10-4949 MAUTICO GARCIA-LOPEZ, v. AFFORDABLE PLUMBING/VININGS INSURANCE CO.

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State: Florida

Court: Florida First District Court

Docket No: 10-4949

Case Date: 07/18/2011

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA MAURICIO GARCIA-LOPEZ, Appellant, v. AFFORDABLE PLUMBING/VININGS INSURANCE CO., Appellee. _____________________________/ Opinion filed July 18, 2011. An appeal from an order of the Judge of Compensation Claims. Stephen L. Rosen, Judge. Date of Accident: August 28, 2008. John J. Rahaim, II, of Rahaim, Watson, Dearing & Moore, P.A., Jacksonville, for Appellant. Hinda Klein and Karen E. Berger of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D10-4949

VAN NORTWICK, J. In this workers' compensation appeal, Mauricio Garcia-Lopez, Claimant, challenges an order of the Judge of Compensation Claims (JCC) denying his claim

for temporary disability benefits. Affordable Plumbing/Vinings Insurance Co., the Employer/Carrier (E/C), cross appeals the JCC's grant of certain temporary partial disability benefits. Claimant, a minor, injured his back on August 28, 2008, while working for Affordable Plumbing in violation of federal immigration laws and section 450.061(1)(f), Florida Statutes (2008), prohibiting employment of children under the age of sixteen in heavy work in the building trades. The JCC found that Affordable Plumbing employed Claimant through an intermediary, also an employee of Affordable Plumbing, who Claimant testified was aware of his age and was responsible for bringing him to the United States from Mexico unlawfully for the purpose of working for the employer in Jacksonville. After Claimant was injured carrying a heavy boiler at a construction site, the E/C eventually authorized medical care, but denied a claim for temporary disability benefits based, in part, on the contention that Claimant had no wages to establish an average weekly wage because Claimant did not report his wages for federal income tax purposes. For the reasons that follow, we reverse the issues raised on appeal and affirm the issues raised on cross appeal. The JCC concluded that Claimant's unrefuted testimony that he filed an income tax return did not constitute competent substantial evidence that Claimant reported his wages for federal income tax purposes unless the documents Claimant testified he filed with the Internal Revenue Service were also introduced into 2

evidence. This was error. Although section 440.02(28), Florida Statutes (2008), defines wages as those "wages earned and reported for federal income tax purposes," nothing in section 440.02(28), or elsewhere in the Workers' Compensation Law, requires that a tax return be introduced into evidence. The JCC did not reject Claimant's testimony as untruthful, but invoked the best evidence rule to conclude that Claimant's testimony was not competent substantial evidence that Claimant reported his wages. This was erroneous because the best evidence rule addresses the admissibility of evidence, not its weight. See

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