HRS DIST. II v. Pickard, No. 98-1097.

• Court: Florida District Court of Appeals
• Writing for the Court: ERVIN, J.
• Citation: 778 So.2d 299
• Parties: HRS DISTRICT II and Alexsis Claims Management, Cross-Appellees, v. Ann L. PICKARD, Appellee/Cross-Appellant.
• Decision Date: 19 July 1999
• Docket Number: No. 98-1097.

778 So.2d 299

HRS DISTRICT II and Alexsis Claims Management, Cross-Appellees,
v.
Ann L. PICKARD, Appellee/Cross-Appellant

No. 98-1097.

District Court of Appeal of Florida, First District.

July 19, 1999.

Opinion Denying Rehearing October 15, 1999.

David A. McCranie of McCranie & Lower, P. A., Jacksonville, for Appellants/Cross-Appellees.

R. Jeremy Solomon of Solomon & Proctor, Tallahassee, for Appellee/Cross-Appellant.

Barbara E. Schnepper, P.A., Miami, Amicus Curiae, Florida Workers' Advocates.

Emily Moore, Tallahassee, Amicus Curiae, Florida Division of Retirement.

ERVIN, J.

This is an appeal challenging the application of the 100 percent average weekly wage (AWW) cap and resulting offset arising under section 440.20(15), Florida Statutes (Supp.1986), and Escambia County Sheriffs Department v. Grice, 692 So.2d 896 (Fla.1997). The employer and its insurance carrier, HRS District II and Alexsis Risk Management (E/C), argue on appeal that the judge of compensation claims (JCC) erred by excluding the claimant's permanent total disability (PTD) supplemental benefits and cost-of-living adjustments from the 100 percent AWW cap. We agree with the E/C to the limited extent that the JCC failed to include supplemental benefits in the initial calculation, as provided in the formula set forth in Hunt v. Stratton, 677 So.2d 64 (Fla. 1st

778 So.2d 300

DCA 1996), but otherwise affirm the JCC's ruling. Claimant, Ann L. Pickard, raises three issues on cross-appeal. We affirm the first two without further comment, but reverse and remand as to the third issue regarding the retroactive application of the 100 percent AWW cap and offset applied

Turning first to the E/C's issue on appeal, the JCC found, using the figures in effect in 1989, that when claimant became entitled to PTD benefits, her weekly social security disability benefit was $128.95, that her weekly state disability retirement benefit was $123.37, and that her AWW was $316.47. In determining the 100 percent AWW cap and resultant offset available to the E/C under section 440.20(15) and Grice, the JCC subtracted the total sum of claimant's weekly social security disability and state disability retirement benefits ($252.32) from her $316.47 AWW, which yielded a difference of $64.15. The JCC then directed the E/C to pay the claimant the sum of $64.15 per week for PTD benefits, plus interest and penalties, from August 1, 1989, when claimant first became entitled to same, through September 25, 1996, when the E/C commenced paying PTD benefits.

The correct formula for determining an initial social security disability offset is set forth in Hunt v. Stratton, 677 So.2d 64, 67 (Fla. 1st DCA 1996). When calculating the offset, a claimant's initial compensation rate and PTD supplemental benefits should be considered. Because the JCC's offset calculation fails to include the amount of PTD supplemental benefits to which claimant was first entitled in 1989 under section 440.15(1)(e)1, Florida Statutes (Supp.1986), we reverse the order only to such extent and remand with directions to recalculate the offset by including the 1989 supplemental benefit in the calculation.

We reject, however, the E/C's argument that the offset should be recalculated thereafter on an annual basis. This court has repeatedly held that offsets should not be recalculated based on annual increases in PTD supplemental benefits and cost-of-living adjustments. See Acker v. City of Clearwater, 755 So.2d 651 (Fla. 1st DCA 1998), review granted, 727 So.2d 903 (Fla. Feb.8, 1999); Hahn v. City of Clearwater, 755 So.2d 137 (Fla. 1st DCA 1998), review granted, 727 So.2d 903 (Fla. Feb.8, 1999); Rowe v. City of Clearwater, 755 So.2d 137 (Fla. 1st DCA 1998), review granted, 727 So.2d 903 (Fla....