Good Housekeeping Gas Co. v. Kitler, BK-141

• Decision Date: 09 July 1986
• Docket Number: No. BK-141,BK-141
• Citation: 11 Fla. L. Weekly 1496,492 So.2d 700
• Parties: 11 Fla. L. Weekly 1496 GOOD HOUSEKEEPING GAS COMPANY and Crawford & Company, Appellants, v. Freddie D. KITLER, Appellee.
• Court: Florida District Court of Appeals

Page 700

492 So.2d 700

11 Fla. L. Weekly 1496

GOOD HOUSEKEEPING GAS COMPANY and Crawford & Company, Appellants, v. Freddie D. KITLER, Appellee.

No. BK-141.

District Court of Appeal of Florida,

First District.

July 9, 1986.

Rehearing Denied Sept. 5, 1986.

M. Wayne Myers, Coker, Myers & Schickel, P.A., Jacksonville, for appellants.

John J. Sulik, Dawson, Galant, Sulik & Ellis, Jacksonville, for appellee.

WIGGINTON, Judge.

The employer/carrier (E/C) appeal the deputy commissioner's order in which the deputy held that there is no statutory authority for offsetting social security disability benefits from wage-loss benefits. We affirm.

The E/C have been paying wage-loss benefits to claimant since April 4, 1985, the date on which claimant reached maximum medical improvement. In addition, claimant had been receiving social security disability benefits, so, as of May 1, 1985, the E/C took advantage of the social security offset provision in section 440.15(9)(a), Florida Statutes (1985), thereby reducing claimant's monthly wage-loss benefits.

At the claim hearing, claimant contested the E/C's taking the offset. In her ensuing order, the deputy held, inter alia, that, "taking into consideration Sections 440.15(9)(a) [440.15(10)(a) ] and 440.15(3)(b)(4)," there is no authority for offsetting social security disability benefits from wage-loss benefits. Accordingly, the E/C were ordered to pay claimant the amount of the offset taken.

Section 440.15(9)(a) provides:

(a) Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. s. 423 shall be reduced to an amount whereby the sum of such compensation benefits payable under this chapter and such total benefits otherwise payable for such period to the employee and his dependents, had such employee not been entitled to benefits under this chapter, under 42 U.S.C. ss. 423 and 402, does not exceed 80 percent of the employee's average weekly wage. However, this provision shall not operate to reduce an injured worker's benefits under this chapter to a greater extent than they would have otherwise been reduced under 42 U.S.C. s. 424(a). This reduction of compensation benefits is not applicable to any compensation benefits payable for any week subsequent to the week in which the injured worker reaches the age of 62 years.

[Emphasis supplied.] Thus, by the statute's terms, the offset is keyed to weekly compensation benefits. As claimant argues, wage-loss benefits are paid monthly, based on an average monthly wage. See section 440.15(3)(b)1., Fla.Stat. (1981). Although the E/C argue that wage loss in truth contemplates a claimant's weekly earnings and is paid monthly for convenience only, and is in fact the "periodic benefits for a total or partial disability" as contemplated in the Federal offset provision, 42 U.S.C. § 424a, ¹ we decline to interpret the term "weekly" in section 440.15(9)(a) as meaning anything other than weekly. ² To hold otherwise might contravene legislative intent, the ramifications of which, we note, have not been thoroughly discussed by the parties. Instead, our decision to affirm the deputy's order maintains the integrity of the statutory language until the legislature desires to elucidate its intent through statutory amendment. ³

AFFIRMED.

SMITH and JOANOS, JJ., concur.

1 The Federal offset provision, 42 U.S.C. § 424a provides in relevant part:

(a) If for any month prior to the month in which an individual attains the age of 62--

(1) such individual is entitled to benefits under Section 423 [42 U.S.C. Section 423], and

(2) such individual is entitled for such month to periodic benefits on account of such individual's total or partial disability (whether or not permanent) under--

(A) a workmen's compensation law or plan of the United States or a State, or

(B) any other law or plan of the United States, a State, a political subdivision (as that term is used in section 418(b)(2) of this title), or an instrumentality of two or more States (as that term is used in section 418(k) of this title),

other than benefits payable under Title 38, benefits payable under a program of assistance which is based on need, benefits based on service all, or substantially all, of which was included under an agreement entered into by a State and the Secretary under section 418 of this title, and benefits under a law or plan of the United States based on service all or part of which is employment as defined in section 410 of this title,

the total of his benefits under section 423 of this title for such month and of any benefits under section 402 of this title for such month based on his wages and self-employment income shall be reduced (but not below zero) by...