JAIME SOSA, APPELLANT/CROSS-APPELLEE,
v.
JERNIGAN TRUCKING COMPANY AND FIDELITY & CASUALTY OF NEW YORK, APPELLEES/CROSS-APPELLANTS
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In a workers' compensation case, the Florida District Court of Appeal affirmed a deputy commissioner's order allowing the employer/carrier to recover past overpayments resulting from an incorrect calculation of the claimant's average weekly wage, and rejected the carrier's cross-appeal seeking an offset for social security disability benefits.
The court affirmed both the deputy's determination allowing recovery of overpayments and the calculation of average weekly wage without a social security offset, finding competent and substantial evidence supporting the deputy's determinations and a reasonable basis for the overpayment despite the carrier's initial inability to access the claimant's wage records.
[1] An employer/carrier may recover past overpayments of compensation when the overpayment was based on an incorrect average weekly wage and a reasonable basis for the overpa…
[2] A reasonable basis for an overpayment of compensation exists when the employer/carrier lacks the means to ascertain the claimant's correct average weekly wage without res…
Previewing 2 of 3 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“any overpayment of compensation to a claimant is presumed a gratuity in the absence of a finding that a reasonable basis exists for such overpayment”
Establishes the legal standard for overpayments in workers' compensation cases, citing Belam Florida Corporation v. Dardy
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceClaimant Sosa, an owner/operator of a tractor-trailer purchased under a retail installment contract, sustained an injury on March 22, 1979. He claimed…
The full statement of facts, procedural history, and disposition for this case are member content.
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ERVIN, Chief Judge.
Claimant appeals an order of the deputy commissioner permitting the employer/carrier (e/c) to recover in the future past overpayments of compensation based on an incorrect average weekly wage. The e/c in turn cross-appeals the deputy’s calculation of the average weekly wage caused by his alleged failure to grant its request for an offset by reason of the claimant’s receipt of social security disability payments. As to both appeals we affirm, finding competent, substantial evidence supporting the deputy’s determinations. In addressing the point raised by claimant, we observe that he relies upon our opinion in Belam Florida Corporation v. Dardy, 397 So. 2d 756 (Fla. 1st DCA 1981), holding that any overpayment of compensation to a claimant is presumed a gratuity in the absence of a finding that a reasonable basis exists for such overpayment. Although the deputy’s order did not specifically explicate a reasonable basis for the overpayment, such basis clearly appears in the record due to the rather unusual method of calculating claimant’s average weekly wage.
Claimant was the owner/operator of a tractor trailer which had been purchased pursuant to a retail installment contract and security agreement. At the time claimant sustained his injury on March 22, 1979, he had asserted up to the time of the hearing that his average weekly wage for the thirteen weeks preceding the injury was $792.83. Based upon this assertion the claimant was paid compensation benefits at the maximum compensation rate of $130 per week until May 4, 1983. At the hearing, the deputy determined that claimant’s average weekly wage was in fact $124.07, resulting in a corrected compensation rate of $74.44. This finding has not been appealed by the claimant. The average weekly wage in turn was calculated by determining claimant’s gross receipts, less deductions for thirteen weeks prior to the injury; to which sum was added an increase in equity in the tractor (payments toward the principal amount of a loan on the tractor/trailer), less expenses for the operation of the tractor for the thirteen weeks prior to the injury, upon which sum the average weekly wage was determined.
The e/c had no available means in its possession for calculating claimant’s average weekly wage without resort to claimant's records, which were not furnished to it until shortly before the hearing. Its difficulty in ascertaining claimant’s correct wages accordingly affords a reasonable basis for the deputy’s determination that the carrier should be permitted to reduce future payments to $37.22, or one-half the proper compensation rate until the past overpayments were recovered.
Affirmed.
JOANOS and NIMMONS, JJ., concur.
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Strickland v. Neil's Painting & Travelers Ins. Co., 545 So. 2d 333 (Fla. 1st DCA 1989)…lower than that of the E/C is not alone a sufficient basis for permitting the E/C to recover overpayments; the DC must find a reasonable basis for the overpayments or a reasonable basis must be evident from the record. Sosa v. Jernigan Trucking Co., 454 So. 2d 65 (Fla. 1st DCA 1984). Generally an overpayment in workers’ compensation is presumed a gratuity unless a reasonable basis exists for such overpayment. Pardo v. Sun Supermarket, 510 So. 2d 1244 (Fla. 1st DCA 1987). The E/C rely on Sosa for the proposi…
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Pardo v. SUN Supermarket & Crawford & Co., 510 So. 2d 1244 (Fla. 1st DCA 1987)…lant’s accident. Based on these findings, the deputy commissioner denied the claim. An overpayment of compensation is presumed a gratuity in the absence of a finding that a reasonable basis exists for the overpayment. Sosa v. Jernigan Trucking Co., 454 So. 2d 65 (Fla. 1st DCA 1984). Belam Florida Corp. v. Dardy, 397 So. 2d 756 (Fla. 1st DCA 1981). The deputy commissioner did not make a finding as to whether there was a reasonable basis for [*1246] the overpayment based on the incorrect average weekly wage,…
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Tradewinds Mfg. Co. & Fuqua Indus., Inc. v. COX, 541 So. 2d 667 (Fla. 1st DCA 1989)…d levy, execution or attachment on the claimant’s benefits. Although an overpayment is presumed to be a gratuity, this presumption can be overcome by e/c’s showing that there was a reasonable basis for the overpayment. Sosa v. Jernigan Trucking Co., 454 So. 2d 65 (Fla. 1st DCA 1984). Reasonable bases for overpayment have included clerical error, Marrero v. F.P.A. Corp., 511 So. 2d 1008 (Fla. 1st DCA 1987), and incorrect calculation of average weekly wage due to claimant’s late filing of wage records, Sosa, s…
Authorities Cited
- Belam v. Dardy, 397 So. 2d 756 (Fla. 1st DCA 1981)