CITY OF TAMPA, APPELLANT,
v.
DAVID A. BARTLEY, APPELLEE
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The City of Tampa appeals a worker's compensation award for firefighter David Bartley, challenging both the inclusion of pension contributions in calculating average weekly wage and the 45% disability finding. The court affirms the disability determination but reverses in part on the wage calculation, requiring the deputy commissioner to allocate only the vested line-of-duty disability benefit portion of pension contributions to average weekly wage.
The court held that only the portion of pension contributions attributable to vested line-of-duty disability benefits (treated like health/accident insurance premiums) should be included in average weekly wage calculations. The nonvested longevity retirement and nonservice-connected disability benefits should be excluded. The 45% disability finding was affirmed as sufficiently supported by evidence of work search efforts and proper consideration of post-injury earnings.
[1] Employer contributions to a pension plan that provide for vested, tangible benefits of present-day value are includable in the computation of an employee's average weekly…
[2] Employer contributions to a pension plan that provide for future longevity retirement benefits or benefits for non-service connected injuries are not considered vested an…
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Join FLexlaw to unlock all legal intelligence“we agree with the deputy commissioner's conclusion that under this provision the claimant received a vested interest, a tangible benefit of real present-day value by virtue of the employer's contributions for this purpose”
Establishes the test for including pension contributions in average weekly wage: they must constitute a vested, tangible benefit of real present-day value
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Join FLexlaw to unlock all legal intelligenceDavid Bartley, a Tampa police officer, sustained a line-of-duty injury that rendered him unable to perform his regular duties. He became entitled to d…
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LARRY G. SMITH, Judge.
The City of Tampa appeals a worker’s compensation award on the grounds (1) the deputy commissioner erred in including certain employer’s pension contributions in computation of claimant’s average weekly wage, (2) and erred in his finding of a 45% disability based upon loss of wage earning capacity. We affirm in part, and reverse in part.
In computing the claimant’s average weekly wage, the deputy commissioner included the sum of $126.00 paid weekly by the City of Tampa, for the benefit of the claimant, pursuant to the terms and provisions of the City of Tampa Firefighters and Police Officers Pension Contract. Under Subsection 7(b) of the agreement, the employee is entitled to receive a disability benefit upon the occurrence of an injury which physically or mentally permanently incapacitates him from performing continuously the regular duties of a police officer. The injuries sustained by the claimant in his line of duty accident were such that he became entitled to benefits under this provision.
We agree with the deputy commissioner’s conclusion that under this provision the claimant received a vested interest, a tangible benefit of real present-day value by virtue of the employer’s contributions for this purpose.
However, the weekly contribution of $126.00 also provides the funding for a longevity retirement benefit, for employees reaching the age of forty-six years with at least twenty years service with the Department (Subsection 7(a) of the agreement), and disability benefits for any nonservice connected injury, disease or disability, provided the employee has served at least ten years with the Department (Subsection 7(c) of the agreement).
We agree with the appellant’s contention that these latter benefits, the longevity retirement benefit and the nonservice connected injury, disease or disability benefits, are not “vested,” and therefore do not meet the test of “tangible benefit of a real present-day value,” under State, Dept. of Health & Rehab. Services v. Ryan, 381 So. 2d 269 (Fla.App.1980).
We reject appellee’s contention that the recent cases, Florida Sheriffs Ass’n v. Dept. of Admin., 408 So. 2d 1033 (Fla.1981), and City of Tallahassee v. Pub. Emp. Rel. Com., 410 So. 2d 487 (Fla.1981), call for a different result.
That portion of the pension contributions which provide for claimant’s line of duty disability benefits would be includable in computation of average weekly wage in the same manner as premiums paid by the employer for an employee’s group health or accident insurance coverage. See Jess Parrish Memorial Hospital v. Ansell, 390 So. 2d 1201 (Fla. 1st DC A 1980); Agrico Chemical Company v. Laws, 384 So. 2d 722 (Fla. 1st DCA 1980). Therefore, on remand, the deputy commissioner must determine what portion of the $126.00 weekly benefit is allocable to this category of disability benefits.
