Hunt v. Stratton, 93-1774

• Court: Court of Appeal of Florida (US)
• Citation: 677 So.2d 64
• Docket Number: No. 93-1774,93-1774
• Parties: 21 Fla. L. Weekly D1655 Althan W. HUNT, Appellant, v. D.M. STRATTON, Jr., and Pacific Marine c/o FIGA, Appellees.
• Decision Date: 15 July 1996

Page 64

677 So.2d 64 21 Fla. L. Weekly D1655 Althan W. HUNT, Appellant,
v.
D.M. STRATTON, Jr., and Pacific Marine c/o FIGA, Appellees. No. 93-1774. District Court of Appeal of Florida,
First District. July 15, 1996.

Page 65

William Dekle Day, Jacksonville, for Appellant.

Douglass E. Myers, Jr., of Milne, Rizk, Myers & Buckingham, P.A., Jacksonville, for Appellees.

BARFIELD, Chief Judge.

The claimant seeks review of a workers' compensation order determining the amount the employer/carrier are entitled to take as an offset of the permanent total disability (PTD) benefits paid him based upon the federal social security disability benefits he is receiving. We reverse.

The workers' compensation disability benefits offset statute, section 440.15(9)(a), Florida Statutes (1991), provides in relevant part:

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 such benefits would have otherwise been reduced under 42 U.S.C. s. 424(a).

Because the workers' compensation offset cannot be greater than the offset which the federal government would otherwise have taken, the federal social security benefits offset must be computed before the state offset may be determined. See Trilla v. Braman Cadillac, 527 So.2d 873 (Fla. 1st DCA 1988), and cases cited therein. The federal social security benefits offset statute, 42 U.S.C. section 424(a), provides in relevant part:

If for any month prior to the month in which an individual attains the age of 65--

(1) such individual is entitled to benefits under section 223 [42 USCS § 423], and

(2) such individual is entitled for such month to--

(A) periodic benefits on account of his or her total or partial disability (whether or not permanent) under a workmen's compensation law or plan of the United States or a State ...

the total of his benefits under section 223 [42 USCS § 423] and of any benefits under section 202 [42 USCS § 402] for such month based on his wages and self-employment income shall be reduced (but not below zero) by the amount by which the sum of--

(3) such total of benefits under sections 223 and 202 [42 USCS §§ 423, 402] for such month, and

(4) such periodic benefits payable (and actually paid) for such month to such individual under such laws or plans,

exceeds the higher of--

(5) 80 per centum of his "average current earnings," or

(6) the total of such individual's disability insurance benefits under section 223 [42 USCS § 423] for such months and of any monthly insurance benefits under section 202 [42 USCS § 402] for such month based on his wages and self-employment

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income, prior to reduction under this section.

In no case shall the reduction in the total of such benefits under sections 223 and 202 [42 USCS §§ 423, 402] for a month (in a continuous period of months) reduce such total below the sum of--

(7) the total of the benefits under sections 223 and 202 [42 USCS §§ 423, 402], after reduction under this section, with respect to all persons entitled to benefits on the basis of such individual's wages and self-employment income for such month which were determined for...