of this subsection, the “statewide average weekly wage” means the average weekly wage paid by employers subject to the Florida Reemployment Assistance Program Law as reported to the Department of Economic Opportunity for the four calendar quarters ending each June 30, which average weekly wage shall be determined by the Department of Economic Opportunity on or before November 30 of each year and shall be used in determining the maximum weekly compensation rate with respect to injuries occurring in the calendar year immediately following. The statewide average weekly wage determined by the Department of Economic Opportunity shall be reported annually to the Legislature.”

This can be broken down into language that is much easier to digest. Essentially, in Florida, the minimum compensation rate only applies if your average weekly wage is greater than $20.00, and then subsequently calculating the temporary total or temporary partial disability rate takes you below $20.00.  For example, if the AWW is $25.00, the temporary total disability formula would give you a weekly compensation rate of $16.68.  In this instance you would round up and use the minimum compensation rate, $20.00.  

If, on the other hand, the average weekly wage is $18.00 per week, you would use the actual earnings as the weekly compensation rate. Under this circumstance, the compensation rate would be $18.00. It would not be rounded up to $20.00.

If there are no earnings, such as a volunteer, the minimum compensation rate does not apply. You do not pay anything!

This also applies if the Claimant did not report his earnings for Federal income tax purposes. Recall that the compensation rate is calculated by using the Claimant’s pre-accident wages. Section 440.02(28) defines “wages,” in part, as monies earned and reported for Federal income tax purposes. Thus, if the Claimant did not report his earnings for Federal income purposes, the minimum compensation rate does not apply, because the average weekly wage is $0.00. 

Michael A. Casto | Attorney