City of Miami v. Knight

• Decision Date: 29 July 1987
• Docket Number: No. BO-211,BO-211
• Citation: 510 So.2d 1069,12 Fla. L. Weekly 1829
• Parties: 12 Fla. L. Weekly 1829 CITY OF MIAMI, Self-Insured, Appellant, v. James KNIGHT, Appellee.
• Court: Florida District Court of Appeals

Page 1069

510 So.2d 1069

12 Fla. L. Weekly 1829

CITY OF MIAMI, Self-Insured, Appellant, v. James KNIGHT, Appellee.

No. BO-211.

District Court of Appeal of Florida,

First District.

July 29, 1987.

Rehearing Denied Sept. 1, 1987.

Lucia A. Dougherty, City Atty. and Jorge L. Fernandez, Asst. City Atty., Miami, for appellant.

Joseph C. Segor, Miami; and Williams & Zientz, Miami, for appellee.

MILLS, Judge.

The City of Miami appeals from an order of the deputy commissioner granting its petition for modification of a 1981 order effective on the date of the instant order. The City further challenges the deputy's award of an additional $414.00 per month in permanent total disability benefits commencing 14 May 1980 based on the alleged improper use of Knight's workers' compensation benefit to reduce his City pension, pursuant to City ordinance. Claimant Knight cross-appeals the grant of the petition for modification. We affirm in part and reverse in part.

On 25 November 1975, Knight sustained a compensable back injury. The City accepted him as permanently totally disabled on 23 May 1980 and commenced paying PTD benefits. On 7 April 1981, the parties submitted a "straight stipulation" to a deputy commissioner for approval. Paragraph 6(a) of the stipulation stated:

Employee/claimant, JAMES KNIGHT, was administratively accepted as permanently and totally disabled on May 23, 1980; and, the employer/self-insured, CITY OF MIAMI, shall continue payments for that classification of disability so long as employee/claimant remained (sic) permanently totally disabled.

The stipulation was approved by the D/C by order of 9 April 1981.

The City continued paying PTD benefits until 1 March 1985 when it filed a "notice of suspension of compensation", contending that Knight had demonstrated the ability to work; the City did not seek modification of the 1981 PTD stipulation before suspending benefits. The City's action was based on a 28 February 1985 "employee earnings report" (Form BCL-19) indicating that Knight had worked as an insurance investigator at an annual salary of $23,500 for the calendar year 1984. It is undisputed that Knight had worked in the job earning comparable annual salaries for virtually the entire period the City had been paying PTD benefits.

Knight filed a claim for resumption of his PTD benefit and, on 16 September 1985, the City filed the instant petition for modification pursuant to Section 440.28, Florida Statutes (1985), alleging that Knight had reestablished a wage-earning capacity and was no longer entitled to PTD. The City also indicated that the petition was being filed in an abundance of caution, no modification order being necessary in that Knight had been voluntarily accepted as PTD in 1980; the April 1981 order had merely recognized that fact. On 26 November 1985, Knight filed an amended claim seeking, in addition to resumption of PTD benefits, additional PTD benefits commencing 24 May 1980 "inasmuch as the City has been taking an unlawful offset of worker's compensation benefits and paying only the City pension."

Knight's claims for benefits and the petition for modification were heard between January and May 1986. On 30 January 1986, the City presented evidence showing that Knight commenced employment in 1981 investigating taxicab accidents and handling the resulting insurance claims. He worked six-hour days Tuesday through Friday, and was "on call" at night and on Saturdays. The employer testified that Knight did not get the job as a special favor or because of a social or blood relationship. The job was not specially created for Knight and he performed it well. Knight was not working at the time of the final order herein, having been laid off when his employer's insurance company took over accident investigations.

No further evidence was received on the issues of modification or entitlement to resumption of PTD. Sometime in early 1986, Knight sought a rule nisi from the circuit court pursuant to Section 440.24(1), Florida Statutes (1985), seeking to require the City to resume PTD benefits until the ruling on the petition for modification. On 30 May 1986, the circuit court entered an order requiring the City to pay PTD from 1 March 1985 until that ruling. The City did not appeal this order, and paid the benefits owed in a lump sum.

At a 13 May 1986 hearing, evidence was taken on Knight's claim of unlawful offset of compensation benefits. Pension administrator Elena Rodriguez testified that Knight's total City pension was $1918.00 per month, which amount was reduced by Knight's workers' compensation benefits pursuant to City ordinance.

The D/C entered his final order on 23 June 1986. He found that Knight had worked as an investigator from early 1980 until October 1985. Based on the additional findings that Knight's injuries did not affect his performance, and that the position was not created or adjusted for him nor was it "sheltered" employment, he granted the City's petition for modification, holding that Knight was no longer PTD, citing Hall v. City of Jacksonville, 443 So.2d 326 (Fla. 1st DCA 1983) (a "change in condition" sufficient to modify PTD can be found from a change in wage-earning capacity even though physical condition remains unchanged). The D/C did not specify a date other than that of the final order on which Knight's eligibility for PTD was to cease.

The D/C made no findings of fact with regard to Knight's claim of unlawful offset of worker's comp benefits. He simply held that, because Knight's pre-injury average monthly wage was $2332.00, and he had received $1918.00 a month in pension benefits, he was entitled to a workers' compensation benefit of $414.00 per month from 25 May 1980 to the date of the order. (The order states the amount as $400.14, but this is clearly a scrivener's error).

The City filed a motion for rehearing, alleging that the petition for modification should have been granted as of the date of its discovery of Knight's employment, 1 March 1985, and that the City should be granted credit against future benefits for any PTD benefits paid after that date. It also alleged that the additional monthly award was improper in that Knight had always been paid the full workers' compensation benefit to which he was entitled. His pension amount had simply been reduced by that benefit amount pursuant to City Code Section 40-207(J), held valid in Hoffkins v. City of Miami, 339 So.2d 1145 (Fla. 3d DCA 1976) cert. den. 348 So.2d 948 (Fla.1977).

At the 17 July 1986 hearing on the motion, Knight's attorney appeared to concede that the City's position on the date for modification was correct, and the deputy requested preparation of an amendment to the final order establishing 1 March 1985 as the effective date of modification. However, Knight's attorney subsequently argued that the May 1986 circuit court order requiring payment of PTD until the ruling on the petition for modification required that the modification be effective only as of the date of that ruling. The D/C agreed, and held that the effective date of modification should remain the date of the final order, 23 June 1986. The ...