N. Hannoush Jewelers, Inc. v. Bly
| Decision Date | 30 June 2021 |
| Docket Number | No. 1D20-2439,1D20-2439 |
| Citation | 322 So.3d 702 (Mem) |
| Court | Florida District Court of Appeals |
| Parties | N. HANNOUSH JEWELERS, INC. and Massachusetts Bay Ins. c/o Hanover INS. Group, Appellants/Cross-Appellees, v. Patrick BLY, Appellee/Cross-Appellant. |
Scott A. Beatty and David H. Roos of Henderson Franklin Starnes & Holt, P.A., Naples, for Appellants/Cross-Appellees.
Michael J. Winer of Winer Law Group, P.A., Tampa, and Brian O. Sutter and Bryan R. Greenberg of All Injuries Law Firm, P.A., Port Charlotte, for Appellee/Cross-Appellant.
In this workers' compensation appeal, both parties challenge the order of the Judge of Compensation Claims (JCC) in which he granted Claimant's request for a one-time change of physician of his choice pursuant to section 440.13(2)(f), Florida Statutes, and awarded temporary partial disability (TPD) benefits "subject to the payment of unemployment benefits," together with associated attorney's fees and costs. We affirm the order in its entirety and write only to address the effect of Claimant's receipt of unemployment compensation benefits on the amount of the TPD award.
When Claimant filed a petition for benefits (PFB) seeking TPD benefits from the date of accident (October 11, 2019) and continuing, the E/C filed a response denying the request but also asked Claimant to fill out "Employee Earnings Report" (DWC-19) forms in order to report any earnings he was receiving during the periods for which he was claiming TPD benefits. Claimant reported on these forms that he began receiving unemployment compensation benefits on November 2, 2019.
The E/C then asserted, not only that no TPD benefits were due, but alternatively that Claimant's unemployment compensation benefits "ha[d] to be offset," asking the JCC "that it be credited" to them to result in a smaller amount of liability. Claimant, in turn, asserted that any offset argument is an affirmative defense which must be specifically pled in accordance with procedural rules, and that by not pleading the defense in the pretrial stipulation the E/C had waived it. See Fla. Admin. Code R. 60Q-6.113(2)(h).
In the final order, the JCC awarded TPD benefits from October 29, 2019, to November 8, 2019, less the amount of unemployment compensation benefits Claimant had received during that period, reasoning that unemployment compensation benefits are primary under section 440.15(10)(b),* Florida Statutes (2019):
If an employee is entitled to temporary partial benefits pursuant to subsection (4) and reemployment assistance or unemployment compensation benefits, such reemployment assistance or unemployment compensation benefits shall be primary and the temporary partial benefits shall be supplemental only, the sum of the two benefits not to exceed the amount of temporary partial benefits which would otherwise be payable.
When Claimant moved for rehearing, he reiterated his position that the E/C had failed to preserve its argument on the effect of the unemployment compensation benefit payments on Claimant's entitlement to TPD benefits. The E/C countered that they had preserved the issue by including the sentence "Claimant has subsequent employment and earnings" in their defenses on the pretrial stipulation. The JCC found the argument preserved but expressly ruled that the effect of Claimant's receipt of unemployment compensation benefits on TPD benefits "is not an offset."
On cross-appeal, Claimant is challenging, not the period of time for the award, but the amount; he argues again that any "offset" of unemployment compensation benefits is improper because the E/C did not assert entitlement to an offset for the unemployment compensation benefit payments as an affirmative defense in the pretrial stipulation. We disagree with the premise that a Claimant's receipt of unemployment compensation benefits results in an offset, and therefore we disagree that the E/C's argument below was an affirmative defense necessitating additional pleading requirements.
Although this Court has held that an E/C must plead entitlement to an offset for certain benefits payments as an affirmative defense, see Medina v. Miami Dade Cnty. , 300 So. 3d 255 (Fla. 1st DCA 2020) (), we agree with the JCC that a claimant's receipt of unemployment compensation benefits does not result in an offset. An offset is a reduction in an amount of worker's compensation benefits the E/C must pay, a credit against the E/C's liability for such; for example, workers'...
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