City of Miami v. Jones, 90-3854

Decision Date17 January 1992
Docket NumberNo. 90-3854,90-3854
Citation593 So.2d 544
PartiesCITY OF MIAMI, Appellant, v. Richard JONES, Appellee. 593 So.2d 544, 17 Fla. L. Week. D291
CourtFlorida District Court of Appeals

Jorge L. Fernandez, City Atty., Ramon Irizarri and Kathryn S. Pecko, Asst. City

Attys., and Jay M. Levy, Miami, for appellant.

Mark L. Zientz of Williams & Zientz, Richard A. Sicking, Miami, for appellee.

SMITH, Judge.

The City appeals an order of the Judge of Compensation Claims (JCC) determining that it must reimburse claimant for offsets, in the amount of claimant's weekly compensation benefits, which were taken from claimant's monthly pension benefits for the period July 1, 1973 through August 1, 1989. The City contends that section 440.09(4), Florida Statutes, in effect at the time of claimant's accident, permitted the offsets. Although the statute was repealed, effective July 1, 1973, the City contends it was a substantive enactment and its repeal did not affect the City's entitlement to take the offsets. We agree and reverse.

Claimant, a former City of Miami police officer, suffered a compensable injury in the course of his employment on March 16, 1966. The City and claimant entered a stipulation on March 19, 1970, subsequently approved by the deputy commissioner, in which the parties agreed that claimant was permanently totally disabled (PTD), and that claimant was entitled to compensation at the rate of $42 per week commencing July 12, 1969. Prior to entry of this order, the City had granted claimant a disability pension effective July 12, 1969, in the amount of $648 a month. The City commenced payment of benefits effective July 12, 1969; however, the City offset the amount of claimant's weekly workers' compensation benefits from his monthly disability pension benefits so that his net income remained $648 per month. The City continued to take this offset through August 1, 1989, when the City stopped taking the offset following the supreme court's decision in Barragan v. City of Miami, 545 So.2d 252 (Fla.1989).

At the time of claimant's injury and the subsequent commencement of benefits, section 440.09(4) provided:

(4) When any employee of the state or of any political subdivision thereof or of any public or quasi-public corporation therein, or any person entitled thereto on account of dependency upon such employee, receives compensation under the provisions of this chapter by reason of disability or death of such employee resulting from an injury arising out of and in the course of employment with such employer, and such employee or dependent is entitled to receive any sum from any pension or other benefit fund to which the same employer may contribute, the amount of any payment from such pension or benefit fund allocable to any week with respect to which such employee or dependent receives compensation under this chapter shall be reduced by the amount of the compensation for such week; provided that if the amount of the payment from such pension or benefit fund allocable to any week is less than the amount of such compensation for such week only the amount of the pension or benefit payment allocable to such week shall be affected and the amount of the difference between the compensation and the pension or benefit payment allocable to one week shall not reduce the pension or benefit payment allocable to any subsequent week.

The effect of the statute was that when a public employee, entitled to a pension, was awarded workers' compensation, the compensation was deducted from the pension amount, if the pension was greater than the amount of compensation awarded; and where the pension was less than the amount of compensation awarded, the employer was required to pay only the amount of compensation awarded the employee. City of Miami v. Graham, 138 So.2d 751, 754 (Fla.1962).

In addition to the statute, the City had an ordinance, in effect since 1940, which also permitted the offset. When the legislature repealed section 440.09(4) effective July 1, 1973, the City relied upon its ordinance to continue taking the offsets for accidents occurring subsequent to July 1, 1973. However, in Barragan, the Florida Supreme Court ruled that Miami's city ordinance was preempted by the workers' compensation law and that section 440.21, Florida Statutes, which provides that no agreement by an employee to waive his right to compensation shall be valid, prohibited the City from deducting workers' compensation benefits. In so holding, the court stated that Hoffkins v. City of Miami, 339 So.2d 1145 (Fla. 3d DCA 1976), which had permitted the City to take the offset pursuant to its ordinance, after the repeal of section 440.09(4), was wrongly decided. The Barragan decision does not purport to adjudicate the right of the City to take an offset for pre-July 1, 1973 accidents.

Claimant filed a claim for benefits on October 27, 1989 seeking reimbursement for the pension offset which the City had taken for the period July 1, 1973 through August 1, 1989, amounting to approximately $48,000, as well as penalties, interests, costs and attorney's fees. With regard to the City's contention that section 440.09(4), in effect at the time of claimant's injury, gave the City the substantive right to take the offset, the JCC ruled that section 440.09(4) was a remedial statute which merely governed the manner in which monies are distributed and was procedural, so that when the statute was repealed in 1973, the City's right to take the offset ceased, pursuant to the Florida Supreme Court's decision in Barragan. In so ruling, the JCC determined that the Barragan decision had retroactive application. 1

In Sullivan v. Mayo, 121 So.2d 424, 428 (Fla.1960) the Florida Supreme Court said:

... It is well established in Florida that the substantive rights of the respective parties under the Workmen's Compensation Law are fixed as of the time of the injury to the employee. This is so because the acceptance of the provisions of the Workmen's Compensation Law by the employer, the employee, and the insurance carrier constitutes a contract between the parties which embraces the provisions of the law as of the time of the injury. Consequently, a subsequent enactment could not impair the substantive rights of the parties established by this contractual relationship....

While this case involved the repeal of a part of the Workers' Compensation Act, rather than an amendment to the Act, we believe the principle stated is no less applicable here.

It is well established that the amount of compensation or rate of compensation paid to a claimant is substantive in nature. Recon Paving, Inc. v. Cook, 439 So.2d 1019, 1021 (Fla. 1st DCA 1983) (by any standard, increasing or decreasing the dollar benefits payable for an industrial injury is substantive legislation). Claimant contends that the language allowing the offset on a week-to-week basis makes the statute remedial, and that the right of the parties would thus be governed by the law as it existed following the...

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17 cases
  • City of Miami v. Bell
    • United States
    • Florida District Court of Appeals
    • September 16, 1992
    ...those cases involving compensable injuries that occurred prior to the repeal of section 440.09(4) in 1973. E.g., City of Miami v. Jones, 593 So.2d 544 (Fla. 1st DCA 1992).5 The pertinent provisions of section 440.20 had not been significantly changed between 1985, the year in which Bell sus......
  • City of Miami v. Burnett, 91-784
    • United States
    • Florida District Court of Appeals
    • March 24, 1992
    ...1973, and therefore was not part of the law comprising the contract for benefits between the employer and employee. City of Miami v. Jones, 593 So.2d 544 (Fla. 1st DCA 1992). The order of the Judge of Compensation Claims is AFFIRMED. Claimant has filed a motion for award of attorney fees ag......
  • Adamides v. City of Miami
    • United States
    • Florida District Court of Appeals
    • October 28, 2004
    ...that the effect of section 440.09(4) was to require [or at least to allow] a reduction in compensation benefits," City of Miami v. Jones, 593 So.2d 544, 546 (Fla. 1st DCA 1992), when aggregate benefits that a public employer paid would otherwise have exceeded full pension At all pertinent t......
  • City of Miami v. Hammond, 91-3548
    • United States
    • Florida District Court of Appeals
    • March 8, 1993
    ...Claimant these illegally deducted benefits and pay penalties, interest, and attorney's fees. The City argues that City of Miami v. Jones, 593 So.2d 544 (Fla. 1st DCA), rev. denied, 599 So.2d 1279 (Fla.1992), 1 mandates reversal of this order. We need not reach that issue because the award m......
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