06-01-2000�
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ACTIQN AGEtVDA
Boar� of Trust�es of the Employees' Pension Fund
June 1, 2000 - 5:00 p.m, - Commission Chambers
1. Call to Order - 5:04 p.m.
2. Approval of Minutes - 5/15/00 - Approved as submitted.
3. (Cont. from 5/15/00) - Approve payment of pension benefits & interest from Pension
Fund for foiiowing retirees: Larry Hahn, Jr., Judi Acker, Terrence Rowe, Emanue!
Hutchinson, Gary Lutman, John Nicholson, & Michael Dandaneau, for total
584, 761,72 inctuding reimbursement to Central Insurance Fund ofi S � 8,453 that has
alreacly been paid - Appro�ed.
4. Approve Chapter 175 and Chapter 185 changes tc� City of Clearwater Employees'
Pension Plan; authorize staff to proceed with ordinance revision - Approved.
5. tJther Business - �lor�e.
6. Adjourn - 5:20 p.m.
� Trust�es or th� �
t� . Item �
Employee�' P�I�$IOIl P�all � Meeting Date: .(.�
Agenda Cover N�eanoe�nduni �
SUBJECl'/R�CqI1��IPl�ND�1TIOIN: Approve payment of pension benefits and interest from the Ciearwater
Employees Pension Fund, far the following retir�es: Larry Hahn, Jr., Judi Acker, Terrence Rowe, Ernanuel
Hutchinson, Gary Lutman, John Nichois�n, �nd Michael Dandaneau for a total of $84,761.72, including
reimburse�nent to the Central Insurance Fund of $18,453.00 that has already been paid.
� and that the appropriate officiafs be authorized to execute same. .
SUlV�[�IARY: Job-connected disability pensions are subject to c�ffsets for collateral benefits such as workers'
compensation and social security so the pension benefits when combined with collateral benEfits do not exceed
1Q0% of the ernployees' average monthly wage.
Recent decisions of the Florida Supreme Court and the First District Court of Appeals have impacted the pensions
the �ity of Clearwater has been paying the retirEes named below. These decisions held the annual workers'
compensation permanent tot�l supplemer�tal benefits �annot 5e included in the pension offset calculation. Prior
to the�e decisions the City was including the annual cost of living supplemental benefits in computing the
pen�ion offset as were most Florida employers. Including the supplernental benefits resulted in an underpayrnent
of pension benefits to these retirees. As a result of these decisions these retirees are owed back pension b�nefits,
penalties, and interest as shown below:
Retiree
Judi Acker
l.ativrence Hahn
Terrence Rowe
ErnanueR Nutchinson
Gary lutman
)ohn Nicholson
Ntichaei Dandaneau
Totals
Additional Pension 4wed
� iu,si �.sz
�,614.75
111.63
11,Oi7.19
4,903.01
14,794.09
i 7,659.14
$ 64,91 i.33
Penaltji Owed Interest Owed
$ 1,081.15
561.48
11.16
2,203.44
980.E�0
1,727.47
1,037.90
$ 7,603.20
� 890.30
754.04
270.76
i ,846.58
323.99
3,253.75
1 1�795.92
�19,135.34*
Total Owec�
$ t 2,782.97
6,930.2 7
393.55
15,Ub 7.21
6,207.60
19,775.31
30.492.96
� 91,649.87
Staff recomrnends that ail sums shown abov� for additionai pension �er�efits and interest be paid frorn the
Ciearwater Employees pension Fund. The Central Insurance Fund has already been used to pay the benefits for
�e�ker, Hahn, and fZowe to sasisfy a mandate from the �'lorida Supreme Court and avoid ac�ditional penalties.
Staff recomm�nds further the Clearwate� Emp{oyees �ension Fund reimburse the Central Insurance Fund
$1 a,453,00 for the payment of per�sion benefits and interest in Ack�r, Nahn, and Rowe. All penalties owed as
shown ab�ve will be� paid from tf�e Central lnsurance Fund for ihe reason tEie penalt�es are owed because af a
Florida Workers' Carnpensation statute that has impacted the pension fund. (*estimated inferesfj
Revie�ed by:
Legal NA Info Tech N,q
Budget NA Public Works NA
Purchasing NA DCM/r�CM
Risk Mgmt NA Other NA
Submitted by: j � ____
Cit4+ Mana er �
�P��r,ted on recycicd paper
Originating QepZ: �-
Finance/Risk Mgrnt.
User Dept.
Huma� Resources
Attachments
None
O N6ne
' Costs
Funding Source:
Caplial Impro�crtxnt
Operating
Other
x
761.72
Total
,761 J2
Current Fiscal Year
Appropriation Code: 646-07411-514600-585-000
646-07410-514i 00-585-Oq0
Rev. 2198
� i
b. �. .
C�,AIM S�TTLEMENT MEMORANDU�i
TO: Claims Commzttee
FROM: Jon Marcin, Risk Management Specialist
DATE: May 3, 2000
SUBJECT: Claimants: Larry Hahn, Terrence Rowe, Judi Acker
PURSUANT TO SECTION 2.527, CODE OF ORDINANCES, CITY OF
CLEARWATER, T%iE UNANIMOUS CONSENT OF THE UNDERSIGNED ZS SOUGHT TO
COMPROI�IISE AND SETTLE THE ABOVE;-CAPTIONED CLAIM PENDING AGAINST
THE CITY OF CL�.�RWATER.
I. Brief description of claim.
These three claimants are all City pensioners receiving job-
connecte� disability pensions. They receive, or have
received workers' compensation benefits with their
disability pensions. For more detail, see the attached
Memorandum dated May 3, 2000 from the Risk Management
Division.
II. Date of pr�vious claims committee meeting.
None.
III. City Expenses incurred to date.
The City has incurred attorney fees for outside counsel in
trial of the original cases which the City won, and then for
defense in the First DCA and in the Suprerne Court.
IV. Authority Sought:
A total sum of $2a,106.79 for all three cases as set forth
on Fage 3 Qf the Memoranclum dated May 3, 2000 issued by the
Risk Management Division
V. Previous negotiation authority approved 'by claims
committee.
N/A.
VI. Settlement Demand
. _
See attached Memorandum
VII. Claimant/Plaintiff's attorney.
William Yanger, Jr.
VIII, Settlem nt thorization
A. A r ved
. /\
B. ,� Approved
Tampa, Florida
o/W. Schrader
�sk Manager
Denied
Denied
Assistant City Attorney
C. � Approved
Michael Roberto
City Manager
Deni�d
CLAIM SETTLEMENT NiLNlQRANDUM
TO: Claims Committee
FROM: Jon Marcin, Risk Management Specialist
DATE: May 3, 2000
� SUBJECT: Claimants: �manuel Hutchinson, Gary Lutman, John
Nicholson, and Michael Dandaneau
PURSUANT TO SECTION 2.527, CODE 0"r' ORDINfiNCES, C7TY OF
CLEARWATER, THE UNANIMOUS C4NSENT OF THE UNDERSIGNED IS SOUGHT TO
COMPRQMIS� AND SETTLE THE ABOVE-CAPTIONED CLATM PENDING AGAINST
THE CITY OF CLEARWATER.
Z. IIrief description of claim.
These four claimants are all City pensioners receiving job-
connected disability pensions. They receive, or have
received, workers' compensation benefits with their
disability pensions. For more detail, see the attached
Memorandum dated May 3, 2000 �rom the Risk Management
Division.
II. Date of previous claims cornmittee meeting.
None.
III. City Expenses incurred to date.
N/A.
; IV. Authority Sought:
� A total sum of $71,543.08 for all four cases as set forth
on Page 2 of the Memorandum dated May 3, 2000 issued by the
Risk Management Division.
V. Previous negotia�ion authority approved by clairns
committee.
N/A.
VI. Settlement Demand
• See attached Memorandum
VII. Claimant/Plaintiff's attorney.
No attorneys are presently representing any of these
claimants. If the City resolves these claims in accordance
with current law as cited in the attached Memorandum, there
should be no artorney involvement.
