GREAT CLEANING 

CORPORATION/ ASCENDANT 

ETC.,

Appellants,

v.

CARMEN BELLO,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-5776

_____________________________/

Opinion filed September 6, 2016.

An appeal from an order of the Judge of Compensation Claims.

Edward R. Almeyda, Judge.

Date of Accident: May 6, 2015.

Kimberly J. Fernandes of Kelley Kronenberg, P.A., Tallahassee, for Appellants.

Ramon Malca and Jeffrey I. Jacobs of Malca and Jacobs, P.A., South Miami, for 

Appellee.

PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) challenges

the Judge of Compensation Claims’ (JCC’s) calculation of Claimant’s average 
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weekly wage (AWW). We reverse and remand because the JCC erroneously 

concluded that the calculation method under section 440.14(1)(a), Florida Statutes 

(2014), does not apply.

Background

Claimant moved to Florida in 2010 and has worked full-time almost 

continuously since her arrival. Part of this time, from the end of October 2014 

through March 2015, she worked full-time selling clothes at her daughter’s shop. 

Claimant’s work for her daughter did not qualify as “employment” as defined in 

chapter 440. Claimant stopped working in her daughter’s shop in March 2015, when 

her daughter could no longer afford to pay her.

During the time Claimant worked for her daughter, she also began a part-time 

cleaning job with the E/C. She cleaned a clubhouse approximately two hours a day, 

seven days a week, for a flat fee of $300.00 twice a month. Her part-time work 

continued for three months until April 2015, when she switched to full-time cleaning 

work after stopping work with her daughter. Claimant continued cleaning the 

clubhouse, but also was paid $9.00 per hour to clean houses for the E/C. Although 

the E/C described the additional work as “on call,” Claimant worked no less than 

eight hours per day almost every day from April 10, 2015, through May 6, 2015. 

While Claimant cleaned a house on May 6, 2015, she fell from a ladder and 

fractured her left ankle. The E/C accepted compensability of the workplace injury, 
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authorized medical care, and began payment of temporary disability benefits. 

Claimant subsequently filed a petition for benefits (PFB) seeking additional 

temporary compensation benefits based on an increase in the AWW to $577.50. As 

of the date of the final hearing on the AWW claim, Claimant had not been placed at 

maximum medical improvement from her injury. Testimony from the E/C suggested 

that, absent the injury, Claimant would still be working full-time. 

At the final hearing, the parties stipulated that the correct calculation of the 

AWW was the sole issue for adjudication. The E/C asserted that the correct AWW

is $251.96 based on Claimant’s earnings during the thirteen week period prior to 

Claimant’s accident and beginning February 1, 2015. During the final hearing, 

Claimant’s attorney argued that the AWW should be calculated using only the 

earnings from her full-time work for the E/C, which was from April 10, 2015, 

through May 6, 2015, and that the correct AWW is $520. In the final order on 

appeal, the JCC concluded that the AWW should be calculated using only 

Claimant’s full time wages from April 16, 2015, through May 6, 2015: a time period 

of twenty-one days. Although the JCC calculated an AWW of $653.83 using the 

payments during this time period, he ultimately ruled that the AWW could be no 

more than $577.50, the amount originally sought by Claimant in the PFB and pretrial 

stipulation. 
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Analysis

In workers’ compensation, the standard of review for a question of law is de 

novo. See Mylock v. Champion Int’l, 906 So. 2d 363, 365 (Fla. 1st DCA 2005). 

Section 440.14(1) delineates how to compute a claimant’s AWW and provides in 

pertinent part:

(1) Except as otherwise provided in this chapter, the average 

weekly wages of the injured employee on the date of the accident 

shall be taken as the basis upon which to compute compensation 

and shall be determined . . . as follows:

(a) If the injured employee has worked in the employment in 

which she or he was working on the date of the accident, 

whether for the same or another employer, during substantially 

the whole of 13 weeks immediately preceding the accident, her 

or his [AWW] shall be one-thirteenth of the total amount of 

wages earned in such employment during the 13 weeks. As used 

in this paragraph, the term “substantially the whole of 13 

weeks” means the calendar period of 13 weeks as a whole, 

which shall be defined as the 13 calendar weeks before the date 

of the accident, excluding the week during which the accident 

occurred. The term “during substantially the whole of 13 

weeks” shall be deemed to mean during not less than 75 percent 

of the total customary hours of employment within such period 

considered as a whole. 

