PETITIONER'S BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No. SC Lower Court Case No. 1D JEROME LOVETT, : : Petitioner, : : v. : : MIAMI-DADE COUNTY, : : Respondent. : : PETITIONER'S BRIEF ON JURISDICTION RICHARD A. SICKING, ESQ. Attorney for Petitioner, Lovett 1313 Ponce de Leon Blvd., #300 Coral Gables, Florida (305) Fla. Bar No

2 TABLE OF CONTENTS STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS STANDARD OF REVIEW... 3 SUMMARY OF ARGUMENT POINT INVOLVED POINT ONE THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH A PRIOR DECISION OF THE SUPREME COURT OF FLORIDA ON THE SAME QUESTION OF LAW WHEN: A. THE SUPREME COURT RECEDED FROM GRICE IN DIXON BY HOLDING THAT THERE IS NO GRICE SOCIAL SECURITY OFFSET; THAT THE ONLY WORKERS' COMPENSATION/SOCIAL SECURITY OFFSET IS THE ONE PROVIDED FOR BY STATUTE. B. THE FIRST DISTRICT COURT OF APPEAL HELD THAT READING DIXON AND GRICE IN TANDEM, A GRICE SOCIAL SECURITY OFFSET IS CORRECT. ARGUMENT POINT ONE CONCLUSION... 10

3 CERTIFICATE OF SERVICE CERTIFICATE OF FONT SIZE AND STYLE

4 TABLE OF CITATIONS Cases American Bankers Ins. Co. v. Little, 393 So. 2d 1063 (Fla. 1981)... 8 City of Clearwater v. Acker, 755 So. 2d 597 (Fla. 1999)... 7 City of Hollywood v. Lombardi, 770 So. 2d 1196 (Fla. 2000)... 7, 10 Dixon v. GAB Business Services, Inc., 767 So. 2d 443 (Fla. 2000)... 1, 3-10 Escambia County Sheriff's Dept. v. Grice, 692 So. 2d 896 (Fla. 1997)... passim Miami-Dade County v. Lovett, No (Fla. 1st DCA Nov. 30, 2004)... 1, 10 Orange County Fire Rescue v. Antonelli, 794 So. 2d 758 (Fla. 1st DCA 2001) Swanigan v. Dobbs House, 442 So. 2d 1026 (Fla. 1st DCA 1983)... 3 Statutes 42 U.S.C. '424a(a)(2)(B)... 5, 9-10 '440.15(9), Fla. Stat.... 5, 7

5 '440.15(9), Fla. Stat. (1992)... 2 '440.15(10), Fla. Stat.... 5, 7 '440.15(10)(a), Fla. Stat '440.20(15), Fla. Stat.... 7, 9 '440.20(15), Fla. Stat. (1985)... 8

6 STATEMENT OF THE CASE The petitioner, Jerome Lovett, was the claimant/employee in this case involving the offset of his Social Security total disability from his workers' compensation permanent total disability. The respondent is his employer, Miami-Dade County, Florida. The employer initially asserted the statutory Social Security offset against workers' compensation, but subsequently asserted a different and non-statutory offset based on Escambia County Sheriff's Dep't. v. Grice, 692 So. 2d 896 (Fla. 1997). (R. 204.) The parties agreed to try the Social Security offset first and reserve jurisdiction on the pension offset. (R. 204.) The Judge of Compensation Claims held that the employer was entitled to the statutory offset of Social Security disability against workers' compensation, but no other Social Security offset, based on Dixon v. GAB Bus. Serv., 767 So. 2d 443 (Fla. 2000), which receded from Grice insofar as a non-statutory Social Security offset is concerned. (R ) The Florida First District Court of Appeal reversed, holding that the Judge of Compensation Claims misapplied Dixon and that the employer was entitled to a Grice offset. Miami-Dade County v. Lovett, No (Fla. 1st DCA Nov. 30, 2004). Lovett seeks discretionary review of this decision. STATEMENT OF THE FACTS Lovett was a firefighter employed by Miami-Dade County. He was injured in the line of duty on June 10, 1993, resulting in permanent total disability under the Florida Workers' Compensation Law, total disability under the Social Security Act, and in-line-ofduty permanent total disability under the Florida Retirement System. (R. 23, ) Prior to December 18, 2002, the employer was taking a statutory offset for Social Security disability against workers' compensation, which is authorized by '440.15(9), Fla. Stat. (1992), at 80% of the average weekly wage or the ACE or the PIA, whichever is highest. This reduced Lovett's workers' compensation from $425 a week to $ per