VIII. Settlemen
A.
:
thorization
Denied
'Schrader
Manager
� Approved Denied
Assistant City Attorney
C. � Approved _ Denied
Michael Roberto
City Manager
CITY OF CLEARWATER
FINANCE DEPARTMENT
Risk �lanagement Division
FILE MEMORANDUM
Re: Pension Offsets Computed As of 5/ 1/00
This File Memorandum contains computations showing alt sums presently due
former City employees who sustained a work-related injury resulting in the
payment of a job-cor�lected disability pension and workers' compensation
benefits. These benefits ha�•e been awarded b�� either the Florida Supi•eme Court
(SC) or Florida's First District Court of A,ppeal (First DCA) in the three opinion
cited at th� end of t�is memorandum, These decisions involve, among other
things, the cornputation of pension. ��orkers' compensation, and social security
offsets.
The following four employees ha�•e had their offsets computed per the recent First
DC� �pinions in State v. Henr��, and State v. Sever. These decisians hold that no
permanent totat supplemental benefits are to be included in pension offset
calculations. That was the question the SC specifically declined to answer in
Acker. vs. City of Clearwater. Absent being ovei-turned later by the SC, Sever is
the current law as it pertains to all former City of Clearwater epnplo5•ees «�ho
co�lect a job-connected disability pension, except Ackel•, Rowe, arid Hahn, whose
cases were all decided in and as a part of the Acker decision. No workers'
compensati�n professional e�pects the SC ta overturn Sever because the �ever
decision a�pears to be totall`• in line with the comments made b� SC Justices
during oral argument in Acker, and because it is con5istent with their findings in
Acker,
Here are the computations for those four foz-mer City employees:
Forrnei• Empio_��ee„ Pension O���ed
Emanuel Hutchinson
Gary Lutman
John �ticholson
Michael Dandaneau
Totals
$11,017.19
4,903.01
14,794.09
17,659.14
$48,3 73.43
Penalt�� O�ti�ed Interest Owed Total Owed
$2,203.44
980.�0
1,727.47
1,037.90
$ 5,949.41
$1,846.58
323.99
3,253.75
11,795.92
$17,220.24
$ 15,067.21
6,207.60
19,775.31
30,492.96
$ 71,543.08
The following three former employees are covered by the decision in �cker vs.
City of Clearwater. The Acker case dealt with a certified question from the First
DCA, basicall� asking if an employer, who includes p�imanent total s�pplernental
benefits in its initial computation of the petlsion offset, may then recalculate each
year the offset based on permanent total supplemental increases received annuaily
by the former employee «�h� is a penstoner.
This decision held the annual permanent total disability supplement that i� paid to
the claimant annually is essentially a cost of li�ring adjustrnent, As such, the
benefit should not be used to recalculate the pension offset annually to include
them in the 100% benefit cap reflected in prior decisions. The Court reached this
result by finding that to do so would defeat the purpose of a cost of living
adjustment.
In these three cases (Acker, Hahn, and Rowe), the supplernents vwere included in
the initial calculation of the �ffset. The SC declined to address the question
whether oi- not it was correct to inctude them. Consequently, the SC did �not
disturb the First I.�CA decision in allowing inclusion of those benefits in the initial
calculation of the offset. (A,ctually, it was stipulated by the thr�e claimants in the
hearing before t�le Judge of Compensation Claims that such benefits were properly
included in the initial computation of benefits). Such supplernental b�nefits are
therefore included in the following three computations:
z
Fmployee Pension Owed Penaltv Owed Interest Owed Total Owed
Larry Hahn
Terrence Rowe
Judi A.cker
Totals
$ �,614.75
111.63
10,�11.5?
� 16,537.90
$ Sb 1.48
1 1.16
1,081.15
$ I,653.79
$ 754.04
270.76
:•1 i
$1,915.10
$ 6,930.27
393.55
1 �,7�?.97
$2C1,106.79
Sa far as the Citv is able to ascertain at tl�is time the seven (7) workers'
compensation cases contained in this mernorandurn are the only ones within the
City that have pension offset issues ir�vvlving ar�nual su�plements that are effected
by these three decisions. Fut�lre wol•kers' compensation/pension offset cases will
be governeci by the �-I� and the Se�er decisions, and will not include any
supplemental benefits iii the �ffset calculations.
1��'�'C)16?'1Vf.�t��.-� 7'IO1W:
The recornrnendation of the Risk Management Division to the Claims Committee,
the PAC, and to the City of Clearwater Pension Trustees is that the City pay
initially all sum necessai•y to satisfy the �C il�andate in the Acker, Hahn, and
Rowe cases fron� the Central Insurance Fund (CIF) with the payment of funds
b�ing authorized by a Claim� Committee Settlernent IVlemorandum issued by the
City's Clairns Committee to settle litigation pursuant to authority contained in
Section 2.527 (4) City of Clearwater, Code of Ordinances. rI'�es� sums must be
paic� on or before Niay 19, 2000, to avoid ��ot�er statutoA-y pena�ty af tvven�y
per cen� (20%).
Sim�ltan�ously�, Risk ManaQ�rnent personnel will prepare a CIaims Committee
Settlernent Mernorandum for the Git,y's Clairns Comrnittee recommending
settlernent of the other four cases as outlined in this memorandum together with
agenda item(s) as required to bring the proposed settiernent before the PAC and
the Pension Trustees seeking authoriza*.ion to reimburse the CIF for the
expenditure of funds used to p3y in a tirnely manner the SC mandate in the Acker,
Hahn, and Ro«�e cases, and to pay �irectty from the Clearwater Eir�ployees
�ension F'und (CEPF) those sums of rnoney necessary to pay Hutchison, Lutman,
Nicholson, and Daildaraeau the surns due to them pursuant to the decis�ons in
Hen� and Sever.
�
In a!1 seven (7) of these cases, Risk Management personnel propose the statutory
penalties be paid from the CIF because these penalties were incurred due to the
pr�visions of Section 440.20 (6), Florida Statutes (a Florida workers'
compensation statute), and the peirsion and �jlterest owed to each former
employee be paid from the C�.PF hzcause the CEPF has had tlie use and the
benefit of these funds f�r a number of years.
CIT'A7'dO1NS: (Copies attached)
State v. H�, 24 Fla. L. Weeki�r D2467 (Fla. App. 1 Dist. 1999)
i State v. Sever, Case No. 1 D98-4247 (Fla. A.pp. 1 st Dist. 2000)
; CitX of Clearwa�er v. Acker et al., Case Nos. 93,800, 93,983, 93984 (Fla. S.C.
� 2000}
Dated: May 3, 2400
_
3b�i C. l�arcin
Florida Licensed Adjuster/
Ris�.�VianageYnent Specialist
L�o W. Sc a r, Attorney
Risk Mana r
4
�
MANI�.A.'T�
S UP.�ME C C� tJ�.T OF FI� O� J�]D�9►.
To the Honorable, the Judges of tlte:
I�I�STR�CT CUUIE�'T OF APPEAL, FIIt2S�' DISTRI�T
WHEREAS, in that cerrai�i cause filed in this Court sryled:
CIT� O� CI.E���VA,TER vs. J�J�I �.CKER
CI'TY QF CLEA�t�VAT.iER vs. L�W�ENC]E �T
�`IT'Y OF C��AR�VAT�R vs. 7['ER1t�NCE gt�VV�
case :�os.: SC93800; SC93983 amd 5�93984
Your Case Nos.: 1�97-2719; 1]D97-2721 �nd ID97-4270
77re attaciied opi�iio�r tit�as rerrdered ai: DECEMBE� 9, 1999
YOU,-�RE �fEREB�` C0��1 �IANDED �Irat further proceedings be had in accordance witli said opinion,
tlte rule of tliis Court and tl:e iaws of !he State of Florida.
ti�I7NL�SS tlte Haiorable Major B. Nardi�:g, Clrief Justice of the Sc�preme Court of
Florida and the Seal of said Cour� at Taltalaassee, tlTe Capital, on �/iis 19t1: day of April,
�OOO. . ����Ai.'`'?_tl:\ �^.•
.. �}�::� �,_.\ •� - `•
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-r.r o i },.-�'��tl� ! `t ��r`� :► L :
ti�'"�"''(' '� wi � •`. ; . ,-t.
