Dixon v. Pasadena Yacht & Country Club
Decision Date | 27 April 1999 |
Docket Number | No. 98-1064.,98-1064. |
Citation | 731 So.2d 141 |
Parties | George DIXON, Appellant/Cross-Appellee, v. PASADENA YACHT & COUNTRY CLUB and Alexsis, Inc., Appellees/Cross-Appellants. |
Court | Florida District Court of Appeals |
Dana L. Greenbaum of Greenbaum & Bergman, St. Petersburg, for Appellant/Cross-Appellee.
Jeffrey S. Breslow, Miami, Amicus Curiae, for Appellant/Cross-Appellee.
G. Dennis Lynn, Jr., of Holland & Knight LLP, St. Petersburg, for Appellees/Cross-Appellants.
Three issues are raised in this appeal and cross-appeal: (1) whether permanent total disability (PTD) supplemental benefits are a "collateral source" subject to the 100 percent cap on average weekly wage (AWW) discussed in Escambia County Sheriff's Department v. Grice, 692 So.2d 896 (Fla.1997); (2) whether social security retirement benefits are a "collateral source" subject to the 100 percent AWW cap discussed in Grice; and (3) whether it was error to award PTD supplemental benefits to claimant after he had reached age 65. We reverse the first issue based on Americana Dutch Hotel v. McWilliams, 24 Fla. L. Weekly D624 (Fla. 1st DCA Mar.3, 1999), and affirm the third, see Scott v. Mohawk Canoes, 24 Fla. L. Weekly D567 (Fla. 1st DCA Feb.18, 1999), without further discussion. As to the second issue, which is one of first impression, we conclude that social security retirement benefits are not "collateral source" benefits as contemplated in Grice, and that application of the 100 percent AWW cap and offset was error.
Claimant, George Dixon, suffered a compensable back injury on February 11, 1992, when he was 61 years old. He was determined to be permanently and totally disabled on August 13, 1993, at the age of 63, and began receiving PTD benefits. Claimant turned 64 on March 21, 1994, and thereafter began receiving social security retirement benefits.1 By order dated February 16, 1998, he was awarded PTD supplemental benefits from March 21, 1995, his 65th birthday. Nevertheless, the total amount that he could receive from PTD, PTD supplemental and social security retirement benefits was capped at 100 percent of his AWW pursuant to Grice, thereby allowing the employer/carrier to offset the amount of social security retirement benefits claimant received.
We find no authority for an offset in regard to social security retirement benefits. Nothing in chapter 440, Florida Statutes, provides any support for such a reduction. Section 440.15(3)(b)7, Florida Statutes (1991), allows an offset against wage loss benefits paid an injured worker who also receives social security retirement benefits, but that statute is clearly inapplicable to this case, because claimant is being paid PTD and PTD supplemental benefits—not wage loss. Our court, moreover, has narrowly construed the statute and refused to expand the deduction provided in section 440.15(3)(b)7 to any other class of benefits. See, e.g., Dental Arts Lab, Inc. v. Constantino, 531 So.2d 999 (Fla. 1st DCA 1988)
(. ) Consequently, we find no authority for extending the offset provided in section 440.15(3)(b)7 to PTD or PTD supplemental benefits.
Section 440.15(9)(a), Florida Statutes (1991), likewise provides no authority for this offset. This statute permits a reduction of workers' compensation benefits based on receipt of social security disability benefits. It, too, has been narrowly construed and applied. See Good Housekeeping Gas Co. v. Kitler, 492 So.2d 700 (Fla. 1st DCA 1986)
( ); Carballo v. Warren Mfg. Co., 407 So.2d 603 (Fla. 1st DCA 1981) ( ). Because claimant is not receiving social security disability benefits, and, in fact, is no longer eligible for such benefits as he is over the age of 65, section 440.15(9)(a) provides no authority for the offset.
Other offsets allowed under chapter 440 based on receipt of unemployment compensation and pension disability benefits payable by a public employer, see sections 440.15(10) and (12), Florida Statutes (1991), are likewise inapposite under the circumstances of this case.
The only other conceivable statute arguably permitting the offset the employer claimed is also inapplicable. Section 440.20(15), Florida Statutes (1991), states:
approved, 452 So.2d 932 (Fla.1984), in which we said:
Id. at 218-19 (footnotes omitted). Accord Morrow v. Amcon Concrete, Inc., 433 So.2d 1230 (Fla. 1st DCA 1983)
(, approved, )452 So.2d 934 (Fla.1984). And see Industrial Claim Appeals Office of State...
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...Nolan v. Delta Airlines, 733 So.2d 1076 (Fla. 1st DCA 1999), review denied, 743 So.2d 508 (Fla. 1999); Dixon v. Pasadena Yacht & Country Club, 731 So.2d 141 (Fla. 1st DCA 1999), review dismissed, 753 So.2d 565 (Fla.2000). Additionally, Lombardi has raised the spectre of many unintended cons......
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State v. Herny
...as that term is used in Escambia County Sheriffs Department v. Grice, 692 So.2d 896, 898 (Fla. 1997). See Dixon v. Pasadena Yacht & Country Club, 731 So.2d 141 (Fla. 1st DCA 1999) (social security retirement benefits do not constitute a "collateral source" which may be offset against worker......
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State v. Herny
...as that term is used in Escambia County Sheriffs Department v. Grice, 692 So.2d 896, 898 (Fla.1997). See Dixon v. Pasadena Yacht & Country Club, 731 So.2d 141 (Fla. 1st DCA 1999) (social security retirement benefits do not constitute a "collateral source" which may be offset against workers......