TheimPacTofBonusesonThecalculaTionofTheaveraGeweeklywaGe
Workers Compensation Section Chairs : AnthonyCortese – AnthonyV . Cortese , AttorneyatLaw & Ya ’ SheakaWilliams – Quintairos , Prieto , Wood & Boyer , P . A .
Theaverageweeklywage includesmeritbonusespaid afterthe13weeksthatprecede theaccident , butearnedduring the13-weekperiod .
In Noa v . City of Aventura and Florida League of Cities , 333 So . 3d 731 ( Fla . dist . Ct . App . 2022 ), the First district Court of Appeal provided direction in the calculation of the average weekly wage ( AWW ) and issued an order ruling that the AWW includes a bonus paid after the 13 weeks that precede a work accident , but earned during those 13 weeks .
Florida statute 440.14 ( 1 )( a ) outlines the method to calculate the AWW and provides that if the injured worker has worked in the employment during substantially the whole of 13 weeks immediately preceding the accident , “ the average weekly wage shall be 1 / 13 of the total amount of wages earned in such employment during the 13 weeks . noa worked as an executive assistant and had a compensable on-the-job injury on February 27 , 2020 ,” Noa at 733 . Initially , her average weekly wage was calculated based solely on the 13 weeks of earnings that preceded the work accident . On August 6 , 2020 , she was paid an annual merit bonus that was earned from July 24 , 2019 , to July 24 , 2020 . After receipt of the merit bonus , she filed a Petition for Benefits seeking an adjustment
of the AWW to include a portion of the merit bonus .” Id . She argued that a portion of the merit bonus should be included in the calculation of her AWW pursuant to Florida statute 440.14 ( 1 )( a ). Id . The Employer / Carrier argued that the AWW was properly calculated because she was not entitled to an increase for postaccident earnings , as the bonus was not earned until her July 24 , 2020 work anniversary date . Id . The JCC agreed with the Employer / Carrier and found that her merit bonus should not be included in the calculation of the AWW , because she was not eligible for the bonus until after the 13 weeks that preceded the work accident . Id . The First dCA reversed and remanded the order denying the inclusion of the merit bonus in the calculation of the average weekly wage . Id . at 732-733 .
The First dCA addressed how under Florida statute 440.14 ( 1 )( c ) “ the average weekly wage should be 1 / 13 of the total amount of wages earned and such employment during the 13 weeks immediately preceding the accident .” Id . The First dCA analogized prior cases that discussed the payment of bonuses and wages . The First dCA has previously held that wages are defined in terms of when they are earned rather than when they are paid when determining the calculation of the average weekly wage . Id . The Court also noted that the claimant ’ s average weekly wage can include an injured worker ’ s share of corporate profits that were earned during the 13 weeks that precede the accident . Id . at 734 . Additionally , the First dCA referred to Witzky v . West Coast Duplicating & Claims Ctr ., 503 So . 2nd 1327 ( Fla . 1st dCA . 1987 ), where the Worker ’ s Compensation Commissions were included in the AWW because wages are defined by what is earned rather than when it is paid ; the AWW is not limited to money actually paid to the injured worker . The First dCA noted that in the case at bar , for the injured worker to receive the merit bonus , she had to have satisfactory performance of her job during the 52 weeks that precede the work accident . Id . at 734 . It also noted that receipt of the merit bonus indicated that her performance during the 52-week period was satisfactory . Id . Further ,
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