''�.y�s;�-= =�r�; ;-�'-'�� g Cle�•k vf llie Supreiite Cot�r� or�Florida
f �.: .:.� ,,, � , .
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CIT'� �F �I��EA�WA'TER,
Pe�itioner,
rrs.
J�ITD� AC:�R,
Respo�d�nt,
iVo. 93,983
CI7CY �F CLE�Bw�"T��,
Petrtivner,
vs.
L��EN�E �►H(I�,
Responde.nz.
0
•�• �� �� lt••. »JNV ♦NVJ � . -- - �vvv
ATo. 93,984
CITY O�' CI•EARV�ATERo
Petition�ar,
v�.
TIER�NCE i�O�E,
- Rcsponden�.
[Deceaab�a� 9, 1999)
QiJIl�TCE, J.
'�Vc have for r�view three decisio»s c6rtifyirig the follovt+ing quest�oA to be of
great publi� impartan.ce:
��� �►.N F.1�LPLOYE�Z T��FCF.,S A W��RS'
CO1viPENSATIOI�I 0����C UNY?� S�C`�''ION
440.Z0(1 � ), FLC)�tIDA S'Y'A'�'UT�S (19E5}, �NU
II`JITI�d.LY IIVCLLTI��S SUPPL,EMEN°I'AIr ��rl�FITS
P� UNDEFt SL•�TION 4�U.15(1}�e)I, F��A
5T'A'I°LT'I�S (1985}, IS THE ��PtO'� ENT'T:CL�3
'T� R��ALCUIrAT'� TT�E �FF`S1ET ��.SEI� �1�T TI-�
YE�.�I.Y S% INCR�AS]E II�T SUPPLEfl/�EN'TAL
�3�NEFITS?
��k�r vlC�ty of Ciearwa��r, 2 3 Fla. I,. Weekly p 1970, D 1971 (�la. 1 st I,CA Aug.
17, 194�); �ehn v C�,tyPQf.�Ieac _w_atCr, Z3 Fl.e.. L. We�k1y �2120 (�Ia. lst DCA
Sept, 9, 199�); Rawe_v_. City o•_ lea�vater. 23 Fl�. L. ��ek1y �2I2Q (Fla. l st
-z-
��r� �v ... ♦�.�. �/.ivV ♦vUM
ra, � � v
DCA► Sept. 9, 1998). We havc jurisdiction. S�g �rt. '�, § 3(b)(4), FIa. Const. For
the reasons stated beloM�v, we answer the certified question in thc ncgativ�.
��Y af� ��r v. Jud� AGk�r. C�.,s� PT�be� 93,8U0
Ia 1986, Ms. Ackcr was injured in the scope vf her employmen� Init�ally,
the Gity of �lcazw�tar (tize Citya deAied her �vorkers' c.vrnpcnsation beA�fits. Frmra
1986 u�il 1954, l�s. .�cker oniy Yeceided an inVline-o�duty disabiiity pension. In
19�4, s�he was aw�rd�d rettoactive �vorkets' comp�nsation r►onsisting of two lump
surn payments in exc�ss of Si 50,000. T'hereafter, she receiv�s3 ��rkers'
cornper�,s��ion p�rmaueat tvtal disabiiity b�nefits (wc�rkers' �mp�saYion benefit,�)
ac�d worke�s' co�pansation permaner�t total supp)crn�r�tal disabilitY b�nefits
�sca�opl�asntal benefits) in addition to �er in-lir�e-of-duty di5abiirty p�sioa� b�tefits
(p�nsivn b�efts).
�3ec�u.�e Ms. �cker was receiva�g more than 14Q percent af her �verag�
weekl� wa$e (A'�V),� her pension b�r�fits were offset so that hc�r actual
c�rnpensatian wouId nat exceed 100 pet�cent of her previ�us AW�V. �g §
' Tha dist�rict court'g opimoa refers to Lhe svera�e monthly �rag� (A1V�V1�, pr�e,suuiabty in
tesport�e !o tbe t�ern� usad ia ��n v,.C� Q�iarrv, 545 Sv. 2d 252 (�1�.1989). In �
the Court Ii��d a wor�c�r's eo�bimed bane,f�s $om workers' comprnsation aasd pensiorn 6a�efits
to 100 pet�e� of � wo�kcr's �NSW; calculareri by mulelplyir►g tha AWW by 4.3. �lI rclev�r�t
st$tutes end moat of the othe�r cases addrqtsing tbis issae refcr te the AWW. ratber �n t�+e AMW;
th�cmfore, we h�tve ma3itied t?� opinion to acf�t to thc AWW for �ortsisto'tizy. This el��nge does
not sfi'eet tt�a subst�ti�►e aaalysis.
-3-
.. �• _ r �� .vvv .. �._-. . .. � UVi/
440.20(IS), Fla. Stat. (1985). Th� offs�t was initially catculated by add'utg tvgether
alt the ber�cfits she was entitled to r�ecei�re, includ.ing work�rs' co�pensation
benefits, pension bsn�fits and supplesuental benEfit�, which had accrued as of that
date, then subtra�ting h+er pravious AWW. E.ach year, pwsusnt to t��� s�pplemental
beneft� statute, Ms. �4eker was gttn�ut�d a five perc�t co�t-of�living increase.
�ee §�40.15��){e)1, �'la. Sta�. (1985}. Howeyer, becatise ber total benefits alre.ady
ex�eed�i tur ��1V, she rever �c�tua�lly r+eCeived er�► of the increases. T�e five
percenx increases r�ll�d over itrto the o�e�
�vis, �cker conc�ded it was proper u� it�clude supplernentai bene�its in the
initiat o�'set calcul�tion; however, s� asserted it was improper far the City to
rec�lculate the offs�t annually to includ� subseq�ent increases iri supplemental
b�nefit�. S��e argued the purpose �f increa�e.s in suppl��l bene�its was to
prvvide p�r:nancnt�y and totaliy disable�. warkers with cost�of-Iivirlg incr�ases, and
that inc�u�ing ir�caceases in supplementa� boncfits in the pe�sion of�set defeated the
I,��sl.a�ue`s pt,upose for �nactin� the supplemetYta.l benefits statute. The judg� of
cornpens�ti�n claims (.�CC} wa� sympath�tic to th� argument, t�ut l,aid �t was
proper for the p��►sion v�iset to be rec�alculated annually to include increases in
supplemet�al ben�fits, �"hc �CC reli�ed ot� Cyt.y of�TQrth Bav Vi�la�te v. Co�k, 617
50. Zd 753 (Fla. 1 st DCA 1993), atvd �scat�bia CountY_S rif�'s.��partment v.
-4-
.. � • . _ .. . � • ' . � �� V V V • V V M ' r � � � � • �.. �� V �r y
Gr____ice., 692 So. 2d 896 (�'!�. 1997�. The First Dis�rict rev�rsed tile 1CC's de�ision,
�oldin� ar�nua.l inereases in supplemet'tal ben�fits shoulc� nvt bc used to calculate
offs�is. ,� �►�_ ���_�tv Qf CIearw ter, 23 Fla. L. 'VVeekly D 1970 (F�a. 1 st d�CA
Aug. 17, I998). ihe district �ourt adopted Ms. Acke�s ar�ucncr�t that r�calcuiating
the o�'set to �aracomp�.ss increases in supplementaI benefits �vould fYVStrate the
legislative purpose of providing cost-of-living increases to �rc�aAe�ty and tot�lty
disabl�d workera.- S�e �ic�., T�e district ec�u�t acknowledged its dees�ion that not to
include thc increas�s in supplementa.l beflef�s in th� p�usion o�set appeared to
c4�flict wiih �he f�gures this �ourt us�d to calcuiaxe the off��t in �, 692 So. 2d
at 896; l�owev�r, it dis�sussed the a�parent conflict, opining that t�is Court fa�Ied co
squ�rely adc�ress the supplernenta� bene�its �ssue in tbat case. �g �e Citv of
C,�ea�w 23 Fta. L. 1�a�kiy D 197� (Fl�. 1 st DCA Aug. I 7, 1998).
