Hillsborough County School Bd. v. Ward, 1D04-5042.

• Decision Date: 23 September 2005
• Docket Number: No. 1D04-5042.,1D04-5042.
• Citation: 913 So.2d 39
• Parties: HILLSBOROUGH COUNTY SCHOOL BOARD & Broadspire, Appellants, v. Sandra WARD, Appellee.
• Court: Florida Supreme Court

Page 39

913 So.2d 39

HILLSBOROUGH COUNTY SCHOOL BOARD & Broadspire, Appellants, v. Sandra WARD, Appellee.

No. 1D04-5042.

District Court of Appeal of Florida, First District.

September 23, 2005.

Rehearing Denied November 2, 2005.

Pamela A. Walton, Esq. of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Appellants.

Frederick J. Daniels, Esq., Winter Park; Bill McCabe, Esq., Longwood, for Appellee.

LEWIS, J.

Appellants, the Hillsborough County School Board and Broadspire (collectively "the E/C"), appeal an order of the judge of compensation claims ("JCC"), which granted the petition for benefits filed by appellee Sandra Ward ("claimant"), in which she requested the reinstatement of permanent total disability ("PTD") supplemental benefits. The E/C first argues that, pursuant to our opinion in Wilkins v. Broward County School Board, 754 So.2d 50 (Fla. 1st DCA 2000), claimant's entitlement to supplemental benefits automatically ceased when she turned age 62 because she became permanently and totally disabled prior to reaching age 62. The E/C also argues that, even if claimant's entitlement did not automatically cease at age 62, claimant is no longer entitled to supplemental benefits because she is eligible for social security disability benefits. We find no merit in either of these arguments and, therefore, affirm the JCC's order.

As a result of claimant's 1993 compensable injury, the E/C paid her PTD benefits and PTD supplemental benefits. However, when claimant turned 62 in January 2004, the E/C terminated her supplemental benefits because claimant had reached PTD status prior to age 62. During the merits hearing, claimant testified that she began receiving social security retirement benefits at age 62.

Following the hearing, the JCC entered the order on appeal, finding that, in order to terminate claimant's supplemental benefits, the E/C had the burden of establishing, pursuant to section 440.15(1)(e), Florida Statutes, that claimant would be eligible for both social security retirement benefits and social security disability benefits. Because the E/C failed to present any evidence that claimant was eligible for social security disability benefits, the JCC ordered that the E/C reinstate claimant's supplemental benefits. This appeal followed.

Section 440.15(1)(e)1., Florida Statutes (1993), provides, in pertinent part:

In case of permanent total disability resulting from injuries which occurred subsequent to June 30, 1955, and for which the liability of the employer for compensation has not been discharged under the provisions of s. 440.20(12), the injured employee shall receive additional weekly compensation benefits equal to 5 percent of his weekly compensation rate, as established pursuant to the law in effect on the date of his injury, multiplied by the number of calendar years since the date of injury.... Entitlement to these supplemental payments shall cease at age 62 if the employee is eligible for social security benefits under 42 U.S.C. ss. 402 and 423, whether or not the employee has applied for such benefits.¹

(Emphasis added). The federal statutes mentioned provide for, respectively, social security retirement benefits and social security disability benefits. There is no dispute in this case that claimant is eligible for social security retirement benefits.

With respect to social security disability benefits, 42 U.S.C. § 423(a)(1) (1991), provides that an individual will be entitled to such benefits if he or she:

(A) is insured for disability insurance benefits (as determined under subsection (c)(1) of this section),

(B) has not attained retirement age (as defined in section 416(l) of this title),

(C) has filed application for disability insurance benefits, and

(D) is under a disability (as defined in subsection (d) of this section).

42 U.S.C. § 423(d)(1)(A) (1991), defines "disability" in part to mean the:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]²

The E/C first argues that our Wilkins opinion supports the automatic cessation of PTD supplemental benefits to a claimant who reaches age 62 if he or she was rendered permanently and totally disabled prior to age 62. A review of our case law addressing section 440.15(1)(e)1. is necessary to address this issue.

