City of North Bay Village v. Cook
| Decision Date | 16 April 1993 |
| Docket Number | No. 92-00160,92-00160 |
| Parties | 18 Fla. L. Week. D1049 CITY OF NORTH BAY VILLAGE and Insurance Servicing and Adjusting Company, Appellants, v. James COOK, Appellee. |
| Court | Florida District Court of Appeals |
Iliana Forte of Almeyda & Hill, Miami, for appellants.
Karen K. Schroll, Miami, for appellee.
This cause is before us on appeal from an order awarding previously offset workers' compensation benefits pursuant to Barragan v. City of Miami, 545 So.2d 252, 255 (Fla.1989). The employer and carrier (E/C) contend that the judge of compensation claims (JCC) erred in denying the inclusion of state supplemental benefits in the calculation of claimant's average monthly wage.
On February 4, 1984, claimant was injured in a work-related accident. Claimant was accepted as permanently and totally disabled and has been receiving the maximum compensation rate allowable since the date of the accident. In addition, claimant receives the five-percent supplemental benefit paid pursuant to section 440.15(1)(e)1, Florida Statutes (1983).
On May 9, 1985, claimant began receiving disability retirement benefits from the City of North Bay Village, payable from the pension fund. This payment was reduced by the amount of claimant's workers' compensation benefits.
On June 25, 1990, claimant filed a claim for benefits, asserting that he was entitled to the previously-reduced workers' compensation benefits pursuant to Barragan, supra. At final hearing, the E/C argued that the supplemental benefits paid pursuant to section 440.15(1)(e)1, Florida Statutes (1983), should be added to the permanent total disability and pension benefits, but the sum cannot exceed the average monthly wage cap as set forth in Barragan. The JCC ruled that state supplemental benefits should not be included in the calculation of claimant's average monthly wage and, accordingly, awarded the full offset benefits.
In Barragan, supra, 545 So.2d at 255, the Supreme Court held:
The employer may not offset workers' compensation payments against an employee's pension benefits except to the extent that the total of the two exceeds the employee's average monthly wage. [emphasis added]
Section 440.02(6), Florida Statutes (1983), provides in pertinent part:
"Compensation" means the money allowance payable to an employee or to his dependents as provided for in this chapter.
Section 440.15(1)(e)1, Florida Statutes (1983), states in pertinent part:
In case of permanent total disability resulting from injuries which occurred subsequent to June 30, 1955, ... the injured employee shall receive from the division additional weekly compensation benefits equal to 5 percent of the injured employee's weekly compensation rate. [emphasis added]
Supplemental benefits are compensation payments provided under section 440.15(1)(e)1, Florida Statutes (1983), and should have been considered as part of claimant's total compensation payments in calculating the offset. Barragan, supra.
Accordingly, the order is reversed and remanded for proceedings consistent herewith.
ERVIN, J., dissents with written opinion.
In reversing the judge of compensation claims' (JCC's) refusal to include supplemental benefits in the calculation of claimant's average monthly wage, the majority does not discuss what effect Section 440.15(12), Florida Statutes (Supp.1990), has on the issue raised. Subsection (12) provides in part: "[N]othing in this chapter shall be construed to prevent the reduction of pension benefits paid by said [public] employer by the amount of workers' compensation payments paid by the employer." (Emphasis added.) This language is clear: It authorizes a public employer to reduce the pension benefits paid by it to the employee by the amount of workers' compensation payments also paid by it; however, it does not authorize the reduction of pension benefits if the employer does not pay compensation benefits.
Because claimant's injury occurred after June 30, 1955 and before July 1, 1984, the supplemental benefits paid to him were not paid by the employer, but rather by the Division of Workers' Compensation out of the Workers' Compensation Administration Trust Fund. Section 440.15(1)(e)1, Fla.Stat. (Supp.1990). As a consequence, supplemental benefits should not be included in the calculation of the worker's average monthly wage in determining the Barragan 1 offset. Although subsection (12) does not by its terms explicitly forbid a public employer from including the amount of supplemental benefits in an employee's average monthly wage when calculating the offset, such must be considered the obvious intent of the legislature after applying the statutory construction maxim "expressio unius est exclusio alterius," meaning the expression of one thing is the exclusion of another.
I am fully aware that subsection (12) did not go into effect until July 1, 1990, see Chapter 90-201, sections 20 and 121, at 934, 945 and 1042, Laws of Florida, after the occurrence of claimant's injury, and that normally the rights of the parties are fixed as of the date of injury. Nevertheless it appears that subsection (12) was merely, as the appellant acknowledges, a codification of the Barragan decision. As such, the amendment should be accorded retroactive application. Placing such a construction on the statute would make it consistent with this court's holdings in City of Miami v. Burnett, 596 So.2d 478 (Fla. 1st DCA), review denied sub nom., City of Miami v. Ogle, 606 So.2d 1164 (Fla.1992), and City of Daytona Beach v. Amsel, 585 So.2d 1044 (Fla. 1st DCA 1991), that Barragan is to be given retroactive application as of the date the invalid municipal ordinance became effective.
Moreover, section 440.15(12) should be considered a remedial statute and should for that reason be applied retroactively. A remedial statute does not establish a...
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