CHARLES A. REESE, APPELLANT,
v.
SEWELL HARDWARE COMPANY, INC., AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLEES
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In this workers' compensation appeal, the court reversed a deputy commissioner's denial of Reese's request for an increased compensation rate and penalties. The court held that the carrier's reduction of benefits due to alleged overpayments violated the mandatory statutory requirement that 60% of average weekly wages be paid during temporary total disability, and that penalties must be assessed for the carrier's failure to make timely payments at the proper rate.
The court held that the compensation rate must be increased pursuant to the mandatory language of Section 440.15(2)(a) requiring 60% of average weekly wages be paid during temporary total disability, and that penalties must be assessed because the record contains no evidence excusing the carrier's failure to make timely payments at the proper rate.
[1] Worker's compensation benefits include employer-paid insurance premiums when calculating the average weekly wage.
[2] Worker's compensation benefits include vested pension benefits when calculating the average weekly wage.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“60 percent of the average weekly wages shall be paid to the employee during the period of temporary total disability”
Establishes the mandatory statutory requirement that forms the basis for reversing the denial of the increased compensation rate.
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Join FLexlaw to unlock all legal intelligenceReese received temporary total disability compensation from the carrier for several months. The carrier then reduced compensation payments, claiming t…
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SHIVERS, Judge.
Reese, claimant in this worker’s compensation action, appeals a deputy commissioner’s order which denied his requests for an increase in his compensation rate and for penalties on past due compensation. We reverse on both points.
After paying Reese temporary total disability for a number of months, the carrier began reducing the amount of compensation to reimburse itself for alleged overpay-ments. This overage had occurred, the carrier stated, because the employer was continuing to pay group insurance premiums on Reese’s behalf, resulting in a duplication of benefits.
Reese then filed a request for an increase in his compensation rate, arguing that the insurance premiums should be included in determining the rate. Reese also argued that his vested pension benefits should be included, and he sought appropriate penalties. The deputy correctly determined that both the insurance premiums and the pension benefits should be included in Reese’s average weekly wage. On appeal, the carrier does not dispute this finding. However, the deputy concluded that the compensation rate should not be increased by the insurance payments. He also held that no penalties should be assessed.
The ruling on Reese’s compensation rate must be reversed because of the mandatory language of Section 440.15(2)(a), Florida Statutes (1977) that “60 percent of the average weekly wages shall be paid to the employee” during the period of temporary total disability. The carrier has not directed us to any authority which would empower a deputy to fashion the remedy ordered in this case.
We must also reverse on the issue of penalties because the record contains no evidence to excuse the carrier’s failure to make timely payments at the proper compensation rate. At hearing, the carrier did not dispute its failure to pay appropriate compensation based upon Reese’s pension benefits; instead, the carrier’s attorney informed the deputy, and now represents to this court, that the pension calculations were so complicated that it required a delay of two years to determine the compensation rate. On remand, the deputy is instructed to compute and award the appropriate penalty for the carrier’s failure to timely pay compensations based upon the pension benefits. In light of this opinion, the deputy should consider whether the carrier’s failure to pay benefits based on the insurance premiums was excusable and, if not, he should award an appropriate penalty.
Accordingly, this cause is reversed and remanded.
ROBERT P. SMITH, Jr., C. J., and MILLS, J., concur.
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Belle v. Gen. Elec. Co. & Elec. Mut. Liab. Ins. Co., 409 So. 2d 182 (Fla. 1st DCA 1982)
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Buckhalter v. Univ. OF Fla. & Div. of Risk Mgmt., 411 So. 2d 1327 (Fla. 1st DCA 1982)…the value of the uniform allowance. We agree with the claimant that because his retirement benefits had vested he was entitled to have the value of those contributions considered in determining his average weekly wage. Reese v. Sewell Hardware Co., 407 So. 2d 965, 6 F.L.W. 2557 (Fla. 1st DCA, Case No. AB-71, Dec. 9, 1981); Sunland v. Thomas, IRC Order 2-3917 (1979), cert. denied, 389 So. 2d 1113 (Fla.1980). However, the employer/carrier correctly states that no evidence of the value of the uniform service wa…
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Constanzer v. STA Rite & the Travelers Ins. Co., 432 So. 2d 775 (Fla. 1st DCA 1983)…nce premiums with full knowledge that such acceptance would reduce his otherwise available cash benefits. Compare Daoud v. Matz, 73 So. 2d 51 (Fla.1954); Rucks Bros. Dairy v. Howard, 410 So. 2d 1353 (Fla. 1st DCA 1982); Reese v. Sewell Hardware Co., 407 So. 2d 965 (Fla. 1st DCA 1981); St. Vincent DePaul Society and Insurance Co. of North America v. William J. Smith and The Division of Worker’s Compensation, 8 FLW 1318 (Fla. 1st DCA, May 9, 1983). We remand for entry of an appropriate order consistent herewith…
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