City of Pensacola v. Winchester

• Decision Date: 18 April 1990
• Docket Number: No. 89-999,89-999
• Citation: City of Pensacola v. Winchester, 560 So.2d 1273 (Fla. App. 1990)
• Parties: 15 Fla. L. Weekly D1036 CITY OF PENSACOLA and Travelers Insurance Company, Appellants, v. Paul WINCHESTER, Appellee.
• Court: Florida District Court of Appeals

Page 1273

560 So.2d 1273

15 Fla. L. Weekly D1036

CITY OF PENSACOLA and Travelers Insurance Company, Appellants, v. Paul WINCHESTER, Appellee.

No. 89-999.

District Court of Appeal of Florida First District.

April 18, 1990.

Rehearing Denied June 7, 1990.

Thomas F. Condon, Bruce A. McDonald, Pensacola, for appellants.

Barry Silber of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellee.

JOANOS, Judge.

In this workers' compensation appeal, the City of Pensacola and Travelers Insurance Company (employer/carrier) challenge an order of the judge of compensation claims, which awarded compensation benefits and rejected employer/carrier's defense of entitlement to an offset for pension benefits. The issues concern the propriety of the judge's rulings that (1) the employer must pay worker's compensation benefits which, when combined with the claimant's pension disability benefits, exceed the claimant's pre-injury average weekly wage; and (2) the employer is not entitled to any offset in workers' compensation benefits due to the pension benefits paid by the employer to the claimant. We affirm.

Claimant is a City of Pensacola firefighter, who retired due to hypertension and cardiovascular disease. During his twenty-three years of active service with the city, claimant contributed eleven percent of his wages to his pension benefit plan with the city. Upon his retirement in February 1988, claimant began receiving in-line-of-duty disability retirement benefits. See § 112.18(1), Fla.Stat. (1987).

Article VI of the Pensacola City Code governs the pension benefits at issue in this case. Section 4(c) of the pension fund code provides for the claimant's mandatory contributions to the fund. Although two types of benefits are paid to retired firefighters, depending upon whether the retirement was due to in-line-of-duty disability or illness, or due to the normal course of events, the amounts of the benefits paid are the same. Benefits paid under both retirement procedures come from the general pension fund. However, pursuant to subsection 4(m) of the pension fund code, the city must reimburse the firemen's pension fund for every dollar paid to an in-line-of-duty retired firefighter. For internal operating convenience, rather than reimburse the pension fund at the end of each fiscal year as provided by the code, the city pays the pension benefits directly to the retired firefighter from the city's operating fund.

Section 24(1) of the pension fund code contemplates the circumstances existing in this case, where a city firefighter becomes disabled in the line of duty, and thus becomes eligible to receive both pension and workers' compensation benefits. Section 24(1) of the pension fund code provides:

(1) If any employee eligible to [for] the benefits of this act shall die under such circumstances as to entitle his widow or children to benefits hereunder, such widow or children shall be entitled to receive such benefits in addition to any workmen's compensation payable to them or any of them; and in the event of disability of any pensioner, he shall be entitled to such pension as is hereby provided in addition to any workmen's compensation that may be payable to him.

At the hearing on this matter, an administrator who has worked for ten years in the day-to-day operation and administration of the firefighters pension fund, testified that the city has interpreted section 24(1) of the pension fund code to mean that there is no offset, i.e., up until the instant controversy, in-line-of-duty retired firefighters have received both their disability pension and their workers' compensation benefits. The parties stipulated that the combined total of claimant's workers' compensation benefits and his in-line-of-duty pension benefits exceeds his pre-retirement average weekly wage by slightly more than one hundred dollars per week.

In rejecting the employer/carrier's claim that they were entitled to reduce any workers' compensation benefits due by the amount of pension benefits received by the claimant, the judge of compensation claims found, among other things, that the pension plan was a part of the claimant's overall benefit plan and was funded by employee contributions. As such, the judge concluded there was nothing inherently unjust about claimant's combined pension and workers' compensation exceeding his pre-injury average weekly wage. We agree.

Resolution of this case turns upon the interplay of the Workers' Compensation Act, various provisions of the claimant's employment agreement, and case law dealing with the propriety of an offset in the context of combined pension and workers' compensation benefits. After twenty-three years of service as a Pensacola fireman, claimant in this case retired at age 48, pursuant to the statutory presumption that--

[a]ny condition or impairment of health of any Florida municipal ... fireman caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence....

§ 112.18(1), Fla.Stat. (1987). See Smith v. City of Miami, 552 So.2d 245 (Fla. 1st DCA 1989).

Article VI, § 24 of the Pensacola Code, provides that "in the event of disability of any pensioner, he shall be entitled to such pension as is hereby provided in addition to any workmen's compensation that may be payable to him." (Emphasis supplied.) Article VI, Section 4(m) of the Pensacola Code requires the City to reimburse the firemen's relief and pension fund "for the total amount of pensions or benefits paid to employees, their widows or children, whose disability or death was incurred in the line of duty." (Emphasis supplied.)

Employer/carrier in this case contend that the decision in Barragan v. City of Miami, 545 So.2d 252 (Fla.1989), establishes their entitlement to an offset of workers' compensation benefits due to pension benefits paid to claimant by the city. In Barragan, in response to a certified question, the supreme court ruled that a judge of compensation claims may apply section 440.21, Florida Statutes, to award an increase in the amount of workers' compensation to offset reductions made in a claimant's pension benefits pursuant to a contractual provision. The case involved a City of Miami ordinance which provided for the offset of pension benefits against workers' compensation benefits. The court noted that Chapter 440 has preempted local regulation on the subject of workers' compensation, and that section 440.21 prohibits an employer from deducting workers' compensation benefits from an employee's pension benefits. In ruling that the...