Smith v. Sunland Training Center, AU-71

• Decision Date: 13 September 1984
• Docket Number: No. AU-71,AU-71
• Parties: Dell SMITH, Appellant, v. SUNLAND TRAINING CENTER and Division of Risk Management, Appellees.
• Court: Florida District Court of Appeals

Page 1088

455 So.2d 1088

Dell SMITH, Appellant, v. SUNLAND TRAINING CENTER and Division of Risk Management, Appellees.

No. AU-71.

District Court of Appeal of Florida,

First District.

Sept. 13, 1984.

Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellant.

James G. Clayton of Clayton, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellees.

JOANOS, Judge.

Having considered the appellant claimant's motion for clarification or rehearing, we grant the motion in part and withdraw the decision and opinion filed March 13, 1984, substituting the following decision and opinion in lieu thereof.

The primary issue in this workers' compensation appeal is whether the deputy commissioner erred in failing to include employer contributions to claimant's retirement program in her average weekly wage where the retirement benefits were vested. Resolution of the matter involves determination of a question of law as to whether section 440.14(3) (effective May, 1982) applies to retirement benefits and, if so, whether under the circumstances of this case the deputy correctly determined that employer continues to provide these benefits.

The 62 year old claimant was injured when she slipped and fell at work and as of the entry of the order appealed she was still temporarily totally disabled. She had been working for employer for more than 15 years and it is undisputed that her retirement benefits had vested. After the work related accident, employer made no actual contributions to claimant's retirement account. The deputy determined that section 440.14(3) applies to retirement benefits, and that because claimant continues to be eligible to receive retirement credits for the full period of time during which workers' compensation payments are received pursuant to Fla.Admin.Code Rule 22B2.12, ¹ she has lost no benefits as a result of her temporary total disability.

Claimant argues, based on the difference in language used in sections 440.02(12), Fla.Stat. (1981) (defining wages) and 440.14(3), that retirement benefits are not intended to be encompassed in section 440.14(3). In addition, she contends her continuing eligibility for retirement credit under Rule 22B2.12, should she return to work, does not amount to continued provision of the benefit by the employer.

Wages are defined in section 440.02(12) to include "the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer ...." For purposes of determining average weekly wage, wages have been construed to include vested pension or retirement benefits, see Buckhalter v. University of Florida, 411 So.2d 1327 (Fla. 1st DCA 1982), and Reese v. Sewell Hardware Co., 407 So.2d 965 (Fla. 1st DCA 1981). See also City of Tampa v. Bartley, 413 So.2d 1280 (Fla. 1st DCA 1982); Sunland Training Center v. Irving, 384 So.2d 745 (Fla. 1st DCA 1980); Department of Health and Rehabilitative Services v. Ryan, 381 So.2d 269 (Fla. 1st DCA 1980); and Sunland Training Center v. Thomas, IRC 2-3917 (1979). None of these cases considered the applicability or effect of section 440.14(3), however.

Section 440.14(3) provides:

If, during the period of disability, the employer continues to provide consideration, including board, rent, housing, or lodging, the value of such consideration shall be deducted when calculating the average weekly wage of the employee so long as these benefits continue to be provided. (e.s.)

The underscored language is similar to the language in section 440.02(12), which has been construed to include vested retirement and pension benefits, thus lending support to the argument for inclusion of vested retirement or pension benefits within the scope of consideration under section 440.14(3). In addition, the enumeration of benefits which constitute consideration in section 440.14(3) is not exhaustive as indicated by use of the term "including." We conclude that contributions to vested retirement or pension programs are to be covered by section 440.14(3...