Grice v. Escambia County Sheriff's Dept., No. 94-1950

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SMITH
• Citation: 658 So.2d 1208
• Parties: 20 Fla. L. Weekly D1863 Thomas GRICE, Appellant, v. ESCAMBIA COUNTY SHERIFF'S DEPARTMENT & Escambia County Risk Management, Appellees.
• Docket Number: No. 94-1950
• Decision Date: 15 August 1995

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658 So.2d 1208 20 Fla. L. Weekly D1863 Thomas GRICE, Appellant,
v.
ESCAMBIA COUNTY SHERIFF'S DEPARTMENT & Escambia County Risk
Management, Appellees. No. 94-1950. District Court of Appeal of Florida,
First District. Aug. 15, 1995.

James F. McKenzie of McKenzie & Soloway, Pensacola, for appellant.

Michael J. Valen of McConnaughhay, Roland, Maida & Cherr, Pensacola, for appellees.

David A. McCranie, Jacksonville, for amicus curiae, Florida Dept. of Ins.

SMITH, Senior Judge.

The claimant, Thomas Grice, appeals a workers' compensation order in which the

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judge of compensation claims (JCC) ruled that the employer, Escambia County Sheriff's Department, appellee, was entitled to offset the claimant's workers' compensation benefits by the amount the claimant's combined social security, workers' compensation and state disability retirement benefits exceeded the claimant's average weekly wage. We reverse.

The claimant, a disabled deputy sheriff, was injured on January 28, 1985 while employed by the Escambia County Sheriff's Department, a self-insured and self-administered employer for workers' compensation purposes. The claimant was accepted as permanently totally disabled thereafter and began receiving permanent total disability (PTD) benefits. In addition, the claimant received social security disability benefits, and state disability retirement benefits under the Florida Retirement System. Claimant's average weekly wage was determined to be $583.88, yielding a compensation rate of $392 per week. His social security benefit payment amounted to $163.85, and he received state disability retirement benefits in the amount of $208.75 per week.

On June 14, 1993, the county notified the claimant that it was offsetting his PTD benefits based upon the amount that his combined workers' compensation, state pension, and social security benefits exceeded his average weekly wage. The claimant filed a claim disputing the county's right to take the offset and sought repayment of the benefits withheld plus his fees, costs, interest and penalties.

After a hearing, the JCC issued an order denying the claim and allowing the county to "continue workers' compensation offsets to the extent that both social security benefits and pension benefits combined to exceed claimant's pre-injury average weekly wage." In his order the JCC noted that under established case law it was clear that the combination of claimant's workers' compensation benefits and his employer-funded pension benefits could not exceed claimant's average weekly wage; and that it was equally clear that a statutory offset with respect to social security benefits was provided by Section 440.15(9)(a), Florida Statutes. The JCC acknowledged, however, that there was no statutory or case law for guidance on the issue of whether the employer could combine all three benefits so as to compute an offset based upon the claimant's average weekly wage. Finally concluding that such combining or "stacking" was permissible, the JCC's order stated:

There are no cases on point dealing with a three-way combination of benefits. In this particular case, if either of the two benefits, i.e., social security or pension, were involved and those benefits were more generous, the employer would clearly be allowed to take an offset against compensation based on one or the other. For this reason, it appears that the employer should be allowed to "stack" both benefits to take an offset, provided it does not exceed the claimant's pre-injury AWW. Had the pension benefits been substantially funded by the employee, one is compelled to conclude there would be a different result.

We begin our discussion by observing that Section 440.21, Florida Statutes, precludes any offset for sick leave, group insurance disability, pension or other like benefits, whether paid or furnished in whole or in part by the employer, or contributed to by the employee, so long as the combination of such benefits and the workers' compensation benefits payable does not exceed the employee's average weekly wage. Barragan v. City of Miami, 545 So.2d 252 (Fla.1989) (city pension); Brown v. S.S. Kresge Co., Inc., 305 So.2d 191 (Fla.1974) (sick leave insurance paid by employer); Domutz v. Southern Bell Telephone & Telegraph Co., 339 So.2d 636 (Fla.1976) (pension); City of Miami v. Smith, 602 So.2d 542 (Fla. 1st DCA 1991) (city pension); K-Mart v. Young, 526 So.2d 965 (Fla. 1st DCA 1988) (disability insurance furnished by employer).

All parties substantially agree to the foregoing. They disagree, however, on the employer's

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right to an offset when the combination of benefits...