Cone Bros. Contracting v. Gordon, AV-235

• Decision Date: 19 June 1984
• Docket Number: No. AV-235,AV-235
• Citation: 453 So.2d 420
• Parties: CONE BROTHERS CONTRACTING and Whiting National Services, Appellants, v. James L. GORDON, Appellee.
• Court: Florida District Court of Appeals

Page 420

453 So.2d 420

CONE BROTHERS CONTRACTING and Whiting National Services, Appellants, v. James L. GORDON, Appellee.

No. AV-235.

District Court of Appeal of Florida,

First District.

June 19, 1984.

Rehearing Denied July 26, 1984.

Valerie A. Marshall, of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Orlando, for appellants.

Bill McCabe, of Shepherd, McCabe & Cooley, and J. David Parrish, of Hurt & Parrish, P.A., Orlando, for appellee.

WIGGINTON, Judge.

The employer/carrier appeal a workers' compensation order wherein the deputy ordered the E/C to pay to claimant a lump sum advance of all future permanent total disability benefits commuted to a present value of $106,984.33. The E/C raise three points for our review: (1) whether section 440.20(10), Florida Statutes (Supp.1978), as applied, amounts to an unconstitutional taking of the E/C's property without due process of law; (2) whether the lump sum award is in the best interests of the claimant and is reasonable under the circumstances, without resulting in material prejudice to the carrier; and (3) whether the award complies with the 1983 amendments to section 440.20, chapter 83-305, Laws of Florida. We affirm as to all three points.

Claimant, who was forty-five years old at the time of the hearing, married and having two minor children to support, was involved in an industrial accident on November 4, 1978. He was ultimately declared to be permanently and totally disabled and was awarded appropriate periodic benefits by order entered on November 25, 1980.

In May, 1983, claimant petitioned for a lump sum advance of all permanent total disability benefits pursuant to section 440.20(10), Florida Statutes (Supp.1978), ¹ alleging that such an advance would be in his best interests, would not materially prejudice the rights of the employer and carrier, and would be reasonable under the circumstances. At the hearing on the petition claimant introduced a financial plan and called as a witness the financial consultant who had prepared the plan, as evidence that a lump sum advance would be advantageous. Claimant also testified that he would follow the plan, which would result in his having a net monthly increase in income from approximately $665 to approximately $824, as well as afford him and, incidentally, his dependents, greater financial security. Claimant testified that his wife did not work, as it was necessary for her to remain at home and take care of him because of his permanent disability. The amount requested by claimant was derived by the consultant through use of a formula utilizing claimant's life expectancy, in accordance with the most recent United States Life Tables as required by section 440.20(10), the 4 percent discount factor, also mandated by the statute, and claimant's compensation rate.

In ordering the payment of the $106,984.33 lump sum, the deputy concluded that the E/C adduced no evidence that claimant's physical condition would improve or that his life expectancy would decrease. The deputy therefore rejected the E/C's argument that a lump sum advance would materially prejudice their rights by depriving them of the right to later challenge claimant's status as permanently and totally disabled if he were to regain his earning capacity or suffer a premature death. The deputy also pointed out that the probability of the happening of any contingency other than the claimant's life expectancy is to be disregarded under section 440.20(10).

Moreover, the deputy rejected the E/C's argument that the statutory discount rate of 4 percent, alone, materially prejudices their rights. Relying on this Court's decision in Sanford v. Alachua County School Board, 425 So.2d 112 (Fla. 1st DCA 1982), the deputy held that the fact the discount rate is less than investment market interest rates is an insufficient basis on which to deny a lump sum advance payment to an otherwise qualified claimant. He concluded that there was absolutely no evidence of material prejudice to the employer/carrier; the statutory 4 percent discount rate adequately protects the carrier's security interest; and a lump sum advance payment of all future permanent total disability benefits would be in claimant's best interests and reasonable under the circumstances.

Finally, the deputy held that the 1983 amendments to sections 440.20(10) and 440.20(11)(d), increasing the discount rate to 8 percent and limiting the amount to be advanced to $7,500 in any 48-month period, were substantive amendments and prospective only. Consequently, the deputy would not apply them to the instant case.

We first address the employer/carrier's third point, for should we agree with their position that the 1983 amendments are procedural, and therefore to be applied retroactively, we would then find it unnecessary to reach their constitutional argument made under Point I. However, we do not agree with the E/C on this point, and accordingly, affirm.

As claimant's injury took place in November, 1978, the statute applicable to claimant generally, for substantive purposes, is the 1978 supplemental version. Section 440.20(10), Florida Statutes (Supp.1978), provides that a lump sum award shall be computed at a 4 percent true discount.

In 1979, section 440.20(10) was renumbered as section 440.20(12) and was subdivided. See chapters 79-400 and 79-312, Laws of Florida. Section 440.20(12)(b), Florida Statutes (1979), continues to provide for a 4 percent discount rate.

However, in 1983, the legislature substantially amended section 440.20(12) and section 440.20(13) (formerly section 440.20(11), Florida Statutes (Supp.1978)), providing for an 8 percent discount rate and limiting a claimant's receipt of a lump sum advance payment in excess of $2,000, to $7,500 or twenty-six weeks of benefits in any 48-month period, whichever is greater. Chapter 83-305, Laws of Florida; section 440.20(12)(c) and (13)(d), Florida Statutes (1983). Although the effective date of these amendments was June 30, 1983, id, the E/C, nonetheless, would have us apply them to claimant's case, arguing that they are procedural in nature, as dealing primarily with the "amount and timing" of a lump sum advance.

Once again, we emphasize the venerable rule of statutory construction that absent clear legislative expression to the contrary, a law is presumed to apply prospectively. See Special Disability Trust Fund, et al. v. Motor and Compressor Company, 446 So.2d 224, 227 (Fla. 1st DCA 1984), and cases cited therein. Nothing in chapter 83-305 suggests that the 1983 amendments to sections 440.20(12) and (13), Florida Statutes (1979), should operate in any way other than prospectively. Nor are we persuaded that the amendments with which we are concerned herein are anything but substantive in nature. Both the increase in the discount rate to 8 percent and the $7,500 cap placed on the lump sum payments work to substantially reduce a claimant's award.

All parties had expectations, entitlements, and perceptions arising from the 1978 version of chapter 440. Specifically, sections 440.20(10) and 440.20(11)(d), Florida Statutes (Supp.1978), set forth those rights and liabilities, in the form of the amount and kind of benefits to be paid and received, "to enable a disabled claimant to become a self-sustaining and productive member of society." Herndon v. City of Miami, 224 So.2d 681, 682 (Fla.1969). We decline to ride roughshod over these rights and liabilities by accepting the E/C's argument. ²

By our holding that section 440.20(10), Florida Statutes (Supp.1978) is applicable in the instant case, we must necessarily decide the issue raised...