COLONEL'S TABLE AND ZURICH-AMERICAN INSURANCE CO., APPELLANTS,
v.
DOROTHY T. MALENA, APPELLEE

Fla. 1st DCA | 1982-04-07
No. AD-474
ERVIN and SHIVERS, JJ., concur.
412 So. 2d 64 Florida District Court of Appeal, First District (1982) Negative Treatment
Cited by 18 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this workers' compensation case, the Florida appellate court affirmed an order requiring an employer/carrier to continue permanent total disability payments to an injured worker and repay previously withheld benefits. The court held that an employer cannot take a statutory offset for social security benefits without first presenting evidence establishing the amount of the offset that would be permitted under federal law.


Holding

The court held that an employer/carrier may not take a statutory offset under § 440.15(10)(a) without presenting evidence establishing that the offset is warranted and will not reduce benefits to a greater extent than they would have been reduced under federal social security law. The claimant remains entitled to the $20 per week minimum compensation provision regardless of any offset. The employer/carrier bears the burden of proving the appropriateness and applicability of the offset as an affirmative defense.


Headnotes

[1] An employer/carrier bears the burden of proving the appropriateness and applicability of a statutory offset for social security benefits against workers' compensation pay…

[2] A statutory offset for social security benefits against workers' compensation is impermissible in the absence of evidence that it is warranted and will not reduce benefit…

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Key Quotes

“this provision shall not operate to reduce an injured worker's benefits under this Chapter to a greater extent than they would have otherwise been reduced”

The statutory language of § 440.15(10)(a) limiting the scope of the offset to what federal law would permit

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Facts & Procedural History

The employer/carrier accepted the claimant as permanently and totally disabled from an industrial injury and commenced compensation payments based on …

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Opinion of the Court
WENTWORTH, Judge.

WENTWORTH, Judge.

Employer/carrier appeals a workers’ compensation order entered by deputy commissioner Hand, by which employer/carrier was ordered to continue permanent total disability payments and to repay claimant for a prior offset. We affirm.

Employer/carrier accepted claimant as permanently and totally disabled as a result of an industrial injury, and accordingly commenced such compensation payments. Claimant’s average weekly wage had been determined as $73. Claimant is receiving social security benefits (for both herself and her minor daughter) in excess of this weekly amount. Employer/carrier discontinued compensation payments, contending that they were entitled to do so pursuant to the § 440.15(10)(a) offset provision. A hearing was held on the issue of employer/carrier’s entitlement to take such an offset. Neither party presented any evidence as to the amount of offset which could otherwise be taken by the Social Security Administration pursuant to 42 U.S.C. § 424a; however, claimant did present evidence of unsuccessful efforts to obtain a determination of such amount from the social security administration. The deputy commissioner held that, regardless of the offset, claimant is entitled to the $20 per week minimum compensation provision of § 440.12(2). The deputy further held that employer/carrier’s failure to establish the amount of offset which could otherwise be taken by the social security administration precludes the employer/carrier from making the statutory offset until such information is provided.

Section 440.15(10)(a) provides that “this provision shall not operate to reduce an injured worker’s benefits under this Chapter to a greater extent than they would have otherwise been reduced” by the federal social security administration. The statutory offset may be taken administratively, and is not dependent on the order of a deputy commissioner. Cf., Department of Transportation v. Lindsey, 383 So. 2d 956 (Fla. 1st DCA 1980). However, the offset should not be permitted in the absence of evidence that it is warranted. See Thomas v. Sunland Training Center, 408 So. 2d 685 (Fla. 1st DCA 1982); also see Town Drug Inc. v. Maples, IRC Order 2-3389 (4/5/78).

Section 440.15(10)(c) requires an employee, upon demand by the employer or carrier, to authorize the social security administration to release disability information; the statute further provides that compensation may be suspended if the claimant refuses to authorize the release of such information. Thus employer/carrier is accordingly on equal footing with claimant in obtaining disability information from the social security administration. Since the § 440.15(10)(a) offset provision is a defense to the payment of compensation otherwise due, the burden of proving its appropriateness and applicability would appear to be one which employer/carrier must bear. As Thomas indicates, the offset may not be permitted in the absence of evidence that it is warranted. Accordingly, employer/carrier’s failure in the present case to present any evidence indicating that the offset would not “reduce ... benefits ... to a greater extent than they would have otherwise been reduced” under the social security laws should render the offset impermissible at this time. Construing the deputy’s order to so provide, there has been no error in this regard. Employer/carrier remains free to administratively make such statutory offset when it obtains the pertinent information.

The order is accordingly affirmed.

ERVIN and SHIVERS, JJ., concur.


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Citator

Cited By

  • ACE Disposal & Fla. Air Condition Contractors v. Holley, 668 So. 2d 645 (Fla. 1st DCA 1996)
    …t ease does not involve the social security offset. Had the E/C sought to actually take such an offset, “the burden of proving its appropriateness and applicability would appear to be one which employer/carrier must bear.” Colonel’s Table v. Malena, 412 So. 2d 64, 66 (Fla. 1st DCA 1982). The issue posed by the statute now before us is whether the E/C may suspend PTD benefits pending claimant’s application for social security disability. We are simply unable to say whether an offset issue may arise in the fut…
  • Dep't of Pub. Health v. Wilcox, 543 So. 2d 1253 (Fla. 1989)
    …PER CURIAM. We have for review Department of Public Health v. Wilcox, 504 So. 2d 444 (Fla. 3rd DCA 1987), based on certified conflict with Colonel’s Table v. Malena, 412 So. 2d 64 (Fla. 1st DCA 1982). We have jurisdiction. Art. Y, § 3(b)(4), Fla. Const. We quash the decision below and remand for further proceedings consistent with this opinion. In a worker’s compensation proceeding, the respondent, Muriel Wilcox, was awarded…
    1 / 2
  • PAN Am. Bank & C.L.A.S. v. Glinski, 584 So. 2d 52 (Fla. 1st DCA 1991)
    …al month of entitlement to social security benefits and whether the social security benefits had already been offset by the Social Security Administration itself. Therefore, the order comports with this court’s decision in Colonel’s Table v. Molena, 412 So. 2d 64 (Fla. 1st DCA 1982). In that case, the employer and carrier accepted the claimant as permanently and totally disabled but discontinued compensation payments, contending that they were entitled to do so because the claimant was receiving social secur…

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