BORDEN, INC. AND INSURANCE COMPANY OF NORTH AMERICA, APPELLANTS,
v.
DAVID C. BUTLER, APPELLEE
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Borden, Inc. and its insurance carrier appealed a workers' compensation decision, arguing the judge erred by failing to credit unemployment compensation received by the claimant against temporary total disability benefits. The court affirmed, holding that while the set-off was mandatory under statute, the issue was not properly raised at the hearing level and the record lacked sufficient evidence to compute the correct amount.
The judge did not err in failing to credit the set-off because the question was not properly raised at the hearing level. Although Section 440.15(11) mandates reduction of temporary total disability benefits by unemployment compensation received simultaneously, the record was inadequate to determine the proper amount of the set-off. The carrier may compute and deduct the amount prospectively, and the claimant may challenge the computation by filing a claim for judicial determination.
[1] A judge of industrial claims does not err in failing to credit an employer/carrier with unemployment compensation received by a claimant if the issue was not properly rai…
[2] Temporary total disability benefits must be reduced by the amount of unemployment compensation simultaneously received by the claimant.
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Join FLexlaw to unlock all legal intelligence“Section 440.15(11), Florida Statutes (1977), provides that temporary total disability benefits must be reduced by the amount of unemployment compensation simultaneously received by the claimant.”
Establishes the statutory mandate for the unemployment compensation set-off
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Join FLexlaw to unlock all legal intelligenceThe claimant David C. Butler received both temporary total disability benefits and unemployment compensation during the same period. Borden, Inc. and …
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PER CURIAM.
Appellant contends the judge of industrial claims erred in failing to credit the employer/carrier with unemployment compensation received by the claimant during the same time period the claimant was awarded temporary total disability benefits. We find that the judge did not err in failing to credit the employer/carrier with unemployment compensation received by the claimant because the question was not properly raised at the hearing level.
Section 440.15(11), Florida Statutes (1977), provides that temporary total disability benefits must be reduced by the amount of unemployment compensation simultaneously received by the claimant. The unemployment compensation set-off, like the Social Security set-off under Section 440.15(10), Florida Statutes (1977), is self-executing, giving rise to a continuing right and responsibility on the part of carriers to compute the correct set-off at the time a payment of compensation is due. Cf. Patrick Fruit Co. v. Boykins, IRC Order 2-3904 (September 11, 1979). The carrier’s election to take the set-off may apply only prospectively as to compensation paid after such election and after the claimant has commenced receiving his unemployment compensation. Cf. Beulah Baptist Church v. Brantley, IRC Order 2-3907 (September 11, 1979).
In this case, the record before the court is inadequate to indicate the proper amount of the unemployment set-off. However, the carrier is free to make this computation on its own and deduct the amount from its award to the claimant. Should the claimant disagree with this computation, he may file a claim and have the [*DCCCLXXVI] matter determined by the judge. Cf. Town Drug, Inc. v. Maples, IRC Order 2-3389 (April 5, 1978). As the record now stands, neither this court nor the judge below can properly determine the amount of the unemployment compensation set-off.
In keeping with this observation, the order is affirmed on all points on appeal.
SHIVERS, Acting C. J., and SHAW and WENTWORTH, JJ., concur.
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Dep't of Pub. Health v. Wilcox, 543 So. 2d 1253 (Fla. 1989)…has consistently held that the offset provision in section 440.15(9) is self-executing. See Colonel’s Table v. Malena, 412 So. 2d 64 (Fla. 1st DCA 1982); Florida Power & Light Co. v. Adkins, 377 So. 2d 57 (Fla. 1st DCA 1979); Borden, Inc. v. Butler, 377 So. 2d 795 (Fla. 1st DCA 1979); Sherrod Dry Wall v. Reeves, 378 So. 2d 301 (Fla. 1st DCA 1979).7 Accordingly, we hold that the setoff provision in section 440.15(9) is self-executing in nature and therefore, can be taken unilaterally by the employer. We quash…
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Lister v. Lavere Walker, 409 So. 2d 1153 (Fla. 1st DCA 1982)…the off-set. Also, the off-set is self-executing, just as a social security off-set and an unemployment compensation off-set are self-executing. See Florida Power & Light Co. v. Adkins, 377 So. 2d 57 (Fla. 1st DCA 1979), and Borden, Inc. v. Butler, 377 So. 2d 795 (Fla. 1st DCA 1979). Section 440.-15(1)(d) was amended in 1979, effective August 1, 1979, but under neither the original law nor the amendment is appellee presently entitled to workers’ compensation benefits because he is now earning more than his a…
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Monroe v. Publix # 148 & ITT Hartford Ins. Co., 790 So. 2d 1249 (Fla. 1st DCA 2001)…a social security disability offset against workers’ compensation indemnity benefits. See Colonel’s Table v. Molena, 412 So. 2d 64, 65 (Fla. 1st DCA 1982); Sherrod Dry Wall v. Reeves, 378 So. 2d 301, 301 (Fla. 1st DCA 1979); Borden, Inc. v. Butler, 377 So. 2d 795, 795 (Fla. 1st DCA 1979); Fla. Power & Light Co. v. Adkins, 377 So. 2d 57, 57 (Fla. 1st DCA 1979). For reasons that are not clear from the record, however, they waited until March 15, 1999, to file a notice of action/change asserting a social secur…
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