Belam Florida Corp. v. Dardy

• Decision Date: 30 April 1981
• Docket Number: No. VV-483,VV-483
• Citation: 397 So.2d 756
• Parties: BELAM FLORIDA CORPORATION; Federal Insurance Company, Appellants, v. Dallas DARDY, Appellee.
• Court: Florida District Court of Appeals

Page 756

397 So.2d 756

BELAM FLORIDA CORPORATION; Federal Insurance Company, Appellants, v. Dallas DARDY, Appellee.

No. VV-483.

District Court of Appeal of Florida, First District.

April 30, 1981.

H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.

R. Cory Schnepper of Ser, deCardenas, Levine, Busch & Allen, Miami, for appellee.

SHAW, Judge.

The claimant sustained a compensable accident arising out of and in the course of his employment on June 8, 1978, when he injured his left shoulder, left foot and, as a consequence thereof, developed thrombophlebitis. Temporary benefits were timely paid. The claimant reached maximum medical improvement on December 28, 1978, with a 35.5% permanent partial disability to the body as a whole. The record discloses that the payment of temporary total disability compensation may have continued for 9 weeks and 3 days beyond the date of maximum medical improvement. Based upon his belief that payments made as temporary total disability compensation should not be reallocated to permanent partial disability compensation and allowed as a credit against future payments of the same, the Deputy Commissioner refused to determine the amount of overpaid temporary benefits and to allow the carrier a credit against permanent benefits found due.

The employer sought, at the pretrial conference, to have the overpayment reclassified as permanent partial disability compensation. This attempt at reclassification resulted from fear that the Deputy Commissioner would disallow a credit as between different classes of benefits based upon the supreme court's decision in Schel v. City of Miami, 193 So.2d 170 (Fla.1967). A review of the following decisions postdating Schel appear to absolutely prohibit such credit. Total Appliance Repairs v. Nelson, 382 So.2d 1333 (Fla. 1st DCA 1980); Desfosses v. Carillon Hotel, 389 So.2d 228 (Fla. 1st DCA 1980); The Boeing Co. v. Bailey, IRC Order 2-3869 (July 30, 1979); Tampa Wholesale Co. v. Gores, IRC Order 2-3720 (February 26, 1979); Perkins v. Heller Bros. Packing Corp., IRC Order 2-3542 (September 20, 1978); Diplomat Hotel v. Badini, IRC Order 2-3494 (August 2, 1978). The employer concedes that the Deputy's denial of credit finds support in these cases, but hastens to add that the decisions result from a misinterpretation of the following paragraph from the Schel decision:

Rule 9, relied on by the commission, provides only for reimbursement "to the extent of the compensation paid." We think this provision, in the language of the statute, implies a limitation both as to the intent with which advance payments are made and as to surrounding circumstances permitting or preventing characterization of such payments as "payments of compensation" within the theory of the compensation law. In accord with the apparently prevailing view of courts construing similar provisions, we conclude that reimbursement for voluntary advance payment of permanent partial disability compensation must be limited to payments in the amount of and within the time for disability compensation of that class ultimately found to be due. (e. s.)

The underlined portion has led to the faulty conclusion that under no circumstances can an overpayment of one class of compensation be taken as a credit against compensation of another class ultimately found to be due. Upon reflection we conclude that Schel does not pose such a proscription. The thrust of the decision was to point out that in allowing credit for voluntary advance payments the Deputy must consider the intent with which the payments were made and the surrounding circumstances permitting or preventing the characterization of such payments as "payments of compensation," e. g., where credit is to be given for wages paid in lieu of compensation the amount of credit is not the amount of wages paid, but the amount of compensation due for the particular week, and the dollar excess cannot be carried over as a credit against other weeks of liability. Diplomat Hotel v. Badini, supra is often, cited for the proposition that voluntary advance payment of compensation is gratuitous except to the extent of payment "in the amount of and within the time for disability compensation of that class ultimately found to be due." Read out of context the statement is confusing and even misleading. The reason a credit was not allowed in Badini was that there was no carrier liability for additional permanent disability compensation and there was no order requiring the payment of additional temporary disability compensation covering the period of the asserted overpayment. The Commission correctly determined that there was no basis for credit and the overpayment was therefore a gratuity.

Schel, Badini and their progeny have apparently fostered the faulty impression that under no circumstances can overpayment of compensation in one class be applied as credit against compensation found to be due in another class. Such an ironclad rule has been shown to result in inequities. A more moderate approach, and one that we hereby adopt, presumes that any overpayment of compensation is a gratuity in the absence of a finding that a reasonable basis exists for the overpayment. If the Deputy finds such a basis the presumption is dissipated and he may allow the overpayment to be applied as a credit against compensation ultimately found to be due even though the compensation may be of another class. We expressly receded from any decision by this court to the contrary.

The failure of the Deputy to make a finding relative to the amount and reasonableness of the basis for the overpayment was error. The order is accordingly reversed and the cause is remanded for further proceedings consistent with this opinion. The award of attorney's fees should be reconsidered in light of this reversal. The remaining point on appeal is affirmed.

MILLS, C. J., and McCORD, ROBERT P. SMITH, Jr., ERVIN, BOOTH, LARRY G. SMITH, SHIVERS, and JOANOS, JJ., concur.

WENTWORTH, J., specially concurring with opinion.

THOMPSON, J., concurring with opinion.

THOMPSON, Judge, concurring.

I concur with the majority opinion that Schel v. City of Miami, 193 So.2d 170 (Fla.1967) does not require that an overpayment of compensation in one class can never be applied as a credit against, or reclassified as, compensation in another class found to be due.

In Schel, the claimant was paid his full salary while he was temporarily totally disabled, pursuant to a resolution adopted by the employer. As stated by the court, that resolution provided

for continuing wages during limited periods of temporary disability; providing further that all such payments "in excess of the amount the employee would otherwise be entitled to" under the (Workers' Compensation) Act shall be reimbursed to the employer out of any unpaid "installments of compensation due for any class of disability." (E.S.)

193 So.2d at 171. The Industrial Relations Commission ("the IRC")...