Ralston Purina Co. v. Byers

• Decision Date: 18 October 1984
• Docket Number: No. AX-169,AX-169
• Citation: 457 So.2d 1138
• Court: Florida District Court of Appeals
• Parties: RALSTON PURINA COMPANY and Aetna Life & Casualty Company, Appellants, v. Alfred BYERS, Appellee.

Page 1138

457 So.2d 1138

RALSTON PURINA COMPANY and Aetna Life & Casualty Company, Appellants, v. Alfred BYERS, Appellee.

No. AX-169.

District Court of Appeal of Florida First District.

Oct. 18, 1984.

F. Bradley Hassell, Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellants.

Edward H. Hurt, Hurt & Parrish, Orlando, and Bill McCabe, Shepherd, McCabe & Cooley, Orlando, for appellee.

BOOTH, Judge.

The employer/carrier appeal the deputy commissioner's holding that Section 440.15(3)(b)4, Florida Statutes, as amended in 1983, can be retroactively applied to accidents occurring prior to the effective date of the amendment, and awarding wage-loss benefits. The amended statute, for the first time, allows persons 65 and over and eligible for social security to also obtain wage-loss benefits but provides for a setoff for social security benefits received.

The parties stipulated that the claimant sustained a compensable injury on December 3, 1981, that the claimant was 65 years of age as of July 1, 1983, and that the employer/carrier have paid temporary total disability benefits from January 10, 1983 to February 16, 1983, and wage-loss benefits from April, 1983 to July, 1983. The employer/carrier contended the claimant was not eligible for benefits because, inter alia, he had previously reached age 65. The deputy awarded the wage-loss benefits requested, holding that Section 440.15(3)(b)4, as amended effective June 30, 1983, applied to the claimant even though claimant's accident occurred prior to that statute's effective date. The deputy reasoned that the statute was primarily a clarification of what was intended by the 1980 version of the age/wage-loss provision, citing Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), and that, since the statutory change was procedural, it could be applied retroactively.

On the date of the claimant's compensable accident, Sections 440.15(3)(b)3 d and 4, Florida Statutes (1981), provided, in pertinent part, as follows: "3. The right to wage-loss benefits shall terminate: .... d. [w]hen the injured employee reaches age 65 and becomes eligible for benefits under 42 U.S.C. §§ 402 and 405;" and "4. [w]hen the injured employee reaches age 62, wage-loss benefits shall be reduced by the total amount of social security retirement benefits which the employee is receiving, not to exceed 50 percent of the employee's wage-loss benefits."

In 1983, the Legislature enacted Chapter 83-305, Section 5, effective June 30, 1983, which deleted Sections 440.15(3)(b)3 d and 440.15(3)(b)4 (quoted above) and replaced them with a new Subsection 4, which provided:

If an employee is entitled to both wage-loss benefits and social security retirement benefits under 42 U.S.C. ss. 402 and 405, such social security retirement benefits shall be primary and the wage-loss benefits shall be supplemental only. The sum of the two benefits shall not exceed the amount of wage-loss benefits which would otherwise be payable. For the purposes of termination of wage-loss benefits pursuant to sub-subparagraph 3.a., the term "payable" shall be construed to include payment of social security retirement benefits in lieu of wage-loss benefits.

We hold that the deputy commissioner erred in applying Section 440.15(3)(b)4, Florida Statutes (1983), retroactively, since the amendment is a substantive change in the law. Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), affirmed, 452 So.2d 932 (Fla.1984), relied upon by the deputy commissioner, is distinguishable because the addition to the statute in the Sasso case was in clarification of what was intended by the Legislature in the previous enactment, as stated by the court in Sasso, 431 So.2d at 217-218:

In 1980, the legislature amended the statute by providing that an injured worker's right to permanent disability wage-loss benefits terminate "[w]hen the injured employee reaches age 65 and becomes eligible for benefits under 42 U.S.C. §§ 402 and 405, ...." Chap. 80-236, § 5, Laws of Fla. (added language emphasized) The added language requires that an injured worker's wage-loss benefits may not be terminated unless he is both 65 or older and receiving old-age and survivors insurance benefits (O.A.S.I.), more commonly referred to as social security retirement benefits. "[T]he timing and circumstances of an enactment may indicate it was formal only and served as a legislative clarification...