. . .

(d) If any of the foregoing methods cannot reasonably and fairly 

be applied, the full-time weekly wages of the injured employee 

shall be used, except as otherwise provided in paragraph (e) or 

paragraph (f). 

. . .
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(f) If it is established that the injured employee was a part-time 

worker on the date of the accident, that she or he had adopted 

part-time employment as a customary practice, and that under 

normal working conditions she or he probably would have 

remained a part-time worker during the period of disability,

these factors shall be considered in arriving at her or his average 

weekly wages. For the purpose of this paragraph, the term “parttime worker” means an individual who customarily works less 

than the full-time hours or full-time workweek of a similar 

employee in the same employment. 

(Emphasis added). Under the plain language of the statute, the AWW calculation 

must be made in accordance with paragraph (a) if the statutory conditions are 

satisfied. See Wal-Mart Stores v. Campbell, 714 So. 2d 436, 438 (Fla. 1998) 

(holding that plain language of statute means that resorting to alternate method of 

AWW calculation under section 440.14(1)(d) is not sanctioned where paragraph (a) 

applies). 

Here, the JCC concluded that the thirteen-week calculation method under 

section 440.14(1)(a) could not apply because Claimant’s work history prior to the 

thirteen-week period established a pattern of full-time work. Notably, an earlier 

version of paragraph (a) provided that “the term ‘during substantially the whole of 

13 weeks’ shall be deemed to mean during not less than 90 percent of the total 

customary full-time hours of employment within such period considered as a whole.” 

§ 440.14(1)(a), Fla. Stat. (2002) (emphasis added). In 2003, however, the statute was 

amended to reduce the percentage to 75 percent and to eliminate the modifier “full-
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time.” § 440.14(1)(a), Fla. Stat. (2003). Thus, in accordance with the change in law, 

and contrary to the JCC’s apparent assumption, the application of paragraph (a) is 

not dependent on the evidence of “full-time hours of employment.” 

Instead, as indicated in the first sentence of paragraph (a), the proper analysis

begins with a determination of “the employment” in which the injured employee was 

working on the date of the accident. In Campbell, the claimant worked for one

employer for the full thirteen weeks, but also worked part-time in a concurrent job 

for another employer during the last six weeks of that time period. 714 So. 2d at 437.

As in the instant case, the claimant’s wages were substantially higher during the last 

part of the relevant thirteen week period immediately prior to the accident and would 

have continued at that higher amount absent the workplace injury. Nevertheless, the 

supreme court in Campbell concluded that, under the plain language of the statute, 

the AWW paragraph (a) applies “in all cases where a claimant has worked in one 

employment for substantially the whole of thirteen weeks prior to an industrial 

accident but has worked in a concurrent employment for only a portion of the 

thirteen-week period.” Campbell, 714 So. 2d at 437. In reaching this conclusion, 

the supreme court expressly disagreed with this court’s interpretation that section 

440.14(1)(a) applies “only ‘when the injured employee has been continuously 

employed full-time in the same employment . . . .’” Id. at 438 quoting Wal-Mart 

Stores v. Campbell, 694 So. 2d 136, 140 (Fla. 1st DCA 1997). 
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Here, although Claimant had been working full-time for the E/C for three 

weeks, it is undisputed that she worked in one employment for the E/C for 

substantially the whole of the thirteen weeks prior to her accident. For that 

reason, Campbell controls and the AWW must be calculated using the method set 

forth in paragraph (a).1

Conclusion

Because the JCC erred in his calculation of Claimant’s AWW, we find it 

unnecessary to address the E/C’s second point on appeal concerning the JCC’s 

decision to cap the increased AWW by the amount claimed by Claimant in the pretrial stipulation as opposed to the amount claimed during the final hearing. 

Accordingly, we REVERSE the order below and REMAND for a determination of 

Claimant’s AWW consistent with this opinion.

WOLF, B.L. THOMAS, and OSTERHAUS, JJ., CONCUR.

 

1 We note that section 440.14(1)(f), allows a JCC’s AWW determination to account 

for an injured worker’s most recent work status in the opposite situation—where a 

worker adopted part-time employment and would have remained a part-time worker.

But this statute doesn’t cover the converse situation, like here, where the Claimant 

had recently adopted full-time work with the E/C and expected to remain a full-time

worker.