CITY OF MIAMI, APPELLANT,
v.
RICHARD MCLEAN, APPELLEE
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The City of Miami appealed a workers' compensation award to employee Richard McLean, challenging the retroactive application of Barragan v. City of Miami and the award of costs and penalties under section 440.20. The First District Court of Appeal affirmed the award while certifying a question of great public importance regarding whether Barragan-related benefit increases constitute 'compensation' for penalty purposes.
Barragan applies retroactively to July 1, 1973. Penalties and costs were properly awarded even though not mentioned in the pretrial questionnaire, as they were specifically requested in the claim for benefits and memorandum of law. The court affirmed the penalty award but certified to the Florida Supreme Court the question of whether such benefit increases constitute 'compensation' under section 440.20.
[1] Barragan v. …
[2] Penalties and costs may be awarded even if not specifically mentioned in a pretrial questionnaire, provided they are requested in the claim for benefits or a related memo…
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Join FLexlaw to unlock all legal intelligence“Consistent with our holdings in City of Miami v. Burnett, 596 So.2d 478 (Fla. 1st DCA 1992), and City of Daytona Beach v. Amsel, 585 So.2d 1044 (Fla. 1st DCA1991), we hold that Barragan has retroactive application to July 1, 1973.”
Establishes the court's holding on retroactive application of Barragan to post-June 30, 1973 claims
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Join FLexlaw to unlock all legal intelligenceRichard McLean, an employee, was injured after June 30, 1973. The City of Miami had illegally reduced McLean's pension benefits by deducting workers' …
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PER CURIAM.
The first issue presented in this appeal is the retroactive application of Barragan v. City of Miami, 545 So. 2d 252 (Fla.1989), to the claim of an employee injured after June 30, 1973, the last effective date of section 440.09(4), Florida Statutes (1957), repealed by chapter 73-127, Laws of Florida, effective July 1, 1973. Consistent with our holdings in City of Miami v. Burnett, 596 So. 2d 478 (Fla. 1st DCA 1992), and City of Daytona Beach v. Amsel, 585 So. 2d 1044 (Fla. 1st DCA1991), we hold that Bar-ragan has retroactive application to July 1, 1973.
The City of Miami also argues that the judge of compensation claims improperly awarded costs and penalties pursuant to section 440.20 because penalties and costs were not specifically included in the statement of the claim in the pretrial questionnaire. We reject this argument. Although penalties and costs were not specifically mentioned in the pretrial questionnaire, these items were specifically requested in the claim for benefits and in the claimant’s memorandum of law which was submitted to the judge of compensation claims. See Sandestin Beach Resort v. Kever, 573 So. 2d 98 (Fla. 1st DCA1991).1 Section 440.20, Florida Statutes (1975), provides for imposition of a penalty when compensation is not timely paid. “Compensation” is defined as the money allowance payable to an employee as provided for in Chapter 440. Section 440.-02(11), Florida Statutes (1975). As noted in Burnett, “the benefits awarded were an ‘increase’ in the ‘the amount of workers’ compensation to offset illegal deductions’ from the employee’s pension fund pursuant to Barragan v. City of Miami, 545 So. 2d 252, 253 (Fla.1989). No contention has been made that the City failed to pay the workers’ compensation benefits due pursuant to chapter 440.” Burnett, 596 So. 2d at 478 n. 1. It does not appear that the amounts awarded were “compensation” as contemplated by section 440.20. Cf. Brantley v. ADH Building Contractors, Inc., 215 So. 2d 297 at 299 (Fla.1968) (Reference to section 440.20(6) will reveal that the penalty is based on unpaid compensation. Provision for medical services and the amount of compensation for disability are treated by different sections of the Workers’ Compensation Act. Furnishing medical and hospitalization services is a benefit provided, but it is not compensation as contemplated by the Act.).
We feel constrained, however, to affirm the award of penalties pursuant to section 440.20(5), Florida Statutes (1975), in view of the supreme court’s reliance in Barragan on the quoted portion of Jewel Tea Co. v. Florida Industrial Commission, 235 So. 2d 289 (Fla.1969). The supreme court held in Barragan that the deputy commissioner had jurisdiction to decide whether the city could reduce its pension benefits to the extent of workers’ compensation payments. The supreme court cited Jewel Tea Co., in which the court held that section 440.21, Florida Statutes, prevented a private employer from deducting group health insurance benefits from an injured claimant’s workers’ compensation benefits. In pointing out that the employer could not accomplish the same result by deducting the compensation payments from the insurance benefits, the Court said:
“Regardless of whether you say the workmen’s compensation benefits reduce the group insurance benefits or visa [sic] versa, the result violates the Statute. Claimant is entitled to workmen’s compensation in addition to any benefits under an insurance plan to which he contributed.
Id. at 291.” Barragan, 545 So. 2d at 254.
We certify the following question to be one of great public importance:
Whether an increase in workers’ compensation benefits, awarded pursuant to section 440.21 to offset illegal deductions from an employee’s pension fund, in accordance with Barragan v. City of Miami, 545 So. 2d 252 (Fla.1989), constitutes “compensation” for purposes of section 440.20, Florida Statutes?
We also certify the same question certified in City of Miami v. Bell, 606 So. 2d 1183 (Fla. 1st DCA 1992).
AFFIRMED.
SHIVERS, WIGGINTON and BARFIELD, JJ., concur. . The remaining arguments raised by the City of Miami are without merit. City of Miami v. Bell, 606 So. 2d 1183 (Fla. 1st DCA 1992); Gates v. City of Miami, 592 So. 2d 749 (Fla. 3d DCA1992).
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Citator
Cited By
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City OF Miami v. Gilbert, 630 So. 2d 1241 (Fla. 1st DCA 1994)
Authorities Cited
- Barragan v. City OF Miami, 545 So. 2d 252 (Fla. 1989)
- Jewel TEA Co., Inc. v. Fla. Indus. Comm'n & Arthur Hoagey, 235 So. 2d 289 (Fla. 1969)
- City OF Daytona Beach v. Amsel, 585 So. 2d 1044 (Fla. 1st DCA 1991)
- City OF Miami v. Lucious E. Burnett, 596 So. 2d 478 (Fla. 1st DCA 1992)
- City OF Miami v. Bell, 606 So. 2d 1183 (Fla. 1st DCA 1992)
- Brantley v. A D H Bldg. Contractors, Inc., 215 So. 2d 297 (Fla. 1968)
- Sandestin Beach Resort & Feisco v. Kever, 573 So. 2d 98 (Fla. 1st DCA 1991)
- City OF Miami v. Gates, 592 So. 2d 749 (Fla. 3d DCA 1992)