Brown v. S. S. Kresge Co., Inc.

Decision Date23 October 1974
Docket NumberNo. 44545,44545
Citation305 So.2d 191
PartiesVesta Mae BROWN, Petitioner, v. S. S. KRESGE COMPANY, INC., and the Florida Department of Commerce, Industrial Relations Commission, an Administrative Agency, Respondents.
CourtFlorida Supreme Court

Edward Schroll, Miami, for petitioner.

Charles Desmond Crowley, Fort Lauderdale, for respondents.

ERVIN, Justice.

We consider petition of employer S. S. Kresge Company, Inc., self-insurer of workmen's compensation benefits, and cross-petition of employee Vesta Mae Brown.

Petitioner Vesta Mae Brown was employed by Respondent S. S. Kresge Company, Inc., as a waitress. On December 24, 1970, she sustained a fall in her employment resulting in jury to her ankle, left hip, back, left wrist, right thumb, neck and a hernia. The Judge of Industrial Claims, by his order of December 27, 1972, allowed Petitioner temporary total disability benefits from March 8, 1971, to February 23, 1972, (date of maximum medical improvement) at the rate of $43.46 per week with 6% Interest per annum thereon; thirty-five weeks compensation for ten percent partial disability of the body as a whole at the rate of $43.46 with 6% Interest per annum thereon; reimbursement of all medical expenses of her accident and further medical care as the nature of her injury requires. At the compensation hearing Petitioner testified that after her injury she had not been able to return to work and was not able to do her normal household work.

Petitioner, after her injury, at the suggestion of employer's store manager, a Mr. Hawkins, filled out claim forms with employer's group insurance carrier, Aetna Insurance Company, and received sick leave benefits thereunder at the rate of $34.00 per week from March 16, 1971, to July 8, 1971. She paid for her medical treatment of her injury from her own Blue Cross/Blue Shield insurance. The sick leave benefits from Aetna were suspended when petitioner filed a claim for compensation with Respondent.

There was dispute in the testimony as to extent of Petitioner's average weekly wage as a waitress for Respondent. The Judge of Industrial Claims stated in his order that Petitioner's average weekly wage, including tips and meals, was $72.44. Respondent's testimony thereon only included Internal Revenue Service reports of Petitioner's wages and its attorney's statement concerning the value of her food and tips. It was stipulated by the parties that claimant's salary was $63.21 per week. The Petitioner testified that the reasonable value of the meals was a dollar per day for five days per week and that her tips averaged $12.00 per day for a five day week, or an average weekly wage of $135.21.

Both parties filed application for review of the Judge of Industrial Claims' order with the Industrial Relations Commission.

The Respondent employer complained the Judge erred in ordering future medical treatment and in not giving Respondent credit for the group insurance payments from March 16, 1971, to July 8, 1971, since Petitioner had not contributed to the cost of the group insurance policy. The Petitioner claimant complained there was no substantial evidence to support the finding which limits her average weekly wage to $72.44; there were insufficient findings as to Petitioner's meals and tips; and insufficient findings of fact regarding her wage earning capacity loss.

The Industrial Relations Commission reversed the order in one particular only, as follows:

'. . . Since the Judge below found that the employer had voluntarily provided group insurance benefits to the claimant and the claimant had not contributed regular payments to the premiums of the policy, the employer should be entitled to credit for the insurance benefits paid. An employer should not be required to pay the total amount of workmen's compensation benefits where the employer voluntarily and gratuitously provides a group health policy and the employee does not contribute to the premiums of that policy. Hoagey v. Jewell Tea Co., Inc., Supra (235 So.2d 289). The denial of this credit to the employer by the Judge below constitutes reversible error as a matter of law.

'Additionally, the Commission finds that the above-mentioned issue here on appeal is governed by I.R.C. Rule 9, which provides:

'When an employee is injured and the employer pays his full wages or any part thereof during the period of disability, or pays medical expenses for such employee, and the case is contested by the carrier, and/or the carrier and employer, and thereafter the carrier, either voluntarily or pursuant to an award, makes a payment of compensation or medical benefits, the employer shall be entitled to reimbursement to the extent of the compensation paid or awarded, plus medical benefits, if any, out of the first proceeds paid by the carrier in compliance with said voluntary payment or award, provided the employer furnishes satisfactory proof to the Judge or the Commission of such payment of compensation and medical benefits. . . .'

'With regard to the one other point on appeal and all points on cross-appeal, it appears that the Order is supported by competent substantial evidence in accordance with logic and reason. U.S. Casualty Co. v. Maryland Casualty Co., 55 So.2d 741 (Fla.1951).

'(T)he Order on appeal is accordingly reversed and remanded with instructions that the Judge of Industrial Claims enter an Order giving the employer/carrier credit for the benefits paid to the claimant under the group insurance.'

We find that the Industrial Relations Commission in applying inversely the cases of Hoagey v. Jewel Tea Co., Inc. (Fla.1970), 235 So.2d 289, and Chemstrand v. Enfinger (Fla.1970), 231 So.2d 816, to this case committed error. Those cases only go to the proposition that where a claimant has made weekly contributions to the premiums of a private group insurance plan the employer is not entitled to a credit on compensation benefits. There is no Florida law directly on point to the situation in this case. The question submitted here is whether sick leave benefits provided by an employer through group insurance coverage shall be credited on workmen's compensation injury benefits, or are sick leave benefits a part of the fringe benefits of the injured employee's employment contract. The Judge of Industrial Claims determined no credit was allowable. We agree to the extent indicated herein.

Section 440.21, Florida Statutes, provides that: 'No agreement by an employee to waive his right to compensation under this chapter shall be valid.' This statutory language would appear to preclude any implication that fringe benefit group insurance provided by employer for his employees would ipso facto reduce their compensation benefits.

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    ...Ark. 132, 398 S.W.2d 531; Vero v. Sacramento City Employees' Retirement System (1940) 41 Cal.App.2d 482, 107 P.2d 82; Brown v. S.S. Kresge Co. (1974) Fla., 305 So.2d 191; Belle v. General Electric Co. (1982) Fla.App., 409 So.2d 182; Beneteau v. Detroit Free Press (1982) 117 Mich.App. 253, 3......
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    ...an insurance plan to which he contributed. Id. at 291. The same rule was followed with respect to sick leave benefits, Brown v. S.S. Kresge Co., 305 So.2d 191 (Fla.1974), and pension benefits, regardless of whether the employee contributed to the funding of these benefits. Domutz v. Souther......
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