Fo� the r�asons exp�ssed b�low we ans�ver the cettif��d question iuc� th�
rtegative and �pptove the Fitst District's decisi�ll �1 c E-��1d
The suppleme�taI benefa�ts statute, w�ich was enacted by the �,egi�lat�ue
during its 1974 sessiQn and became effecUve o� Uctober 1, 1974,2 pro�ides:
2 Tius statutory prorision has remained substantially unch�.*�,ged sim�cc iis enachn�nt,
except fer thz clarification tb�t thg appli.cable statewide AVVW is tbe st�tawi.�+c AWW at t}�e dme
of peyment, sg,� S' v. State tiV'�'�rs' Cp�n„�s}��ti�n���SL 4g 1 So. 2d 76 (F1a. 1�t DCA
198�, and the �dditiots of a pravision v�hich teisnninates this ben�fit whcs� 4hc r�pieat becornes
dligib2a fbr sc�cia! sacurity r�tv�cmont banafit� and socieI scr�ity disabitity bonefits. ���r
j����Ar+� 7ns. �o�,v, Mo�,o, 689 So, Zd 28� (Fta lat DCA 1997).
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��' .•. .• +i'�� yVVV rVVO ..��� .
V±1 u v �
[T�jh� inj tired employee shall r�ceive additional w�kly cor�p��nsa�ion
b�neftt9 equal to S percettt of his w�eekly co��nsaMon rate, as
est�blished pursuant to �Iie law in cffect or� the date of his injury,
�nultiplied by t�e nwmber of cal�ndar years sit� th�e date �f anjury.
The ureekly con�ensation p�yabl� and additioaai b�u�ts payable
purstaant to this par�graph, when combined, sh�ll t�oi e�ceed the
maximum wetkly �oatper�sati�a rat� in effect at the �irn.e of payment
as dete�in�d pursuant to s. �0.12(2}. �
§ 440.15(��ex�), �.. Stat. (19��).
Ti�e Ciry now claim� in�reasea in supp�ementei bea�fits are co�pensa.tion
and should b� includsd in off�ct calcula�ions und�r s�don �40.20(15�, which
�ro�►ides:
�en an e�plAy�e is a�jured ar�d the �1oyGr peys his fiill
v�ages or � par� �of duri�ag tbe �eria+d of disabilzty, ar pays
t�sdic.al exp�nses fmr such e„�gI�yee, and fh� c�o �s 6onfested b� the
carrier or the c,arrier and emgloy�r a�d t�eae�a the cr�rrier, ei�kh�r
vvluntarily or pursuaa�t to an �ward, r�Jccs a gsa.yt��nt of
compens�ti�n vr nzec�ir.al benefits, the �z�loy�r sha�11 be erYtitl�d to
r�imbursernent tv the e�x�u of �� con��ss,atioa� paid ar awardcd,
plus medic�i bene�s, ef az�y, out of ti� �Srst praeeeds ��id by thG
carrier in coss��ia�ce with such �roluntary p�g�u�nt vr a�ard, provided
the employer f�ishes �atisfactory pr�f to tb►e judgc of compensation
clain�s of sueh p�ytt�e�,t of com�pe�sa�ion anct� medicat be��its. Arry
p�ymerrt b� the efnployer o�er and above c.o�n.p�nsmtion paid or
awarded and medical benefits, pursuant to subsection (l�), shall be
c�nsidered a �ratuity.
§ 440.20(15�, Fla. Stat. {1985). Section 440.20(1�) has b+een interpreted to mean
that a� injured vvorker's cvmpensation frort� a11 sou�s �anaot exceed 1 UO p�t�cer�t
of his indiv�dual �iWW at the time vf the injusy �,,,.e �arr�„tan v. Citv of MiQrni.
�
__ ._ _. .���� .��� ••--- •- �J008
�
545 So. 2d 252 (Fla. 1989).
rt is undisputed that the Y.,egislatt�e ir�tcnde.sl supplemcntal b�nefits to
provide cost-of-tivi�tg u�cre�ses for p�t�nanently and totally disabled workets [a
accocint for ihe impact o£ inflation. � DepartYn�nt af I.�b�r �c ExnulQv�ncn�
v. V u , 41 l So. 2d 29�, z95 �. Ist DCA I982�5tatir�� Purg�a�e of five
perc�t� �t�rease is to "partially o�set t�e e�ects of infla�ion"). In �ip�v_: St�te
�1Vorke�' Compensa�on Trust Fund_ 481 So. Zd 76 �k'1�. 1 st I�CA 19$6), th� First
Iaistrict elaborated on tha t,egisl�ture's purpase for enacting the statut� stating;
Cl�ima�at's argur�nt[g] is inc�nsistent �+ith �he purpose of
supplernrntal be�nefi�, which i� to r�r�t�ct reGi�i�Q� of uu�riodic
ben�fits fr�tr� the lon,��t e o�inil�ion �i x°�du�e the valu�
of � f�ced a�otu� of b�A�fits. I1�e e�ects of in�ti�n ar�e the same
irresperciere of th�e rnethod of calculati�g sup�pl�me�tal b�neftts. 4rtc�
� Ituz�p-sum payt�tent is authorixed aRd received purst�arft to section
�0.20, a cia.iaaant has the opt�on to invest t� fuasd� a,nd o�et the
effects of infl�e�on so that t�� purpas� of suppteme�al b�nefits is
s�isfied.
�d... at 79 �ernphasi� add.ed).
C1eatly, the stated purposc fvr the enactm�r�t of s�ction 440. I S(1 �e)) , as a
h�d�e �gair�st inflation, �rould be fi-u.,4trated under the City's irit�rpret,ation of
' Thc �laimant ia � was arguing h,� was cmliUed cc� suppd�t�eal be�efiis �von
thou�h ha �ad 9etticd hi8 vvo�lc�s cotupetssatior� c)a.im with e lurn�a-sutn payncbctii.
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•
9�ct�ioa 440.20(15� �'�"hus, thsa� is an appaa�e�t coAflic� between the purpose o�'the
suppler�ae�tal benefits statvte and the City's �rgunaent that sect�on 4a0.20( I S}
�u�es increases in supple�e�t�tt beszefits to be inclt�ded in offset �culations.
"Where ... two statutes are found to be in conflict, tules of stai�uto�y construction
�ust be applied to rc.�oneile .., the Conilict. �Ve are aided in.this task by Yhe
m�xira th�t 'legislat�v� inte� is the pole 9tar b�r whi�Ch vde t�ust b� guided in
intcrpreti� xt�e prov�sions of a layv.'" �eF3��t v_ I�ana�ant of_H��&
Reh_, ab ��e�vc S�rv,s-. 427 So. 2d lli, ZZa (Fla. 1 st �CA 19�3){qtiotu�g Par�______ker v,_.
St.�t�. 4Ub So. Zd 10$9, 1092 (Fla, 1981)�.
Acccardin�ty, tc� reaii the s�tppl�r�aent�l be�efit,s s�iute aaid the 100 pereent
cap statu� harmoniousiy, ti�is Cnurt must �sstuae tile I�egiSlattue did not inte�d
o�s�ts to be aatt�ually rccalcui�ted to ac,�our�t for cost-�f-living iu�crca.s�s in
suppl��al benefits. Tc� �old othetwisc would pr�vtnt inj�ated v�vork�rs �'xou�
receiving cost-of�liv�ng incre.ase� and would render th,e suppletnental benefits
` Moreodcr. r�ci�i�cnts of periodic pay�neats, e�sp�ial�y thesa •�vho are recciving 100
pe�:�ctt of their indivicival A� and �vh� coutd otl�rwi�e qualif�r for ltu»p-su�ra paynaents,
wotild }�ve t10 ir�entive to roceive n�ib?y p�y�nYa. ,� S�i�. 481 So. Zd at 79 (statir�g
"ltttt�p-svm p�yrt�ct� are nat � f�vored re:neady"}. Indeod, as che .�irst �istrict pointed out in
,��„�, a workcr'� compatuation c�imAUt could teceiva 8 It�p-�ut�t paymesrt, imcst it �nrisoly, a»t3
rv�ia.e t�c f�vc p�r�t .incre�a� m bern�fits de�ied by o�� iwcreases in suppl�mental bem�,i'its
throu�Pt aat�ua! rec�lcu�atio��.
