City of Miami v. Smith, 90-1599
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | CAWTHON; JOANOS; ZEHMER; ZEHMER; CAWTHON |
| Citation | 16 Fla. L. Weekly 906,602 So.2d 542 |
| Parties | CITY OF MIAMI, Appellant, v. Charles SMITH, Appellee. 602 So.2d 542, 16 Fla. L. Week. 906 |
| Docket Number | No. 90-1599,90-1599 |
| Decision Date | 04 April 1991 |
Page 542
v.
Charles SMITH, Appellee.
First District.
On Motion for Rehearing and/or
Clarification April 13, 1992.
Jorge L. Fernandez, City Atty., Kathryn S. Pecko, Asst. City Atty., Miami, for appellant.
Mark L. Zientz, of Williams & Zientz, Miami, for appellee.
CAWTHON, Senior Judge.
The City of Miami has appealed a workers' compensation order awarding claimant, Charles Smith, pension offset benefits. On appeal, appellant contends: (1) the Judge of Compensation Claims did not have jurisdiction to award pension offset benefits; (2) competent substantial evidence does not support an award of pension offset benefits for the years 1975 and 1976; and (3) the Judge of Compensation Claims erred in finding that "should total benefits from the claimant's workmens' (sic) compensation entitlement and pension award exceed his average monthly wage, that the claimant is still entitled to maximum compensation benefits until such time as he is properly credited for $20,431.00 in personal accumulated contributions which were retained by the City and out of which, in part, his disability benefits were paid."
We affirm the order of the Judge of Compensation Claims and strike the alternative finding. First, the Judge of Compensation Claims has jurisdiction to consider an award of additional compensation for a pension offset. See, Barragan v. City of Miami, 545 So.2d 252, 253 (Fla.1989); City of Miami v. Knight, 554 So.2d 549, 550 (Fla. 1st DCA 1989); rev. denied, 567 So.2d 434 (Fla.1990).
On the second issue, the testimony of claimant and the administrator for the City of Miami Firefighters and Police Officers Pension Trust, as well as pension fund documents, constitute competent substantial evidence supporting the judge's finding that pension offsets were taken beginning July 25, 1975 and continuing until July 31, 1989. Based upon competent, substantial evidence supporting the order, we affirm the order and the award of pension offset benefits for the period specified in the order.
Page 543
The judge's alternative finding is not supported by legal authority or competent substantial evidence. The Judge of Compensation Claims found that should total benefits from the workers' compensation and pension awards exceed claimant's average monthly wage, claimant is still entitled to maximum compensation benefits until he...
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...paid by employer); Domutz v. Southern Bell Telephone & Telegraph Co., 339 So.2d 636 (Fla.1976) (pension); City of Miami v. Smith, 602 So.2d 542 (Fla. 1st DCA 1991) (city pension); K-Mart v. Young, 526 So.2d 965 (Fla. 1st DCA 1988) (disability insurance furnished by All parties substantially......
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City of Miami v. Smith, 91-527
...of abandonment relates to the prior pension offset dispute between the parties ruled upon by this court in City of Miami v. Smith, 602 So.2d 542 (Fla. 1st DCA 1992) (on motion for rehearing and/or clarification). In that case, the order from which the City took an appeal stated that should ......