Hillsborough County School Bd. v. Fliter, 88-1684

• Citation: 539 So.2d 1145,14 Fla. L. Weekly 470
• Decision Date: 17 February 1989
• Docket Number: No. 88-1684,88-1684
• Parties: 52 Ed. Law Rep. 860, 14 Fla. L. Weekly 470 HILLSBOROUGH COUNTY SCHOOL BOARD and Poe Risk Management Services, Appellants, v. Ora Mae FLITER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1145

539 So.2d 1145

52 Ed. Law Rep. 860, 14 Fla. L. Weekly 470

HILLSBOROUGH COUNTY SCHOOL BOARD and Poe Risk Management Services, Appellants, v. Ora Mae FLITER, Appellee.

No. 88-1684.

District Court of Appeal of Florida,

First District.

Feb. 17, 1989.

Robert P. Byelick of Lyle & Skipper, Tampa, for appellants.

Dennis A. Palso of Frank Hamilton & Associates, Tampa, for appellee.

MINER, Judge.

In this workers' compensation case, the employer/carrier (e/c) appeal that portion of the order by the deputy commissioner (dc) which includes in computing claimant's average weekly wage (AWW) the e/c's past weekly contribution to her retirement program even though she is now retired and drawing retirement benefits. In her cross appeal, the claimant alleges that the dc erred by invoking the deemed earnings provision of section 440.15(3)(b)(2), Florida Statutes (1987), upon his finding that she voluntarily limited her income by opting for voluntary retirement and limiting her work search. We affirm the order of the dc as to each issue raised.

In a compensable accident on September 25, 1986, claimant, a 62 year old bus driver, injured her ankle and knee stepping off her school bus. Within three months after the accident her knee required arthroscopic surgery. On January 9, 1987, she returned to work but recurring knee problems prompted her to submit her resignation and request retirement benefits from the Florida Retirement System (FRS). Although her resignation was to be effective June 6, 1987, on May 14 she stopped working and thereafter did not return. She submitted requests for wage loss benefits which were controverted and on June 9, 1988, a hearing was held to resolve a dispute between the claimant and the e/c as to those benefits for the period August 12, 1987 to January 31, 1988. On June 10, 1988, the dc entered his order including the e/c's retirement contribution of $36.13 per week in claimant's AWW and finding that claimant had voluntarily retired and limited her work search. He also awarded wage loss benefits for the period in question based upon her deemed earnings of $160.00 per week. This appeal and cross appeal followed.

The parties agree and our research reveals that the issue raised on appeal is apparently one of first impression. The e/c argued that it would be inequitable and tantamount to double recovery if the $36.13 retirement contribution is added to claimant's AWW when she is already receiving over $540.00 per month in retirement benefits. They cite section 440.14(3), Florida Statutes, for the proposition that fringe benefits, including vested pension and retirement benefits, should not be included in AWW so long as the benefits continue to be provided. They maintain that the employer is continuing to provide the benefit through claimant's receipt of payments through the FRS.

Claimant argues that the above cited statutory provision requires that an employer continue providing identical benefits or, failing this, have the benefits included in her AWW. She asserts that retirement benefits paid by the FRS are not identical to the e/c's monthly contribution and thus she is but harvesting the fruits of a fringe benefit which is not the equivalent of the e/c's continuing to provide the benefit. She also points out that when she retired, the e/c stopped contributing to her retirement account.

It is well settled by case law and subsequent amendment of the statute that vested pension and retirement benefits are within the statutory definition of "wages." § 440.02(21), Fla.Stat., (1987); Buckhalter v. University of Florida, 411 So.2d 1327 (Fla. 1st DCA), pet. rev. denied, 418 So.2d 1278 (Fla.1982). These benefits are also within the scope of section 440.14(3) in that they can be excluded from AWW to the extent that the e/c continues to provide them. Smith v. Sunland Training Center, 455 So.2d 1088, 1089 (Fla. 1st DCA 1984). Thus, the question at issue in the instant appeal is whether the e/c are in fact continuing to provide retirement benefits when claimant begins collecting from the FRS.

Claimant maintains that Smith v. Sunland Training Center, supra, supports her position even though this court approved excluding the e/c's retirement contribution from claimant's AWW because the e/c continued to provide retirement benefits to a claimant who was receiving retirement credits under Rule 22B-2.12, Florida Administrative Code during the time that claimant was on temporary total disability status. The cited rule gives full retirement credit to FRS members who return to active employment following a period during which they received workers' compensation benefits due to a compensable injury related to their FRS...