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statute vis�u�l�y r9ieaningless.s
Additional suppo�t for this irrterpretation is fouad by looking at tht statutes
from a hi,storica.l p�rspective. V�hea t}� supp�emental bcncfiis statute wa,g enacted
th:�xe was anly onc limiting cap on injured workers' benefits, the statewide �1.V�✓W.
?he staiev�ridB e�l,WW w� set by the �ivision �f i�fi'oxkers' Cc►a�z�n�ation and was
ineressed eru�uuaiiy to account for itx�ation. �erefvre, tha auppi�rnen�at benefi�s
statute �ed �he injur�d wc�rkers' tota] cAmbined wor�:ers' conzpensatioa and
supp��.eAt�l ber�efit,� at the staiewide A�. 'i"h�s allow►ed injur�d ww�r�ers to
receive cost•�f-liviaig �11owa�ces.
At t�ic tirne ttie supplea�ental tses�ef ts statute was ena.cted, �he Legislature
obvious�y conteraplated work�e� w�ould re�eive i� excess of 100 percene of their
it�ciividuat A�NW frorn. cost-af-livin� icicre�ses. The supplemcn�l benefiLs stat�tte
was enac4eci in 19i� but �v�s appli�d re�aoactively to aII w�orkera whc� had bee�
inj�ed af�er 1959. Accordi.�ty, if a wor�er bac� beett injure� in 1g59, at�d h�d an
�►W� of �70,b the woPker wvuld t�cesve S4Z in workers' comp�nsativn benefits
ard �31.SQ ir� supplemen�al benefi4s. �e combin�d workers` co�p�t�satiot� and
s.�loreov�r. by expr�ssly st�ting that s�pplemet�t�l b�fits shouid os�r be litnit�d by t�e
slatewid� A�, and a�t �ntiouing �y othEr Iimitat,iofls, the Legtistazu� implieitly stated tha.e
pe��na�tcentty and totaliy dis�blec3 w�rkoca wca�e ttcat oth�vise iirniCad in ti�e a�mount ei
SuppIcs.�-.tal bcnefits thry could reccivo.
� In 1959, S�o wes �c sta►.cw;dc aww.
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.
sttpplemental benefits payable to st�h p�rson in 1974 would be �73.50. Th�t is
�3.50 more thae� tha worker's AWW at the tirne of ihe �ccidea�i. 'Y'hus, at the tirne
the su�piem�ntat benefit.s statutie wa�s enacted, the L,egisi�ue eould not have
inte�cied �ombi�ned bcncfit� ro f� Iimited to I 00 percent of the workear's A�VW at
t�i� titne of the accid�nnt,
The City conten�s tha� �h� L,egislaU,ue's subsBquant enactine�e of secuon
44�.Z0(I5� �x�ress�d the Le�isla�ure's d�si�e that increases in sugplerneufa.l
benefits be i��IuEded ia affset calculatior�s be�ause the Legis�tttu�e did not s�te that
increases in supp���ntal benefxts �hhoutd b� excluded. We disa�ree. i'o adopt
s�ch a�iteral urterpt�etatio� ignores the bsstorical developmeut of sectioz�
�o.zo�t s).
tn t 979, �.L�egisiature e,r�act�d sectie�n 4�0.20(1 S�. The plain l�ag� of
section a40.20(15) does not ��ate that injured workers naay rio� receiv� i� exeess of
100 perrcent af thcir i.a�irridual ��N, rnstead, it stat�s that ernployers who paid
injurcd workers theit ben�f� prior tQ a carta�r's voluntery asssarnption �r
detetmination ��tiability wili onty be r�irubursed ug to lOD �erceat ofthe i���ued
worite�s ir�ditiidual AW1�V. It was a�t �nta 1989 that this C�u�t intergreted sECtion
44Q.20(15) as lisn�iting an injur�d work�fs combat�ed bene�ts fram aIl sourees te
100 perceat of l�is vr h�,r individual AWDV. ,� ���n, 545 So, 2d at 252.
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Tht City is asking this Couct to loc�c at t�e language of s�tion 440.20(1 S j
and hoid supplernec�ta� benef�ts should be incIudcd i� of�et calculatians becaus�
the L,�gislatu� did not spee'�'ically s�e that increases in supp�e�mernal benefit�
should be excluded firo� the �alculations. Had the 1�0 p�r�cerrt cap come from a
�rict�y (iteeaI reading ofthe sta�rte, t�us n�g�t be in order. However, vbrh�ere the
1 t30 percent c�ap is a jttdici�l interp�eetatiog �rf su amdbiguous s��atvte, and a.ay finthrr
e�p�n�sior� of the s't�ute tbrou,gh judicial iz�terpretation �►ot�ld r��der anoth�r statute
mea�ttangle,�s, this Court m�.st firs� try �o read t�e stat�,ttes barrnoa.iously. This can
be dosxe ift�us �Cowt assuanas tt�e I,,c�islature aev�r contempia�ee� o�`sets would be
�uall}► recalculated ta encot�p�ss is�Gr�ases in s�pplernetital t�efiPs madc a�er
tbe initia! d�iermi�atioai of be�efits.
�'his C�urt's h�rno�ious iute�p�etstion of the supp�ernan�l benefits staaite
and the 10Q p�c�cr�t cap stature is also sup�orted by the Le�i.slature's subs�querit
amend��nt of thc suppl�m�t$I ber�efits st�tute. �y ames�diag �the statute, th�
Legislature re�ffi�nme�i its desi�e ta give permancntly and to�nlly �isabted workers
ben�fi�s bas�d upon th� current value of th� doU.ar rather th�r� the value of the
dol]ar �t the time of t�ie in,�ury.
O�igin�lly, the:�e �as �oane aarbig�ity as t� �ethec rhe �tat�wide A�VW cap
coz�tsine�d in the supplement�l beae�ts statute ref�rs�d to t(�e stat�v�+i�ie AWW at
.��.
the time of thc iaj�r or at thc timc of paymen� ,�g� �, 'Ybe stattr� wa� ar�ndad
to state that corttbined wor�rs' compensation and sufpplem�aAt�.t benefits should he
�PP� at ttze s��wide A�V at the ta�e af p�c�. � palote C�arP. v.
eredith, 482 So. ?d 515, 517 �Ia.. lst DCA 1986). �y smer�d�ng the s�atute in
this �ay, the Legi.sl�turs reaf�i�'med its d�s� to p�ovid� p�rr�nently and tot�ally
disabled work.crs with cost-of living increases ba,s�d upon the cumerrt value of the
dailar. It �vould thwart th,a very %undation of t�u s�Qplem�et�tal b�rt�f�s s�atu�te if
this �ouj°t wese to aow h�vid ti�at ana�ual inc�saes i,ts suppie���ataY be,nefits �+equire
v��ts to be ann�zally rec�tcuiatxd to e�c�on�pess �lae iz�c�eases.
For thes� r�asor�, �+� appr�v� tise �ust �is�rict's decisi�n in ,�c.k� Cit��:f
Clearv�i��, Z3 �ia. L. �Veeklg� D I970 {Fta. lst F�A Aug. I 7, �998): �e da rtot
express any opinion �s to ve�h��,er supplementsl benefts accruir�g �rior to the date
ths injured �rork�r is �c�pted �s p�aa�errtiy and totally dis�bl�si sh�uld be
included in �tbe uutial off�t calculations becata.s� tl�tt issue is not pro�erly befiore
�is �Court.