We affirm the deputy commissioner’s findings and conclusions with respect to the claimant’s wage earning capacity loss except, however, to the extent that a recalculation of the claimant’s average weekly wage may affect the percentage of his wage earning capacity disability.
We conclude that the rationale utilized by the dep uty commissioner in determining claimant’s disability is sufficiently clear to enable judicial review.
The evidence of claimant’s work search was adequate to support the findings of the deputy commissioner despite the fact, as the deputy commissioner recognized, the claimant has been somewhat “picky” about the jobs he has sought. The credibility and sufficiency of evidence to establish a good faith work search is a factual matter to be determined by the deputy. Pearson v. City of Miami Beach, 399 So. 2d 1135, 1136 (Fla. 1st DCA 1981).
We conclude also that it was proper for the deputy commissioner to consider claimant’s post-injury earnings in his determination of wage earning capacity. Kemp v. Miami Quality Concrete Co. Inc., 410 So. 2d 199 (Fla. 1st DCA 1982).
Reversed and remanded for further proceedings consistent with this opinion.
MILLS and SHAW, JJ., concur.
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Dell Smith v. Sunland Training Ctr. & Div. of Risk Mgmt., 455 So. 2d 1088 (Fla. 1st DCA 1984)…e been construed to include vested pension or retirement benefits, see Buckhalter v. University of Florida, 411 So. 2d 1327 (Fla. 1st DCA 1982), and Reese v. Sewell Hardware Co., 407 So. 2d 965 (Fla. 1st DCA 1981). See also City of Tampa v. Bartley, 413 So. 2d 1280 (Fla. 1st DCA 1982); Sunland Training Center v. Irving, 384 So. 2d 745 (Fla. 1st DCA 1980); Department of Health and Rehabilitative Services v. Ryan, 381 So. 2d 269 (Fla. 1st DCA 1980); and Sunland Training Center v. Thomas, IRC 2-3917 (1979). None…
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C. F. Mueller & the Hartford Ins. Grp. v. Searcy, 418 So. 2d 397 (Fla. 1st DCA 1982)…ysical limitations. Unless unsupported by competent substantial evidence, the credibility and sufficiency of this finding are factual determinations to be made by the deputy commissioner and will not be disturbed on appeal. City of Tampa v. Bartley, 413 So. 2d 1280 (Fla.App. 1st DCA 1982). [*399] In Fleshe v. Interstate Warehouse, 411 So. 2d 919 (Fla. 1st DCA 1982), we held that a modification based on change in earning capacity is contemplated by section 440.28, Florida Statutes, and that such a change may be…
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Hyatt Hotel & Alexsis Risk Mgmt. v. Lalu, 638 So. 2d 111 (Fla. 1st DCA 1994)…duct a valid and good faith job search from December 24, 1990 through April 28, 1991.” “The credibility and sufficiency of evidence to establish a good faith work search is a factual matter to be determined by the [JCC].” City of Tampa v. Bartley, 413 So. 2d 1280, 1282 (Fla. 1st DCA 1982). The JCC should look at all the circumstances, including “actual physical impairment, age, industrial history, training and education, motivation, work experience, work record, diligence and the like.” Paramount Poultry v.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Tallahassee v. Pub. Emps. Relations Comm'n, 410 So. 2d 487 (Fla. 1981)
- Fla. Sheriffs Ass'n v. Dep't OF Admin., 408 So. 2d 1033 (Fla. 1981)
- Agrico Chem. Co. & Underwriters Adjusting Co. v. Garlie Lincoln Laws, 384 So. 2d 722 (Fla. 1st DCA 1980)
- State v. Ryan, 381 So. 2d 269 (Fla. 1st DCA 1980)
- Jess Parrish Mem'l Hosp. & All Risk Corp. of Fla. v. Ansell, 390 So. 2d 1201 (Fla. 1st DCA 1980)
- Pearson v. City OF Miami Beach & Risk Mgmt. Servs., Inc., 399 So. 2d 1135 (Fla. 1st DCA 1981)
- Kemp v. Miami Quality Concrete Co., Inc., 410 So. 2d 199 (Fla. 1st DCA 1982)