JOSE SANTOS, APPELLANT,
v.
K-MART AND KM ADMINISTRATIVE SERVICES, APPELLEES
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Santos appealed a workers' compensation order dismissing his claim for recalculation of permanent total disability benefits with proper social security offset. The court reversed, holding that judicial review of social security offsets is always available to employees and the burden is on the employer to prove the offset was properly calculated.
The court held that judicial review of social security offsets is always available to employees regardless of the administrative reduction already taken, and the claim is not moot. The burden is on the employer to prove any social security offset was properly calculated, and the compensation judge erred in dismissing the claim without requiring such evidentiary support.
[1] A workers' compensation claim seeking a correct calculation of permanent total disability benefits, including social security offset, is not moot simply because the claim…
[2] An employer carries the burden to prove that a social security offset was appropriately taken when raised as an issue by a claimant.
Previewing 2 of 4 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“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.”
Establishes that judicial review of administrative offsets is a fundamental right for employees.
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Join FLexlaw to unlock all legal intelligenceSantos suffered a workplace accident on July 5, 1984. In March 1991, he filed a claim contending he was being underpaid weekly benefits. The employer/…
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PER CURIAM.
This is an appeal from a workers’ compensation order dismissing Santos’ claim which requested a correct calculation of permanent total disability benefits, taking into account any appropriate social security offset. We reverse and remand.
On March 28, 1991, Santos filed a claim for benefits arising out of an accident which occurred on July 5,1984. Santos claimed the carrier was currently paying $40.83 per week when the appropriate amount should be $57.25 per week based on a figure of $142.88 per week (as 80% of the average current earnings) less $85.63 per week as the initial monthly social security entitlement in March 1985. At the hearing, the employer/carrier (e/e) submitted a notice of suspension of benefits, dated May 14, 1991, which indicated that Santos’ weekly compensation rate of $113.34 had been reduced by a social security offset of $53.06, resulting in a new weekly compensation rate of $60.28. Santos in turn argued there was no evidence of record that the e/e were, or are, in fact paying this amount.
The judge of compensation claims (JCC) found that in view of the fact that the e/e are currently paying $60.28 per week, since the claim requested 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 security offset was appropriately taken. Pan American Bank v. Glinski, 584 So. 2d 52 (Fla. 1st DCA 1991); Colonel’s Table v. Malena, 412 So. 2d 64 (Fla. 1st DCA 1982). In the instant ease, in dismissing Santos’ claim, the JCC effectively approved the e/c’s offset without any evidentiary basis. Upon the filing of Santos’ claim requesting a determination of the proper offset amount, it was incumbent upon the JCC to take evidence from the e/c in support of the appropriateness of any amount taken, in accordance with section 440.15(9), Florida Statutes.
REVERSED and REMANDED for further proceedings consistent with this opinion.
SMITH, ALLEN and MICKLE, JJ., concur.
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Merritt v. Promo Graphics, Inc., 691 So. 2d 632 (Fla. 5th DCA 1997)…as calculated properly. As a result, the trial court properly concluded that resolution of these issues is beyond the limited rule nisi jurisdiction of the circuit court and must be resolved by the judge of compensation claims. See Santos v. K-Mart, 629 So. 2d 1071 (Fla. 1st DCA 1994). Finally, we address Mr. Merritt’s argument regarding the propriety of providing payments directly to his wife for attendant care benefits. Mr. Merritt does not argue that attendant care benefit payments are not being paid. Such…1 / 2
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Salony v. South Florida Public Communication, 734 So. 2d 544 (Fla. 1st DCA 1999)…ject matter jurisdiction over setoff issue in rule nisi proceeding, where the resolution of the setoff issues requires both legal and factual determinations which are beyond the limited rule nisi jurisdiction of the circuit court); Santos v. K-Mart, 629 So. 2d 1071 (Fla. 1st DCA 1994)(review of social security offsets is always available to workers’ compensation claimant). Contrary to the conclusion reached by the JCC, the petition brought by claimant was not an enforcement matter subject only to the rule nisi…
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Irwin Sarakoff v. Broward Cnty. Sch. Bd. & Gallagher Bassett Servs., Inc., 736 So. 2d 1232 (Fla. 4th DCA 1999)…t-off in a rule nisi proceeding, it does not mean the claimant cannot challenge the set-off taken by the employer before the JCC. When employers take set-offs administratively, review by the JCC is always available to the employee. Santos v. K-Mart, 629 So. 2d 1071 (Fla. 1st DCA 1994) (holding employee could always challenge employer’s administrative determination of a set-off for social security benefits). Thus, we hold that the trial court exceeded its limited rule nisi jurisdiction by taking evidence on, a…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dep't of Pub. Health v. Wilcox, 543 So. 2d 1253 (Fla. 1989)
- PAN Am. Bank & C.L.A.S. v. Glinski, 584 So. 2d 52 (Fla. 1st DCA 1991)
- Colonel's Table & Zurich-American Ins. Co. v. Malena, 412 So. 2d 64 (Fla. 1st DCA 1982)
- Quail Ridge & Aetna Cas. & Sur. Co. v. Johnson, 584 So. 2d 199 (Fla. 1st DCA 1991)