McConnaughhay, Coonrod, Pope, Weaver, Stern & Thomas, P.A.

City of Hollywood v. Lombardi

24 FLW D1848

Sections 440.20(7) and (9), Florida Statutes (1993) provide for the award of penalties and interest on any installment of compensation not paid within fourteen days from the date when it is due. In this instance, benefits were not timely paid and accordingly, the JCC's award of penalties and interest affirmed. Claimant recovered benefits from a third party tortfeasor and it was determined that the workers' compensation carrier had a 25% lien on past benefits paid and future benefits payable. The employer/carrier attempted to cap the claimant's workers' compensation benefits and other disability compensation at the claimant's average weekly wage level pursuant to Escambia County Sheriff's Department v. Grice, 692 So.2d 896 (Fla. 1997). Court determined that Grice offset would be calculated after the 25% lien reduction was made. In other words, the Grice offset would not first be applied and then the 25% lien reduction taken. The lien reduction would be taken before the Grice offset is taken. Question certified to Florida Supreme Court. Court determined that Grice offset cannot be applied retroactively. Court declined to consider employer/carrier's issue concerning entitlement to attorney fees and costs because the issue was not ripe for appeal. The JCC reserved jurisdiction to determine the amount of the attorney fee. Question considered by court was the amount or cap that an employer/carrier can receive in reducing workers' compensation benefits payable to the claimant in satisfaction of its third party lien pursuant to Section 440.39(3)(a). Employer/carrier argued that they were entitled to receive in offsets sums equal to the net amount received by the claimant in the third party action. Court rejected this argument and determined that the cap for employer/carrier recovery in the third party action was the percentage of recovery of the net proceeds received by the claimant. Court determined that workers' compensation carrier's lien was 25%. Claimant netted approximately $60,000 in the third party action after attorney fees and costs were deducted. Court determined that the cap of the workers' compensation lien was 25% of the $60,000 net received as opposed to the $60,000 net amount received by the claimant in the third party action. Question certified to Florida Supreme Court. Claimant's disability pension plan provided that the employer was allowed to reduce disability pension benefits payable by amounts of workers' compensation benefits paid. Since such a provision in the disability policy was in existence, the employer should be required to pay full workers' compensation benefits and thereafter apply any offset allowed under the Grice decision against claimant's disability retirement pension benefits. If no such provision exists, the judge of compensation claims should consider Section 440.21(1) and the claimant's prorata contributions to the disability retirement plan in determining any offset against workers' compensation benefits.

Cases

Workers' Compensation

City of Hollywood v. Lombardi