C� �f Cl�ar�ate�r �. I.Awrer�s� �a�.Case �u�nb�r 93,983
In 199Z, i�tr. Hahn was xnjured in the scoge oihis emplo�at � a pubiic
scrvice techr�ician. In 1994, he was �cccpted as penn��ntly �nd totaily dis�bled.
Thereaftes, he bcgan t� r�eive workers' con�ation beae�ts ar�d �upplemcntal
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_ - . . . _.' . .. - . • �VO4 •Jvp +. � ..�.. . � • ,�OI'�
benefits based on his individual �'�W, Ia 7 995, in addition to his work�rs`
GOiti�7Cri5atton beita�t5, Mr. �ahn also began to receive p�nsion bet�efits from the
Cj1y.
His pension of��et was calculaLed based on his cotrtract of hire rate rather
tban his AWW.' The offset also iactuded workors` compensation benefits and
supplsmerrtal -b�nefits. The of�'set �+as rccalculated aunually to includ� cnst-of-
living iricreas�c.s irr supplement�at be�efrts. Mr, Hahu �oncec3e.d ihat supplem�ntal
benefits tha� had accnte�d prior to his being accepted as pe�►anently �d total.ly
disabl�.d shouid be i�ctud�d i� � af�'set; �w�v�r, he contested includ�rag
subs�quent increase� i�'t su�pl�su�ai�t benefits �nd using his cvntiact for hixc ratc as
a basi� for ealculating the oi�'se�
Thc fCC held �IieY it �►as i�proper to use tbe cor�ract nf hire as �e basis for
det��g thc offs�t� but that it .�as groper �o recaiculatc the otiset aausu�Ily to
inclt�de in�rcas�s in suppl�ment�i b�fit�. '�`he F'ust �isttict upbeld the JCC's
''i�e contraet 6or hi�e ttlay resutt in a lu�e�r basc rate fvr calculating ths oil��t thar► the
AV�v b�xause it czcl�d�.s overtim� and t}�o vatue of h�lth itt�sutatsca, V6�hen aa� injured �rorlsc�.r`s
contract of hira taie is used as the b�ae r�te to c�iculatc the 809�0 or 100% c$p oat be�efit�, the rate
vs►itt be lower than the A'�W wher� the i�jur�d wQ�ker had �nploycr provided hralth insurance or
the workor h�d wotked Av�r�e during tlie thiricen weeks procc�eding the accident, vFrhich is the
pc�iod uscd to caL�ulate thc t�►'GVW.
' l�a this issua ia eomplotely saparite ftvvn ti� cesti5cd quostion, tha Court does not feol
obiiged to adc��ss it it� th�is opinioa.
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r�. �. - . ��" . t. .. � � • y�/QV wJyii . .��L I' � a.. �OlY
r
decision on the cc�ntract of hirc issue but r�vet�sed the JCC's decisioa that the
pension vfisets shouid be recalcuieted ai�,nua�► to include incr�ases in
supplement�l bencfits. The �irst Dist�ic't cited Acker v. City of Clearwater, 23 �1�,
L, weekly D l 970 (Fla. t st i3CA Aug. 1,7, I 998), and ctrtified the salme qur,stion
present!ad in thcscin. ��a�_�,��y '�,��vva�er, 23 Fla. L. We��kly D2�20
(1�'la. 1 st �A Sop� 9, I 998�►.
� ���
�or th� reasvns �xpressed above �e approve the First �istrict's dr.eision in
,
��g± of �le�rr�v�te� �r,'�'��r��se l[�c�e. ��� l�tu� e _�3�9$�
ir� I99Z, �ir• RO�v� �vas iiijttTed wji�I� wark�ng as 8a �ir r.AAditiO�
tecl�iciaa� for the Cit�r, rn � 993, l�e bega'n ta r�ceive per�si�n b�ef�ts. Ls 1994, �
was �ccept�d es pe�ent�y a�d total�y'd�sabl�d and bega.n to rec,+�ive workers'
compensacion bers��ts atnd supplem�nta� b�ne,�ts.
His initi�l pension of�'s�t v�as calcular,�d using his individual A�v�V and
irt�luded suppl�rnent�l bet�f�, i'�e ���t was recalculated an�°tu�Ily to include
inc.reases u°s su�pple�rnental b�nef�ts. In 199'6, l�It. Rowc began to receive social
��cau��y d`uability ar� addi�on t� his oth�er;b�efrts. i1�F. R�vac concec�ed thc City
h�d th� r�g,ht to include suppletncntai b�enefits whcn initially calculating tbe o�set;
h�w+ever, h� assrrted that the Ci�g+ should nor �e allov�+e� tca incre�,�e Yhe of�ct
-'� 4
' �+.r,* . .�..r�- +.�r�.. �� +rri.. r��+�...�... v.. "��� .. �,... .. • +�r�
0
annu�ily to i�nclude increases iti supplemCnt�l benefrts, which were meant to be a
cost-of-living incre.�se fa�r pernlancatly aud totaliy disablad wor%ers,
The yCC held it was ptopar to recalculaRe thc offset �rnrnsua�ly to include
increases in supplerr�e.ttta2 bcn�f�ts. The First District re�rar,sed the JCC, Citing
�0.�ker v�. C`tv of Cle�rwat�, 23 F�a. L. '9Vcc1cly D 13i0 (FTa. I�t DCA �4ug. I 7,
1998�, and eetti�ed the same question p►r�sen�d tb�r�ir�. �..e �to�+�'e v. Citv vf
C�earwat�, 23 Fl�. L. VVeekly Y�2120 (Fla. I st I?C�i Sept�. 9, 1998�.
Far the �e�sons ex�ressed �bove, �re appr�ve the lE'irst District's decisi�a in
we. Nothat� in this op�ai�n should be r�ad to cha�ge the woTk�rs'
compeiisation ofiset under secrion 4�0.15(S). Florida �tatc�s (19�5). 'That offset
provision is di�'ere�t fro�n scction 440.20(15}, �porida Stat�tes (1985), because of
the f�der�l soci�l securit� offset provision�.
It is so erd�red.
��It�TCx, C.J., and SHA�d, W�L.S, �1NS1�D, P��@.IENTE and �,�WIS, JJ.,
CY)flGLlt.
h10T FINA% tJNTIL TIME EXP'IIt�S r0 FiL� It.�HEAR�NG M�TIO�t, �.ND Ii�
FILED, DY:'iE .
'���ee C�s�est �us�ti�,�
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�......�. .► .�v{I
Applicatior� fior Review of thc I3ecision of the DiStrict Coiat af Appeat - Certified
Great Public Itnparten,ce
F'trst District - Case Nos. 97-Z719, 97-2721 � 97-4270
H. George ICa�an, A�n.I�iarie Vernon, and EIG+�t B. Kula of,Miller, Ka�an, Itodtiguez
& Silv�r, V6d'est Paun Be�ch, Florid�; and I�Tancy A. L�witen a�d Ma�rk E. Hung�tc of
�owl�, �aite, �ri�Ien, Boggs,'4i7i lareal 8t �ank�r, P.�1., Ta�a�, Florida,
�O! P'CC�lOAGT
Christopher J. Smf�h �nd Wiiliatn H. Yang�r,lr. of Yanger � Ya�qg�er, �'ampa, Florid.�;
and �i�bard A. Sicking, Cara1 Gabies, �orida,
�or �tespvndent
I��rrick E. C�x of I�urley, Rogner, N�ill�r, Cox �c VVaranch, F.A,.. Orlanda, �Iarida,
fo� ��vatd �out�ty Ba�t�d o� Cc�unty Cvm�nissioners, Amicus Guriae
�Catrir�a I�, C�la�way, Se,aioc Attor�ey and �.dward A. �?ion, Gen�eral �Cou�nscl,
T�Uahesss�, Flvridaq
f� I�cpa�rtm.�ant oii,abor & E�pla�ylnent Secuaity, �aacvs Curia�e
lDgvic� A. McCrar+i� of McCranie c� %wer, P.�., Jack�o�vi11�, Fiorid�,
for Depa�a�trr�e�t of Ir�urence, �idision of Risk �ians�ett��, Aanic� Curi��
�.ie�rd Sicking, Cflral Gable�, Florida,
for C1�arvvate.r�i�e Fighters Assc�iation, Inc.� �W�1 ���Sy J.s��lii��ll41
.�ociagioa cr�Fir� Fi�rters, A��C�O, aud �Eo�ida �'r�ofa�.ssiQnnl Fire�ightcrs,
I�., intemati�nal Asr�ciation c�f �'ire �Fightass� �►�1I.-�IC�, Anucus Curiae
-16-
1: .
