Florida Court Allows Bonus Paid After Date of Accident to be Added to Workers’ Compensation Wages Amount

Written by: Rayford H. Taylor, Esq.

The Employee, in the case of Noa v. City of Aventura and Florida League of Cities, appealed an Order of the judge of compensation claims (JCC) denying an increase in her average weekly wage (AWW).  The Employee contended she was entitled to include a pro rata share of her annual merit bonus in the calculation of her AWW for the thirteen weeks prior to her accident.  The Employer/Carrier contended the AWW was correct because the Employee was not entitled to an increase for post-accident earnings, arguing that she did not receive the bonus until after her industrial injury.  The Employee was injured on February 27, 2020 and continued to work.  On August 6, 2020 she received an annual merit bonus for the period of time from July 24, 2019 through July 24, 2020.  The JCC excluded any portion of the bonus from the AWW calculation.

The First District Court of Appeal interpreted the definition of wages in Section 440.02(28) F.S. and the method of calculating AWW set forth in Section 440.15(1)(a) F.S. to mean wages could be defined in terms of when they are “earned” rather than when they are “paid” in certain circumstances.  The Court ruled the merit bonus was considered to be analogous to profits or commissions which could have been earned during the thirteen weeks prior to the accident even though it was paid later.  The Court held that since the Employee’s performance was apparently satisfactory during the entire 52-week period leading up to her merit bonus, she had earned a quarter of the bonus during the thirteen weeks prior to the date of accident.

The First District reversed the trial judge’s Order and remanded the case back to recalculate the Employee’s AWW by including a pro rata share of her performance bonus in that calculation.  As a general rule, merit bonuses paid after the thirteen weeks of an industrial injury are not included.  However, this case involved a potential exception to the general rule.  Employers now need to carefully consider the basis for payment of a bonus or commission to an employee after the date of their industrial injury.

For more information on this case, or for any other questions regarding Florida or Georgia workers’ compensation law, contact Rayford H. Taylor, Esq. at (404) 954-6949 or rtaylor@hallboothsmith.com.