7 week. (R. 204.) As of December 18, 2002, the employer changed to a non-statutory offset called a "Grice offset". (R. 204.) This was calculated by adding Lovett's maximum weekly rate for the year of injury, $425 (even though he was only getting $409.91), plus the entire amount of his Social Security total disability benefit on a weekly basis, plus the entire amount of his FRS in-line-of-duty permanent total disability on a weekly basis. These three items were then subtracted from Lovett's average weekly wage, thereby reducing his base payment from $ to $ per week. (R. 204.) The Judge of Compensation Claims held that the Social Security

8 offset to $ per week according to the statute was correct and that the "Grice offset" to $ per week was incorrect as the Supreme Court had receded from Grice in regard to the workers' compensation/social Security offset by its holding in Dixon v. GAB Bus. Serv., 767 So. 2d 443 (Fla. 2000). (R ) The Florida First District Court of Appeal reversed, holding that the employer's use of the "Grice offset" was correct. (A. 1-4.) STANDARD OF REVIEW The standard of review is de novo. See Swanigan v. Dobbs House, 442 So. 2d 1026 (Fla. 1st DCA 1983). SUMMARY OF ARGUMENT The First District Court of Appeal has resurrected Grice in regard to a workers' compensation/social Security offset, notwithstanding that this Court receded from Grice in Dixon by holding that the only workers' compensation/social Security offset is the statutory one. In Grice, this Court indicated that the total of workers' compensation and Social Security disability and Florida Retirement System disability should not exceed 100% of the average weekly wage. The case did not provide a formula for doing so. It did not clearly set forth who pays first, who pays second, and who pays third. Certainly, Grice should not be taken to mean that this Court was giving employers permission to calculate the workers' compensation/social Security offset in a manner different from that provided for by statute. Consequently, in Dixon, this Court receded from Grice by holding that the only workers' compensation/social Security offset is the one provided for by statute. After Dixon, there is no "Grice offset" for Social Security. There is only the statutory offset. In the present case, the First District Court of Appeal created a new "Grice offset" rule directly contrary to Dixon, by combining the base workers' compensation rate (even

9 if the employee was already getting less on account of the statutory Social Security offset), adding all of the Social Security and all of the FRS and subtracting that total from the average weekly wage so as to cap all benefits combined at 100% of the AWW or 80% of the ACE, whichever is greater. This Court held in Dixon that including all of the Social Security disability in the "Grice offset" violated the statutory Social Security offset provision. Instead of following Dixon, the First District Court of Appeal stated that it was reading Dixon and Grice in tandem by constructing a new rule of law, which is Grice without the modification of the Dixon/statute rule.

10 The District Court's decision plainly changes the jurisprudence in this area from that previously set forth by the Supreme Court of Florida in Dixon. It is a return to Grice. This has broad application. It applies to all state and county employees who are compulsory members of the Florida Retirement System and the Social Security Act, as well as those city employees who are voluntary members of FRS; and it would also apply to all other employees who would be subject to Social Security, workers' compensation and a disability benefit plan. By combining workers' compensation, Social Security disability and a disability pension in one offset calculation, instead of doing them separately as provided by state and federal statute, the Florida First District Court of Appeal's decision conflicts with '440.15(9), Fla. Stat. [now section '440.15(10), Fla. Stat.] in regard to a workers' compensation/social Security offset and conflicts with 42 U.S.C. 424a(a)(2)(B) in regard to a Social Security disability/disability pension offset. The Supreme Court should grant review and reverse the decision of the First District Court of Appeal by restating the rule of Dixon, that the only workers' compensation/social Security offset is the one provided for in the statute. There is no other. ARGUMENT POINT ONE THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH A PRIOR DECISION OF THE SUPREME COURT OF FLORIDA ON THE SAME QUESTION OF LAW WHEN: A. THE SUPREME COURT RECEDED FROM GRICE IN DIXON BY HOLDING THAT THERE IS NO GRICE SOCIAL SECURITY OFFSET; THAT THE ONLY WORKERS' COMPENSATION/SOCIAL SECURITY OFFSET IS THE ONE PROVIDED FOR BY STATUTE.

