Whitman v. Hillsborough County School Bd., PP-415

• Decision Date: 15 August 1980
• Docket Number: No. PP-415,PP-415
• Citation: 386 So.2d 877
• Parties: Leroy WHITMAN, Appellant, v. HILLSBOROUGH COUNTY SCHOOL BOARD and Insurance Company of North America, Appellees.
• Court: Florida District Court of Appeals

Page 877

386 So.2d 877

Leroy WHITMAN, Appellant, v. HILLSBOROUGH COUNTY SCHOOL BOARD and Insurance Company of North America, Appellees.

No. PP-415.

District Court of Appeal of Florida, First District.

Aug. 15, 1980.

William M. Holt, of John A. Chilldon, P.A., Tampa, for appellant.

Hamilton H. Whaley, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.

LILES, WOODIE A., Associate Judge (Retired).

The only issue on this appeal is whether Appellant, injured in a compensable accident while employed by the Appellee School Board, will get the benefit of the amendment to Florida's Social Security Offset Statute, Section 440.15(10), in Section 6, Chapter 75-209, Laws of Florida. The Deputy Commissioner held that because Appellant was injured prior to the effective date of the amendment, it was not applicable to his case. We disagree and reverse.

When Appellant was injured in July, 1974, and February, 1975, the Florida off-set statute provided that an individual's benefits under Chapter 440 could be reduced by the employer/carrier to the extent the sum of the individual's Chapter 440 benefit and his social security disability benefit exceeded his "average weekly wage." Section 440.15(10) was enacted in response to 42 U.S.C. § 424a(d), providing that, where a state reduces benefits to injured workers based on the worker's receiving state benefits and federal social security disability benefits, the federal off-set provision, 42 U.S.C. § 424a, will not apply. The federal off-set provision reduces an injured worker's social security disability benefit to the extent that the sum of that benefit and the worker's state disability benefit exceeds 80 percent of the worker's "average current earnings." The 1975 amendment added that Section 440.15(10) (a) "shall not operate to reduce an injured worker's benefits under this chapter to a greater extent than they would have . . . been reduced under 42 U.S.C. § 424a." Because of the different wage bases on which the federal and the state benefits are computed, ¹ no off-set would be applied to Whitman's benefits under the Federal statute; whereas, under Section 440.15(10), the off-set reduces his Chapter 440 benefit from $90.72 per week to approximately $53.00 per week. ²

We agree with Appellant that the Deputy Commissioner erred in failing to apply the 1975 amendment. As is pointed out in Appellant's brief, the Deputy was unaware of several decisions of the Industrial Relations Commission. See, Patrick Fruit Co. v. Boykins, IRC Order 2-3904, Husky Industries v. Mixon, IRC Order 2-3905, A. C. Scott Construction and Paving Co., Inc. v. Miller, IRC Order 2-3906, and Joe Patti Seafood, Inc. v. Neuman, IRC Order 2-3908, wherein the Industrial Relations Commission held the 1975 amendment applicable to compensation payments made after its effective date, irrespective of the date or dates of the accidents which caused compensable disability. Therefore, the 1975 amendment applies to this claimant.

No rights with regard to the social security set-off could arguably have vested until June, 1979, when the employer/carrier first applied for it....