Eaby v. VOLUSIA COUNTY FIRE SERVICES

• Decision Date: 06 March 2000
• Docket Number: No. 1D99-2347.,1D99-2347.
• Citation: 752 So.2d 119
• Parties: Alan EABY, Appellant, v. VOLUSIA COUNTY FIRE SERVICES and County of Volusia, Appellees.
• Court: Florida District Court of Appeals

752 So.2d 119

Alan EABY, Appellant, v. VOLUSIA COUNTY FIRE SERVICES and County of Volusia, Appellees.

No. 1D99-2347.

District Court of Appeal of Florida, First District.

March 6, 2000.

Geoffrey Bichler, Winter Park, for Appellant.

C. Anthony Schoder, Jr., of Smith, Schoder & Roddenberry, P.A., Daytona Beach, for Appellees.

PER CURIAM.

In this workers' compensation case, the claimant appeals an order of the judge of compensation claims (JCC) allowing the employer and carrier (E/C) to include cost-of-living increases to the claimant's in-line-of-duty state disability retirement benefits in the calculation of the workers' compensation offset. Based on recent decisions of this court and the Florida Supreme Court, we reverse and remand with directions to exclude cost-of-living increases to the claimant's disability retirement benefits from calculation of the offset. See, e.g., City of Clearwater v. Acker, 755 So.2d 597 (Fla.1999)

; State v. Herny, 24 Fla. L. Weekly D2467, ___ So.2d ___, 1999 WL 979474 (Fla. 1st DCA Oct.29, 1999); Alderman v. Florida Plastering, 748 So.2d 1038 (Fla. 1st DCA 1998),

approved,

755 So.2d 604 (Fla.2000). As in Herny, we certify to the supreme court the following question of great public importance:

WHEN CALCULATING THE OFFSET FOR DISABILITY RETIREMENT BENEFITS PURSUANT TO ESCAMBIA COUNTY SHERIFF'S DEPARTMENT V. GRICE, 692 So.2d 896 (Fla.1997), IS THE EMPLOYER ENTITLED TO INCLUDE COST-OF-LIVING INCREASES TO THOSE BENEFITS?

REVERSED.

KAHN and WEBSTER, JJ., concur. PADOVANO, J., concurs in part and dissents in part with written opinion.

PADOVANO, J., concurring in part and dissenting in part.

I join in the decision, but for the reasons expressed in my separate opinion in University of West Florida and Alexsis Risk Management v. Mixson, 752 So.2d 92 (Fla. 1st DCA 2000), I would not certify the issue to the supreme court.