,
M�rk L. �ier�ti of Levq�, Su�ch, Scluupp�r & Stein, P.A., IV�'�i, Florida,
for F�vrida Work�ss' Advocates, �micus Curiae
_
� •'��
0
- i�
0
. . P71GE Z
6TH CASE oi L�v�l i printed in FOLL tozao,st. �
S?A?E OF EZ�PSD�► " I�LS/DIVZSZOM OF RIS1C ISAbAGEMENT, .
a,ppellar3t/Cro�s-�ppellee, v. J1�l�S SEVEFi,
A.ppellee/Croaa-]�pellant.
CASE NO. 1D98-4297
COURT OF APPF•11L OL' FLORIUA, FZRST DISTRICT
2000 Fli. app. I.F�CIS 1929
F'ebruary 2H, 2000, Opinion Filed
�TZCE: [+lj NOT FZNAL UNTIL T� EXPiRES TO FZI.E MOTION FOR RF.F�.ARING AND
SPOSITION THEREOF IF FII.ED
SOR KISTORY: lw appc�i from aca oxder entered by Judqe of Compensatioa Claims
.urea I,. Hainer.
SF�oSITZON: .�ffia�d i.n paxt and reveraed ia part.
�UNSEL: Joseph A. Bayliss of Hradha�m, Slevias, OquisC i Bayliss, P.A., St.
teraburq, fos A�pellaat/Cro�a-Appellee.
:�ca H_ Callan, Jr., of James ti. Callan, Jr., P.A., Clsa�,rater, for
:p�llee/Crosa-Appellan�t.
'DGBS: WEHSTER, KAHDi and PADOYAPIO, JJ. , CONCUR.
>�nox:
R CU'R�?AM.
�e find ao re�ersible error aa to eith�r of tl�e two isaues raised in tha main
paal but tire aqre� irith tha� claimaat's �rc�um+e�t .i.a the cross-appeal. The�
pleyer aad carx�ier should aot hatve been allos�red to offset tiie accrueeci
st-of-liviaq increases i.a '�he clai.m�nt' ��uppleaLental woxkera' caa�en�atioa
aeif�s azvd atate �.i.sability retise�ent benefits betsreea �ha time of the
;.i,sc�snt's di�abli.nq i.njuzy and the tim� af thc iaitial offset aalculation. See
at� Departmaat ot Yn�uraace v. 8atay, 1999 Fla. ?►�p. L�CIS 14333, 29 Fla. Latir
D 2957 (Fla. la� �CA 1�9�1 .�eca�rdiaqly, Mre ren�id tor zecnlculativa ai the
itia]. offaet to exclude an�y po�t-isajwry ca�t-og-living i.nereases to Yhe
aisxiant'a aupplemz.ntal benefit� [+2� aad retir�.cuent beaefits. Ia all other
spects the �ixia.l o�der of the judqe of coa�ezuation cS.aiin.s is affizmed.
Affirmed in part and rever�ed i.n part.
BSiER, KAFiN aAd PADOV7�iN0, JJ. , CONCUR.
F�E�E:���D
�,� R i .� 1000
�ISK ��IaNHGEti1E'ntT
, 1999 WL 979474, 24 Fla. L. Weekly D2467, State v. Hemy, (F1a.App. 1 Dist. 1999)
/
*979474 N4?'ICE: THIS OPINION HAS NOT
BEEN RELEASED FOR PliBLiC�TION (N THE
PERMANEI�tT LAW REFORTS. UNTIL
RELEASED, IT IS SUBJECT Tt� REVISION OR
WITHDRAWAL.
STATE ot Florida and Department of
[nsurance, Uivision of Risk ��ianagement,
Appellants,
v.
Richard ➢-IERNY, Appellee.
No. 9I-1$0.
District Caurt of Appeal of Florida,
First District.
Oct. 29, 1499.
State, as employer, sought revie�• of order af the
Judge of Compensation Claims, Donna S.
Remsynder, 1., determining applicability of offset5
against worl:ers' compensa[ion benefits based upon
claimant's receipt of in-line-of-duty disability
retirement and social securi�• disability benefits.
The District Court of ApF,eal, �Vebst�r, J., held
that: (1) offset could not tie recalculated to tal:e it�to
account increases in permanent total disabiliry
supplement�l benefits, and (2} he�lth insurance
subsidy received by claimant was not a collateral
ben�fit chac could be offset a�ainst workers'
eompensacion benet;ts to �a�hich ctaimant wouid
other���ise be entitled.
Affirmed; questions certified.
1. �'�'ORkERS' CO1�tPENS.�TIO\� 9U3
� 13 ----
413IX Amount and Period of Compensation
413IX(B) Compensation for Disabiliry
413IX(816 Deductions and Offsets
413k903 In general.
FIa.App. 1 Dist. 1999.
No post-injury cosc-of-living increases to collateral
benefits may be offsee against workers'
compensation Uenefits. F.S.1985, y§ 440.15(1)(e)1,
440.20(15).
Page 1
2. WORKERS' COMPENSATIONa 903
413 ----
413IX Amount and Period of �ampensation
413IX(B) Compcnsation for Disabitity
413IX(B)6 Deductions and Offsets
413k903 In general.
F1a.App. 1 Dist. 1999.
Monthly health insuranc� subsidy receiveci by
claimant a� a state retiree was not a collateral
benefit that could be offset against workers'
compensation benefits to which claimant would have
otherwise been endtled. West's F.S.A. § 112.363.
Robert C. Swain of Austin, I.�y, Roe, Patsko,
Swain �c Diaz, PA, St. Petersburg, for Appellants.
Nancy L, Cavey, St. Petersburg, for Appetlee.
WEBSTER, J.
**1 In this workers' compensation case, the S�ate
of Florida, as the employer, see�cs review of a ftnal
order deterrnining che appIicability of offsets against
workers' compensation benefits based upon the
clairnant's receipt of in-iine-of-ducy disabilin�
retirement and social securiry disability benefits.
The ernpl�yer argues that the judge of corn�ensation
claims erraneously held that (1) in-line-of-duty
disabilicy retirement and social s�curity disability
offsets were limited to the ir�itial b�nefit teceived by
the claimant, ezcluding any cost-of-living inereases;
and (?.) a he�lth insurance subsidy provided to state
retirees generally was not a collaterat ber.efit which
could be offset aeainst che workers' compensation
henefits to which the claimant would otherwise be
entitled. V�Je affirm. However, we also certify two
qvestions, which we believe to be of great public
importance, to the supreme court.
I,
The relevant faccs are not in dispute. The claimant
sustained a cornpensable injury on Septernber 9,
19�7. In December of I987, the ciaimant began
receiving monthly socia! security disability benefits
of $674.70. On November 17, 1488, the employer
began tak.ing an offset of $674,70 against temporary
benefits being paid to the claimant. On September
1, 1989, the claimant began receiving $565.31 per
Capyright �c) West Group �OOQ No claim to original U.S. Govt, works
1999 WL 979474, 24 Fla. T.. Weekly D2467, State v. Hemy, (F1a.App. 1 Dist, 1999) Pnge 2
month in in-line-of-duty disabiIity retirement
benefits. On July 1, 1990, [he claimant became
eligible for his first disabiliry retiremen[ cost-of-
living increase, and received funher increases in
each af the following years. The claimant also
received 536.27 per month as a health insurance
subsidy, which had been appropriated by the
legislature to help state retirees deal with incrcases
in health insurance prem�ums. The cla.imant was
accepted as germ�ently and totally disabled as of
May 4, 1992. The parties stipulated to an averag�
weelcly wage of $�433.70, with a corresponding
compensati�n rate of �289.13.
