Trilla v. Braman Cadillac
| Decision Date | 17 June 1988 |
| Docket Number | No. 87-455,87-455 |
| Citation | 13 Fla. L. Weekly 1444,527 So.2d 873 |
| Parties | 13 Fla. L. Weekly 1444 Orlando J. TRILLA, Appellant, v. BRAMAN CADILLAC and Adjustco, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Albert E. Harum, Jr., Miami, for appellant.
Michael Fichtel of Adams, Kelley, Kronenberg & Kelley, Miami, for appellees.
The claimant in this workers' compensation case appeals an order approving a reduction of benefits under section 440.15(9), Florida Statutes (1982), based upon 80 percent of his average weekly wage. We reverse.
The statute provides an offset for Social Security benefits payable under 42 U.S.C. sections 402 and 423, so that the total benefits do not exceed 80 percent of the claimant's average weekly wage (AWW). The statute limits the offset to the extent such benefits would have otherwise been reduced under 42 U.S.C. section 424a, the federal offset calculated on the basis of 80 percent of the employee's average current earnings (ACE).
The claimant challenged the offset being taken by the employer/servicing agent, which was based on 80 percent of the AWW. The parties stipulated to an AWW of $373.76 and a compensation rate of $249.60 per week. An examiner with the Workers' Compensation Division testified that the claimant's ACE indicated he could receive $439.62 per week in combined benefits before an offset would be available and that his total weekly benefits amounted to $420.31, so that no offset was available.
The deputy commissioner essentially dismissed this testimony and found that the employer/servicing agent had properly calculated the Social Security offset as the difference between 80 percent of the claimant's AWW and the total amount of Social Security and workers' compensation benefits. He acknowledged that the statute limits the offset to that which otherwise would have been taken by the federal government and provides for reduction or increase of the offset if the Social Security laws are amended to provide for reduction or increase of the percentage of average current earnings, but he found that the record contained no evidence regarding the amount of the federal offset or showing an amendment to the Social Security law.
Under section 440.15(9)(a), the employer/servicing agent's offset (based upon the amount by which the sum of the total benefits exceeds 80 percent of the AWW) could not be greater than the offset which the federal government would otherwise take (based upon the amount by which the sum of the total benefits exceeds 80 percent of the ACE). Sufficient information was presented to the deputy commissioner from which the appropriateness of the claimed offset could have been determined.
The Industrial Relations Commission cases upon which the claimant relies state that the 1975 amendment adding the federal offset limitation precludes an offset which would reduce a claimant's combined benefits to a greater extent than they would have otherwise...
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