John F. Sharpless Workers Compensation Law Blog on Lawyers.com

Under Florida workers' compensation law, the amount of any compensation due to an injured worker is derived from  a measure of the claimant's pre-injury wage earning capacity called the Average Weekly Wage (AWW).  In most cases the AWW is determined by taking a 13 week average of the gross wages earned by the claimant prior to the accident or injury.  

The First District Court of Appeals recently was confronted with an ambiguity in the definition of wages.  (See Fast Tract Framing v. Caraballo, 1D07-1773) Florida Statute 440.02(28) does not specify whether wages "reported for federal income purposes" means wages reported by the employee in a tax return, or  wages reported by the employer in a payroll tax return.    The court held that the definition of wages only includes wages which the employee reports for Federal Income tax purposes.

This was a split decision and the dissenting opinion of Justice Padovano correctly points out that the court's decision will encourage employers to hire undocumented aliens and to compensate them with unreported cash payments.  Undocumented workers are covered under Florida workers' compensation law.  One of the primary reasons that they are covered is to remove incentives to Florida employers to hire them.  If they weren't covered, employers could profit by hiring undocumented workers over legal workers knowing that if they were injured or killed the business would not have to foot the bill.  However, if undocumenteds are covered, but their money benefits are only based upon wages that they report in tax returns, the incentive to hire illegals over lawful workers is back.  If the undocumented worker is disabled and unable to work, no money benefits are likely to be paid as this worker probably not reported his income on a tax return.  Therefore, it is better for the unscrupulous business to hire the undocumented worker over the legal worker. 

For more information about Florida Workers' Compensation law or Social Security Disability law, please visit our websites at www.tampaworkerscomp.com or  www.tampa-ssd.com