In Burger King Corp. v. Moreno, 689 So.2d 288, 289 (Fla. 1st DCA 1997), we affirmed the JCC's ruling that the claimant, who was 69 years old at the time of her injury and who was receiving social security retirement benefits, was entitled to PTD supplemental benefits. We held that the unambiguous language of section 440.15(1)(e)1. "would require, prior to cessation of entitlement to supplemental benefits, that the employee has reached age 62 and is eligible for both retirement and disability benefits under the Social Security Act." Id. We noted that social security disability benefits are not payable to any individual who has attained age 65. Id. Thus, the claimant was not eligible for social security disability benefits at the time she became permanently and totally disabled and would never be eligible for such benefits. Id. We declined the E/C's invitation to construe the word "and" in section 440.15(1)(e)1. as "or" and found that the construction of the statute employed by the JCC met the legislative aim by eliminating supplemental benefits for certain claimants between the ages of 62 and 65. Id. We explained, "Legislative intent to eliminate supplemental benefits for all claimants receiving either social security disability or retirement benefits is not clear, and we choose not to rewrite the statute." Id. In affirming, we found that the "employer and carrier failed to show [the claimant's] entitlement to social security disability benefits by virtue of her work-related injury or any other cause." Id. Thus, there was no evidence in the record from which we could conclude that, but for the claimant's age, claimant would be "eligible" for social security disability benefits. Id. at 289-90.

Subsequently, in Scott v. Mohawk Canoes, 730 So.2d 731, 731 (Fla. 1st DCA 1999), we reversed the JCC's order finding that the E/C was entitled to cease payment of PTD supplemental benefits after the claimant turned 65. The claimant was injured when he was 61 and began receiving social security disability benefits when he was 62. Id. at 731. The E/C began paying the claimant PTD and PTD supplemental benefits when he was 64. Id. at 731-32. At age 65, the claimant's social security disability payments were converted to social security retirement benefits. Id. at 732. As a result, the E/C stopped paying PTD supplemental benefits. Id. In citing Moreno, we set forth that, once the claimant reached age 65, he was no longer entitled to receive social security disability benefits. Id. As such, we held that the E/C incorrectly ceased payment of PTD supplemental benefits. Id.; see also Dixon v. Pasadena Yacht & Country Club, 731 So.2d 141, 142 (Fla. 1st DCA 1999) (finding no error with the JCC's award of PTD supplemental benefits to the claimant after he reached 65 based on Scott).

The E/C is correct that both Moreno and Scott are distinguishable from this case in that, here, claimant became permanently and totally disabled prior to reaching age 62. We addressed a similar situation in Wilkins. There, we affirmed an order awarding attorney's fees and costs in which the JCC concluded that supplemental benefits were not due and owing. See 754 So.2d at 51. In doing so, we noted that the claimant was younger than 62 at the time of her accident and PTD designation. Id. In the order on appeal, the JCC accepted the E/C's argument and distinguished Moreno "`because of the age difference of the parties at the time of the award.'" Id. We held that, in cases where a claimant is injured and reaches PTD prior to 62, the claimant is not entitled to PTD supplemental benefits after age 65. Id. at 52. In doing so, we reasoned:

The Legislature could have legitimately assumed that in these cases a claimant would not continue to work after a traditional retirement age. Indeed, in these cases, the "shall cease" language of the statute means just that. In Moreno the language could never have been triggered. To the extent that statements in our opinion in Moreno may indicate otherwise, such statements constitute dicta. Under Moreno where a claimant reaches PTD after age 62, the claimant is entitled to supplemental benefits after age 65.

Id.

Thereafter, in Harrell v. Florida Construction Specialists, 834 So.2d 352, 358 (Fla. 1st DCA 2003), we rejected the claimants' argument that section 440.15(1)(e)1., Florida Statutes (1991), and section 440.15(1)(f)1., Florida Statutes (1995), were unconstitutional. Instead, we found that Wilkins controlled because both claimants were injured and reached PTD status prior to age 62. Id. As such, the claimants were not entitled to PTD supplemental benefits after age 65. Id.

Contrary to the E/C's argument, Wilkins does not stand for the proposition that PTD supplemental benefits automatically cease when a claimant reaches age 62 if the claimant was permanently and totally disabled before age 62. First, the E/C's interpretation of Wilkins ignores the latter part of section 440.15(1)(e)1., which provides that supplemental benefits shall cease at age 62 if a claimant is eligible for both social security retirement benefits and social security disability benefits. Moreover, the issue currently before us, whether an E/C may automatically terminate PTD supplemental benefits when a claimant who reached PTD status prior to age 62 turns 62, was not before us in Wilkins. What we held in Wilkins was that a claimant who is permanently and totally disabled prior to age 62 is not entitled to have his or her supplemental...