566 So. 2d 923

DUBOIS FARMS, INC. and United States Fidelity & Guaranty Company, Appellants, v. Marie Carmelle PAUL, Appellee.

No. 89-3345.

District Court of Appeal of Florida, First District.

Sept. 13, 1990.

*924Shelley M. Punancy of Beisler & Beisler, West Palm Beach, for appellants.

Gerald Piken and Paul E. Susz of The Law Offices of Gerald Pikén, P.A., North Miami, for appellee.

SMITH, Judge.

The employer/carrier (E/C) appeal an order of the Judge of Compensation Claims (JCC) awarding payment of doctor bills and including the cost of employer-provided transportation in claimant’s average weekly wage (AWW). We affirm.

The accident in which claimant was injured occurred when an employer-operated bus in which claimant was being transported to work suddenly swerved out of control and careened down an embankment. After the accident, the employer continued to transport claimant to the field, and only after she persistently complained of pain was she taken to the emergency room at Glades General Hospital, located in Belle Glade. After being treated and released the E/C offered follow-up care at a Delray Beach facility, rather than one located in Belle Glade, her home. Claimant testified, however, that she was in too much pain to make the trip to Delray. Claimant then began treatment with Dr. Kaplan, a chiropractor, and requested authorization from the E/C. The E/C responded by authorizing doctors 40-50 miles away from claimant’s home, even though they knew such a trip would be too difficult for claimant. Claimant filed a claim seeking authorization of Dr. Kaplan. Not until thirty-four days after the accident and twenty-four days after the request for authorization of Dr. Kaplan did the E/C authorize a local doctor, and by that time Dr. *925Kaplan and claimant had established a doctor-patient relationship. As we recently ruled in Chase v. Henkel & McCoy, 562 So.2d 831 (Fla. 1st DCA 1990), under the circumstances, claimant was justified in choosing to remain under the care and treatment of her treating chiropractor, Dr. Kaplan, pending a ruling by the JCC; and upon the JCC’s subsequent ruling that Dr. Kaplan’s treatment was reasonable and necessary, the E/C became responsible for payment of his bills. Id.

Next, the JCC properly included the cost of employer provided transportation in claimant’s AWW.1 Bright v. City of Tampa, 546 So.2d 1122 (Fla. 1st DCA 1989) (personal benefit derived by claimant, a police officer, through his use of city patrol car for transportation to and from work should be considered in calculating AWW); Carruth v. Allied Products Co., 452 So.2d 634 (Fla. 1st DCA 1984) (value of employer-provided transportation included in AWW); and Layne Atlantic Co. v. Scott, 415 So.2d 837 (Fla. 1st DCA 1982) (employer provided benefit representing a real and reasonably definite economic gain to the employee included in AWW).

The E/C argue that under the newly amended section 440.02(21), Florida Statutes (1987)2 an item must be either specifically listed in the definition of wages or be any other consideration that is gross income under the Internal Revenue Code. With regard to the latter, the E/C urges an analysis involving “gross income” defined in section 61 of the Internal Revenue Code and the accompanying deductions from “gross income” set forth in the Code.3

However, we do not agree with the E/C’s interpretation of the language of section 440.02(21). In section 440.02(21), the Legislature included “any other consideration received from the employer that is considered income under the Internal Revenue Code in effect on January 1,1987.” The Legislature did not say “gross income” or reference section 61 of the Internal Revenue Code which defines “gross income,”4 or otherwise evidence an intent that “wage” concepts under the workers compensation law should be governed by strict tax concepts of “gross income” under the Code and the Congressionally enacted exclusions from “gross income.” 5

Instead, it is our view that by its use of the word “income” in section 440.02(21), the Legislature intended this court to be guided by the broad concept of “income” under the Code in arriving at a determination of what consideration is includable in AWW.

“Income” for purposes of the Internal Revenue Code means all accessions to wealth, in any form, realized by a person, or from which a person receives a benefit. See Commissioner of Internal Revenue v. *926Glenshaw Glass Co., 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483 (1955); and Lonsdale v. CIR, 661 F.2d 71 (5th Cir.1981).

Thus, because employer provided transportation meets this definition, and falls within the same category as employer provided meals and lodging and represents a real and reasonably definite economic gain to claimant, we agree that the value of this benefit is includable in AWW.

AFFIRMED.

WIGGINTON and BARFIELD, JJ., concur.

Dubois Farms, Inc. v. Paul
566 So. 2d 923

Case Details

Name
Dubois Farms, Inc. v. Paul
Decision Date
Sep 13, 1990
Citations

566 So. 2d 923

Jurisdiction
Florida

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!