Giordano v. City of Miami, 87-297

• Decision Date: 27 May 1988
• Docket Number: No. 87-297,87-297
• Citation: 13 Fla. L. Weekly 1283,526 So.2d 737
• Parties: 13 Fla. L. Weekly 1283 Andrew GIORDANO, Appellant, v. CITY OF MIAMI, Appellee.
• Court: Florida District Court of Appeals

Page 737

526 So.2d 737

13 Fla. L. Weekly 1283

Andrew GIORDANO, Appellant, v. CITY OF MIAMI, Appellee.

No. 87-297.

District Court of Appeal of Florida,

First District.

May 27, 1988.

Mark L. Zientz of Williams & Zientz, Coral Gables, for appellant.

Lucia A. Dougherty, City Atty. and Martha D. Fornaris, Asst. City Atty., Miami, for appellee.

ZEHMER, Judge.

Claimant seeks review of an order of the deputy commissioner denying his claim for permanent total disability benefits (PTD). He contends the deputy erred in failing to award "double" compensation benefits from the city along with penalties, interest, costs, and attorney's fees. We affirm.

Claimant sustained a compensable accident on August 24, 1973, and was accepted by the employer, the City of Miami, as permanently and totally disabled on December 2, 1973. On June 20, 1985, the deputy commissioner ordered that claimant be awarded PTD benefits at the rate of $80 per week, commencing December 3, 1973, to date and continuing for so long as claimant remained disabled. In accordance with a provision of the city code relating to pension offsets, the City reduced claimant's monthly pension benefit by the amount of the corresponding workers' compensation payment. The deputy found this offset impermissible and ordered the city to pay claimant $912.75 in pension benefits, plus $346.67 per month as PTD workers' compensation benefits. This order was affirmed without opinion. City of Miami v. Giordano, 488 So.2d 538 (Fla. 1st DCA 1986).

On September 26, 1986, claimant filed this claim for additional benefits seeking permanent total disability benefits from May 1, 1986, to date plus penalties, interests, costs, and attorney's fees. At the hearing held on March 19, 1987, it was agreed that claimant receives the $80 per week from the City but that the City deducts from his pension a sum equivalent to his workers' compensation benefits. Claimant argued that he was entitled to additional benefits because of this offset. The City argued that they were paying the $80 per week as ordered and that the pension board was a separate entity over which it had no control. Counsel for the City also pointed out:

You know, it needs to be in circuit court and it is. They're trying to certify a class in the Viejo versus City of Miami case, which Mr. Schwedock is handling. They're trying to determine whether in fact the pension board can take an offset based on the City of Miami paying compensation to an employee who has been hurt on the job. I cannot tell the pension board to do it. I'm paying $80.00 a week to Mr. Giordano. What more can we pay?

(R. 11-12). In his final order dated May 8, 1987, the deputy commissioner found that the claim for benefits had been previously adjudicated, that claimant had been continuously paid his PTD benefits by the City in compliance with the order of June 20, 1985, and denied the claim for payment of penalties, interests, costs, and attorney's fees to claimant's counsel.

Initially, we note that appellee has filed a motion to dismiss this appeal on the grounds that the appeal is frivolous in nature and wholly without merit. Appellee argues that the order appealed from is not a denial of a claim by the deputy but rather a finding by the deputy that the City had been in complete compliance with the order of June 20, 1985, and thus, no practical result can ensue from reviewing this issue. Because we find that claimant is making a good faith effort to resolve the...