On April 7, 1998, the employer began taking
offsets for disability retirement and social security
disability benefits (including cost-of-living increases)
retroactive to January 1, 199�. The claimant
disagreed witYi the employer's calculacion of the
offset, and filed a petition seekin� a determination of
the proper offset.
The judge of compeiisacion ctaims heId that the
employer was entitled to offs�t anly the amouncs of
the initial payments of disabiliry retirement and
social securiry disability benefits, without che
inclusion of any cosc-of-living increases; and that the
emp(oyer was n�t permitted to recalculate the
amount of the offset in the future, to ta4:e into
account subsequent cost-of-living adjuscmen[s. She
hetd, furth�r, that che health insurance subsidy could
not be offset agains[ the claimant's workers'
compensation benefits. This appeal follows.
II.
[ 1) The employer areues that, pursuant to a correct
interpreta[ion of Escam.bia Counn• Sheriff's
Department ti�. Grice, 692 So.2d 896 (F1a.1997), it
is zntitled to offset against workers' compensation
benefits all collateral benefits being received by the
claimant at the time the workers' compensation
benetit is payable, including any cosc-of-living
inereases applicable ta the collateral benefits.
However, it candidly concedes tha[ chis court's
subsequent decisions ii� ,4cker v. Cin� of Cleanti�ater,
23 Fla. L. Weekly D 1970, ---So.2d ----, 1998 W L
47b16� (Fla. lst DCf� Aug.17, 199$), review
granted, 72i So.2d 903 (FIa.1999), and i[s progeny,
including Atdern►an v. Florida Plastering, 23 F1a.
L. Weekly D2578, --- So.�d ----, 1998 WL 798821
(Fla. lst DCA Nov.19, 1998), re��ietiv granted, 732
So.2d 32b (Fla.lg99), preclude such an argument.
Accordingly, it argues, instead, that tlie judgc of
compensation claims should have permitted it to
in�lude cost-of-living increases to the collateral
b�nefits which had accrued prior to the date as of
which it elected for the first time to ta�ce an offset.
Ir, fact, it contends that Acker appears to mandate
such a result.
'"'2 We conclude that our decisions in Acker and
Aldernwre svpport the d�cision of th� judge of
compensation claims. In Ack�r, we held that an
offset cnuld not be recalculated to take into accc�unt
increases in permanent t�tal disability sugplemental
benefits. The holding was based upon the
proposition [hat the iwtended purpose of
supplemental benefits is to provide a cost-of-living
adjt�scment to injured workers and, if recalculation
of the offsec to take such increases into account were
permitted, that purpose would be fnstrated. 23 Fla.
L. Weekly at I�1971, --- So.2d ----, 1998 WL
476168.
In Alderman, we made it cIear that the rationale of
Acker extended to cost-of-living increases to
collateral benefits:
One recalcutation of the offset is allowed as of
the date the claimant began receiving disabiliry
retir�ment benefits. Our decision in Hunt [ v.
Strazton, 677 5o.2d 64 (Fla. lst DCA 1996) j
prohibits recalculation of an offset based an any
cost-of-living increase in a particular benefit.
However, it daes not forbid recaiculation of an
e�isting offset when a claimant who has been
rec�iving one type af collateral benefit (e.g., social
security) later begins receiving yet another type of
benefit (e.g., disability retirement). Alderman
begara receiving social securiry benefits in 1990.
Then in I992, he be�an receiving disabiliry
retirecnent benefits in addition to his other benefits.
The .judg� should therefore order recalculation of
the offset one time, to ac�ount for the addition of
the new collateral b�nefit the claimant began
receiving in June of 1992. No further
recalculation is allowed for the cost of tiving (sicJ
increases.
23 Fla. L. Weekly at D2579, --- So.2d ----, 1998
WL 798821. The clear intent of our holding in
Alderman is to ensure that injured work�rs do not
suffer an erosian in the value of the benefits they
receive ty depriving them of the cost-of-living
increases believed necessary by government co
Copyright (c) West GrQUp 2000 No claim to original U.S. Govt. works
.. . .: ,:
. , . _
1999 tiVL 979474, 24 Fla. L. Weekly D2467, State v. Herny, (FIa.App. 1 Dist. 1999)
that terrn is used in Escambia County Sheri,�"s
Depanment v. Gricr, 692 So.2d 896, 898
(F1a.1997). See Dixon v. Pasadena Yacht dc
Country Club, 731 So.2d 141 (Fta. lst DCA 1999)
(social security retirement benefit� do not conscitute
a"collateral source" which may be offset against
workers' compensation benefits because they are not
disability benefits), review pending, Case No.
95,685 (Fla, filed May 27, 1999). Accordingly, we
affirm the decision of ¢he judge of compensation
claims declining to permit the retiree health
insurance subsidy to be included in the offset
calculation.
Pagc 4
IV.
*�4. For the foregoing reasons, the decision of the
judge of compensation claims is affirmed.
AFFIRMED.
BARFIELD, C.J. and BENTON, J., CONCUR.
FN# Because the claimant in this case was injured in
1987, the 1987 version of sections 440.20(15) and
440.15(1)(e)1, rather than the 1985 version,
applies. Howevec, the two are identical.
Copyright (c) West Graup 200U No claim to original U.S. Govt. works
.. � .%
� .. ,i,i� �
I�` - -
Trustees og the
Final Agenda Item #
w� Eanployees' Pension Plan
�genda C�ver Memora�d� ►tieeting Date: � . � • U(�
SUBJ�CT/RECOMII�EN DATION:
Approve Chapter 175 and Chapter 185 changes to the City of Clearwater Employees' Pension Plan and authorize
staff to proceed with ordinance r�vision.
� and that the apprapriate officials be authorized to execute same.
su��MARY:
The follawing chan�es for Firefighters dnd Police Officers are recommended:
1. Addition of an early retirement age of 50 and 10 with a 3% per year reduction cap;
2. AdditiQn of an age 55 and 10 norma) retirement age;
3. Addition of a normal form of benefit of life with a�0-year guarantee, unless the current normal form is a
greater value;
4. Deletion of the pre-exis�ing condition exclusior� for disability entitlement;
5. Limitation of the v►iorkers' compensat�on set off so that plan disability benefits are nat reduced be�ow the
greater of 2% for ea�h year of service or 42% of average monthly compensati�n calculated with a 2%
benefit rate;
6. Deletion of reassignment prcvisions for disability claimants and addition of provision that reassignments
must be to a similar job classification at no reduction in rank or pay;
7. Addition of presumptions for disability incurred in line of duty where claims are hased on certain
infectious diseases, hyperiension, heart disease, and tuberculosis;
8. Addition of optional forms of benefits for disability retirees vvith the normal form having a10-year
guarantee;
9. Addition of a 66 2/3% joint and survivor option;
10. Addition of forfeiture provisions for commissions of certain specified offenses that are breaches of the
public trust and wh�re an attempt is made to obtain a pension benefit by fraud, misrepresentation, or
faise statements;
11. Addition of buy back to give a member who terminates employment and withdraws his contributions an
opportunity, if reemployed, to buy prior service time by depositing contributions with interest within 90
days of reemployment;
i 2. Credited service must be �iven to a member who separates from service to go into activ� duty in the
military and is reemployed within Une year after discharge for up to 5 years of military service;
13. If a member's employment is terminated and his contributions remain in the plan and he is reemployed
within 5 years, his new service time will bridge to his prior service time.
Review�d by:
Legal NA
Budget NA
f'urchasing NA
Risk Mgmt N�
Submitted by:
Citv Manaeer
Info Tech NA
Public Works NA
DCM/ACM
Other NA
Frinted on recycled paper
Originating Dept:
Human Resources P%�
User Dept.
Attachments
❑ None
Costs
Funding Source:
Caplial Improvemenl
Operaling
Other
Appropriation Code:
Total
Current Fiscal Year
Rev. 2/98