Orange County Fire Rescue v. Antonelli, 1D00-3411.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: WEBSTER, J.
• Citation: 794 So.2d 758
• Parties: ORANGE COUNTY FIRE RESCUE and Johns Eastern Company, Inc., Appellants/Cross-Appellees, v. Anthony D. ANTONELLI, Appellee/Cross-Appellant.
• Docket Number: No. 1D00-3411.,1D00-3411.
• Decision Date: 26 September 2001

794 So.2d 758

ORANGE COUNTY FIRE RESCUE and Johns Eastern Company, Inc., Appellants/Cross-Appellees,
v.
Anthony D. ANTONELLI, Appellee/Cross-Appellant

No. 1D00-3411.

District Court of Appeal of Florida, First District.

September 26, 2001.

794 So.2d 759

Karen J. Cullen and Danni Lynn Germano of Broussard & Cullen, P.A., Orlando, for Appellants/Cross-Appellees

Geoffrey Bichler, Winter Park; Bill McCabe, Longwood, for Appellee/Cross-Appellant.

EN BANC

WEBSTER, J.

In this workers' compensation appeal, the employer and servicing agent challenge the exclusion of permanent total disability supplemental benefits from the initial offset calculation mandated by Escambia County Sheriff's Department v. Grice, 692 So.2d 896 (Fla.1997), which holds that workers may not receive benefits from their employer and other collateral sources in excess of their average weekly wage. On cross-appeal, the claimant argues that the judge of compensation claims erred in allowing the employer and servicing agent to take the offset retroactively to the date of the Grice decision. Alternatively, the claimant asserts that even if the employer and servicing agent were allowed to take a retroactive offset, the amount of the offset was miscalculated. We affirm on all issues. However, our affirmance on the first issue requires us to recede en banc from prior decisions of this court.

I.

After sustaining a compensable back injury, the claimant was accepted as permanently and totally disabled on January 8, 1997. The parties stipulated that the appropriate date of accident for calculating permanent total disability benefits was January 29, 1996. Based on this date of accident, the claimant's average weekly wage was $913.63, resulting in a compensation rate of $465.00 per week. The claimant also initially received $14.00 in supplemental benefits.

794 So.2d 760

Effective April 1, 1997, the claimant became entitled to state disability retirement benefits in the initial amount of $340.75 per week. On November 23, 1998, the claimant was notified that he was entitled to social security disability benefits retroactively to April 1, 1997. The claimant's initial benefit amount was $273.81 per week

On October 15, 1999, the employer and servicing agent asserted the right to take a Grice offset retroactively to May 1, 1997, the date of the Grice decision. The employer and servicing agent calculated the offset as follows:

Compensation rate $ 465.00 Social security disability $ 273.81 State disability retirement $ 340.75 Supplemental benefits $ 14.00 _________ Total benefits $1,093.56 Average weekly wage - $ 913.63 _________ Offset $ 179.93

The claimant challenged both the inclusion of supplemental benefits in the offset calculation and the retroactive assertion of the offset.

The judge of compensation claims held that the employer and servicing agent were entitled to assert the offset retroactively to May 1, 1997, and that the offset calculation was correct except for the inclusion of the initial amount of supplemental benefits. This appeal and cross-appeal follow.

II.

On appeal, the employer and servicing agent argue that the judge of compensation claims erred in ruling that the initial amount of supplemental benefits should not be included in the Grice offset calculation. At least two decisions of this court unequivocally support their position. HRS Dist. II v. Pickard, 778 So.2d 299 (Fla. 1st DCA 1999), approved on...