Concurrent employment is something that comes up quite frequently in Florida workers’ compensation cases. As people have to work two jobs in order to make ends meet, this creates an unfortunate situation when an injury on one job prevents the injured worker from working at the second job.
Correctly calculating the average weekly wage in a Florida workers’ compensation case is extremely important, as it determines the injured worker’s lost wage benefit. When an injured worker has concurrent employment, i.e. two or more jobs in the thirteen weeks leading up to the accident, the wages earned at both jobs may be included in calculating the injured worker’s average weekly wage.
As we have discussed in prior blog posts covering average weekly wage: Under most circumstances, if the individual works substantially the whole of the 13 weeks before the accident, (defined as at least 75% of those 13 weeks), then the average weekly wage is calculated by taking the total earnings total money earned by the claimant during the 13 week period.
This post will focus on how concurrent employment impacts the calculation of an average weekly wage in a Florida workers’ compensation case.
The first issue is whether the second job is considered “covered employment”. Most concurrent employment will be considered covered employment if it is the type of job that subjects the employer to cover employees with workers’ compensation coverage. For example, if the second employer has four or more employees, it is likely covered employment. What is not “covered” concurrent employment are jobs such as hobby businesses, work for small employers (less than 3 employees), side businesses/sole proprietorship by the injured worker, or work as an independent contractor.
Whether the second job is “covered employment” is an extremely important question—if it’s covered employment, the concurrent employment wages go into calculating the average weekly wage. If it’s not covered employment, they do not serve to increase the average weekly wage.
This consequence-either including the concurrent employment wages or not-is extremely important. Most people who work two jobs are doing so because they absolutely have to in order to make ends meet. If that worker is now receiving lost wage benefits only based on the wages for the employer involved in the accident, it can be devastating. Given what’s at stake here, either making ends meet or not, the absolute only silver lining for an injured worker who engaged in non covered concurrent employment is that post injury wages from the non covered employment will not count against the injured worker when offsetting temporary partial disability benefits. The Florida Supreme Court held that where non covered, concurrent earnings are excluded from the determination of the average weekly wage, those same earnings must be excluded in the determination of post recovery earning capacity. (Christian v. Carolina Freigh, 571 So.2d 524 (Fla. 1st DCA 1991) citing Parrott v. City of Ft Lauderdale, 190 So.2d 326 (Fla. 1966). This is a complex idea to get across, so the following hypothetical will demonstrate how the scenario plays out in a situation:
Bob works for a large company as his first job and works for a screen repair company (with two employees) on nights and weekends. Bob has an injury at his first job. The money he earns repairing screens in the full thirteen weeks before the accident will not be counted towards calculating his average weekly wage.
Bob is given light duty restrictions by his workers’ compensation doctor, with no lifting over 20 pounds. Bob’s first job tells him they cannot accommodate his restrictions, so he is to receive Temporary Partial Disability benefits.
Repairing screens are within his weight lifting restriction, so Bob continues to do that at the same rate he did prior to the accident: on nights and weekends.
In this situation, Bob’s post injury wages will not be offset against his Temporary Partial Disability benefits. Therefore, he will receive the full Temporary Partial Disability benefit and receive his pay from repairing screens.
Now, if we change the hypothetical to reflect the second job was in fact covered employment, the scenario would play out differently. In that scenario, the wages from the second job would be included in calculating his average weekly wage. In this scenario, the average weekly wage would be higher, but Bob’s earnings from the second job would offset his Temporary Partial Disability benefits.
The questions of what is covered employment or whether concurrent employment earnings effect workers’ compensation benefits can be highly complex and are extremely fact-specific. Therefore, you should not rely on the hypothetical above in your case, but rather speak with a workers comp attorney in Tampa regarding your work injury case. If you have a question about concurrent employment or any other workers’ compensation question, contact our office to speak with one of our work injury attorneys for a free consultation.