Cape Canaveral Hosp., Inc. v. Nickell

• Decision Date: 30 January 1996
• Docket Number: No. 95-856,95-856
• Citation: 668 So.2d 219
• Parties: 21 Fla. L. Weekly D320 CAPE CANAVERAL HOSPITAL, INC. and Sedgwick, Inc., Appellants, v. Sandra NICKELL, Appellee.
• Court: Florida District Court of Appeals

Page 219

668 So.2d 219

21 Fla. L. Weekly D320

CAPE CANAVERAL HOSPITAL, INC. and Sedgwick, Inc., Appellants, v. Sandra NICKELL, Appellee.

No. 95-856.

District Court of Appeal of Florida,

First District.

Jan. 30, 1996.

Rehearing Denied March 7, 1996.

An Appeal from an Order of Judge of Compensation Claims; J. Paul Jones, Jr.

Herbert A. Langston, Jr. and Julia M. Pinnell of Langston, Hess & Bolton, P.A., Maitland, for appellants.

Gray M. Camfield of Alpizar & Gray, P.A., Palm Bay; and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellee.

KAHN, Judge.

In this workers' compensation appeal, the issues raised by appellant concerning whether appellee suffered an injury by accident and whether the judge of compensation claims (JCC) properly awarded periods of temporary total disability benefits and temporary partial disability benefits are factual matters. The JCC sits as the finder of fact where the testimony is conflicting, and this court will not reweigh the evidence so long as the JCC's findings are supported by competent substantial evidence. Accordingly, we have no alternative but to affirm the judge's finding of an injury and the award of benefits. The JCC's refusal to apply an offset for certain disability insurance benefits paid to appellee, however, presents a legal error that we are empowered to correct.

Appellee Sandra Nickell injured herself at work on July 22, 1993, one day before her resignation was to take effect. As an employee benefit, she had a disability insurance policy with Paul Revere Life Insurance Company (Paul Revere). The employer paid premiums to Paul Revere until May of 1993, one month before appellee's resignation. This premium covered the period until the next premium payment was due in November 1993. Although Nickell was able to keep the disability policy, she had no further obligation to pay premiums. The policy provided for a waiver of premium when a disability had continued for 90 days. The first 90 days of disability are excluded from coverage by the terms of the policy. Paul Revere eventually began paying disability benefits under its policy and established a commencement date retroactive to October 20, 1993, 90 days after the injury. Nickell testified she mailed in the premium for November 1993; however, the insurance company returned the payment because of the waiver of premium provision. Under these facts, we conclude that the term of Nickell's disability under the insurance policy began during the period for which the employer had paid premiums.

In Brown v. S.S. Kresge Co., Inc., 305 So.2d 191, 194 (Fla.1974), the supreme court held:

[I]t is reasonable to conclude that workman's compensation benefits when combined with sick leave insurance benefits provided by employer should not exceed claimant's average weekly wage because under a logical interpretation of the I.R.C. Rule 9 when an injured employee receives the equivalent of his full wages from whatever employer source that should be the limit of compensation to which he is entitled.

The court reiterated this general principle in Barragan v. City of Miami, 545 So.2d 252 (Fla.1989). The rule fashioned in Barragan provides that "the employer may not offset workers' compensation payments against an employee's pension benefits...