QUAIL RIDGE AND AETNA CASUALTY AND SURETY CO., APPELLANTS,
v.
PHILLIP JOHNSON, APPELLEE

Fla. 1st DCA | 1991-08-15
No. 90-2598
WIGGINTON and KAHN, JJ., concur.
584 So. 2d 199 Florida District Court of Appeal, First District (1991) Caution
Cited by 8 cases

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Synopsis

In this workers' compensation case, the court held that the social security disability setoff provision in Florida Statutes § 440.15(9) is mandatory and self-executing, allowing an employer/carrier to unilaterally reduce permanent total disability benefits by the amount of social security benefits without first obtaining a modification order from the judge of compensation claims.


Holding

The social security setoff provision in § 440.15(9) is mandatory and self-executing, and the employer/carrier may take the setoff administratively without a modification proceeding. However, the claimant may seek review of the amount of the setoff if the employer/carrier miscalculates it.


Headnotes

[1] A social security disability setoff provision in workers' compensation law is mandatory and self-executing.

[2] An employer or carrier may unilaterally apply a social security disability setoff without a modification order from the judge of compensation claims.

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Key Quotes

“the setoff provision in section 440.15(9) is self-executing in nature and therefore, can be taken unilaterally by the employer.”

Establishes the core holding that the social security setoff is mandatory and does not require a modification proceeding or judge approval.

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Facts & Procedural History

Claimant suffered a compensable work injury on June 8, 1979, and received temporary total disability benefits until March 1986. At a November 1986 hea…

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Opinion of the Court
JOANOS, Chief Judge.

JOANOS, Chief Judge.

The employer and carrier in this workers’ compensation case appeal an order of the judge of compensation claims denying unilateral application of a social security disability setoff. Employer and carrier contend the setoff provision of section 440.-15(9), Florida Statutes, is mandatory and self-executing, and authorizes employer/carrier to take a unilateral setoff for social security benefits. We agree, and reverse the order enforcing the full amount of the permanent total disability award.

Claimant suffered a compensable injury on June 8, 1979, and received temporary total disability benefits through March 7, 1986, the maximum period of temporary total disability benefits provided by statute. The claim for permanent total disability benefits was heard November 11, 1986. Prior to the hearing, employer/carrier obtained the necessary documents from the claimant authorizing release of claimant’s social security records.

Thus, at the time of the hearing, employer/carrier were fully cognizant that claimant had been receiving social security disability benefits since December 1979, but did not raise the question of entitlement to a social security setoff at the hearing. In an order dated December 12, 1986, employer/carrier were directed to pay permanent total disability benefits in the amount of $130 per week, commencing March 8, 1986. Instead of paying the full $130 weekly pursuant to the order, employer/carrier unilaterally setoff claimant’s social security disability benefits against the workers’ compensation permanent total disability award, resulting in a bi-weekly payment of $30.77 for the permanent total disability award.

Claimant filed a claim to enforce the full amount of the 1986 compensation award. Employer/carrier defended on the ground that the social security setoff was taken properly in accordance with section 440.-15(10) [now (9)], Florida Statutes (Supp. 1978).

At the hearing, claimant’s counsel argued that the setoff issue should have been raised in the 1986 hearing to determine claimant’s entitlement to permanent total disability benefits. The employer/carrier maintained the setoff is self-executing and can be taken unilaterally. The judge of compensation claims found that without a modification order, employer/carrier were without authority to reduce claimant’s permanent total disability payments, and granted the claim for enforcement of the 1986 compensation order. The section 440.15(9)(a) [formerly subsection (10)(a) ] social security offset is mandatory, if the combined workers’ compensation and social security benefits exceed eighty percent of the worker’s salary. Department of Public Health v. Wilcox, 543 So. 2d 1253 (Fla.1989).

It is the employer’s responsibility to determine the applicability of the reduction. Once determined, the offset may be taken administratively by an employer/carrier, and need not be determined by the judge of compensation claims in a modification proceeding. The supreme court recognized that a modification proceeding would insure against an employer’s possible miscalculation of the amount of the setoff, but concluded that this possible benefit to the employee would not outweigh the additional expense and delay it would impose upon the employer. 543 So. 2d at 1255-1256. The court held that “the setoff provision in section 440.15(9) is self-executing in nature and therefore, can be taken unilaterally by the employer.” 543 So. 2d at 1256.

In this case, employer/carrier requested and obtained information from the Social Security Administration concerning social security disability benefits being received by claimant and his dependents. Although employer/carrier were in possession of this information at the time of the hearing for permanent total disability benefits, it was not raised as an issue in the proceeding. Under the Wilcox decision claimant may seek review of the amount of the setoff, but employer/carrier were not required to obtain an order from the judge before taking the setoff.

Accordingly, the order granting enforcement of the compensation order dated December 12, 1986, together with interest and penalties, is reversed and remanded for further proceedings.

WIGGINTON and KAHN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Santos v. K-Mart & KM Admin. Servs., 629 So. 2d 1071 (Fla. 1st DCA 1994)
    …uested only $57.25 per week, a lesser amount, the claim was therefore moot. We disagree. Although employers may take social security offsets administratively, Department of Public Health v. Wilcox, 543 So. 2d 1253 (Fla.1989); Quail Ridge v. Johnson, 584 So. 2d 199 (Fla. 1st DCA 1991), review by the JCC is always available to the employee. Wilcox. It is this review which Santos asserts he sought below. The employer carries the burden, if raised by a claimant as an issue for hearing, to prove that a social se…
  • Von Burks v. Day's Harvesting, Inc., 597 So. 2d 858 (Fla. 1st DCA 1992)
    …and work experience, engage in any other kind of substantial gainful work which exists in the national economy.... . We have previously held that the E/C’s right to the offset is self-executing and can be taken unilaterally. Quail Ridge v. Johnson, 584 So. 2d 199 (Fla. 1st DCA 1991). This obviously does not prevent the prudent E/C from seeking approval of the JCC prior to effectuating the reduction. . 42 U.S.C. § 424a(d) provides that "reduction of benefits required by this section shall not be made if the…
  • Horton v. Martin Mem'l Hosp. & Sedgwick James, 610 So. 2d 1352 (Fla. 1st DCA 1992)
    …address whether an employer may apply a social security offset to past-due benefits. On the contrary, the court did note that an offset can be taken only prospectively. We likewise reject Employer and Carrier’s argument that Quail Ridge v. Johnson, 584 So. 2d 199 (Fla. 1st DCA 1991), holds that an employer and carrier may apply a social security offset to past-due benefits. Like Wilcox, the Quail Ridge opinion addressed only the question of whether an employer and carrier may uni [*1356] laterally apply a so…

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