11 B. THE FIRST DISTRICT COURT OF APPEAL HELD THAT READING DIXON AND GRICE IN TANDEM, A GRICE SOCIAL SECURITY OFFSET IS CORRECT. In Escambia County Sheriff's Dep't. v. Grice, 692 So. 2d 896 (Fla. 1997), the Supreme Court of Florida indicated that the total amount of workers' compensation, Social Security disability and FRS in-line-of-duty permanent total disability should not exceed 100% of the workers' compensation average weekly wage. The case does not contain a formula for this calculation. It does not indicate who pays first, who pays second, and who pays third. Obviously, who pays second and who pays third could pay less, depending upon the amount and order of payments. Certainly, Grice should not be taken to mean that the Supreme Court of Florida was

12 authorizing a workers' compensation/social Security offset to be taken in a manner different from that provided for by statute. Furthermore, as pointed out by the Supreme Court of Florida in City of Hollywood v. Lombardi, 770 So. 2d 1196, at 1204, footnote 14 (Fla. 2000): Although section (9) specifically allows a reduction of workers' compensation by the amount of social security disability paid, no similar statute within the workers' compensation statutory scheme refers to how disability retirement benefits should be treated. Subsequent to Grice, the Supreme Court of Florida decided Dixon v. GAB Bus. Serv., 767 So. 2d 443 (Fla. 2000). In discussing a possible conflict between Grice and the workers' compensation/social Security disability offset statute, '440.15(10), Fla. Stat. 1 The Supreme Court stated in Dixon v. GAB Bus. Serv., 767 So. 2d 443, at 445 (Fla. 2000): As this Court noted in City of Clearwater v. Acker, 755 So. 2d 597 (Fla. 1999), our interpretation of section (15) [in the Grice case] to mean that a claimant may not receive in excess of 100 percent of his or her AWW was a judicial interpretation of an ambiguous statute and should not be extended to render another statute ['440.15(10), Fla. Stat.] 2 meaningless. In Dixon, as the claimant's ACE was higher that his AWW, the coordination of his workers' compensation and Social Security at 80% of his 1 2 '440.15(9), Fla. Stat. in the present case. Ibid.

13 ACE per the statute, would exceed 100% of his average weekly wage. The Court pointed out that Grice was not intended to create a Social Security offset different from that provided by statute, even if that meant that the combination of the two benefits would exceed 100% of the average weekly wage. The Court held: Accordingly, we answer the certified question in the negative and hold that when a claimant is receiving SSD benefits in addition to workers' compensation, thus implicating section (10)(a), an employer/carrier may offset workers'compensation benefits but only to the extent that the claimant's benefits exceed 80 percent of AWW or ACE, whichever is greater. See American Bankers Ins. Co. v. Little, 393 So. 2d at The benefits may not be reduced beyond this amount. This is so even though the claimant may be receiving in excess of 100 percent of AWW at the time of the accident. (Emphasis added.) Dixon, supra, at 445. The clear holding in Dixon from the Supreme Court of Florida is: The benefits may not be reduced beyond this amount. In the present case, the First District Court of Appeal held: Grice held section (15), Florida Statutes (1985), permits the employer to reduce a claimant's workers' compensation benefits to the extent his combined benefits from workers' compensation and collateral sources exceed 100% of his AWW. See Grice, 692 So. 2d at 898; Dixon, 767 So. 2d at 444. A Grice offset is calculated by adding the CR, SSD, and collateral sources, in this case, FRS benefits, and subtracting 100% of the AWW from the total. See Orange County Fire Rescue v. Antonelli, 794 So. 2d 758 (Fla. 1st DCA 2001) (en banc). This means a

14 claimant's benefits would not be reduced through an offset unless he was receiving at least 100% of AWW. (A. 3.) In the present case, the First District Court of Appeal held: Using this information, the employer concluded they were entitled to an offset and calculated their entitlement pursuant to Grice. The employer added Claimant's weekly CR of $425.00, his SSD benefit of $265.05, and his FRS benefit of $ for a total of $1, The employer then subtracted Claimant's $ AWW from his total weekly benefits of $1, This calculation resulted in a weekly offset of $ * * * The employer correctly calculated its offset pursuant to the formula provided in Grice, and provided Claimant with 100% of his AWW. (A. 2, 4.) The holding of the First District Court of Appeal, the rule of law, adopted to govern this case and to be a precedent for future cases is stated as follows: When reading Dixon, Grice, and the relevant statutes in tandem, a claimant's SSD benefit may be offset, but only to the extent it does not reduce total benefits to less than 100% of the claimant's monthly AWW (Grice) or 80% of his monthly ACE (Dixon), whichever is greater. See ''440.15(10)(a), and (15), Fla. Stat. (A. 4.) Dixon honors the Florida workers' compensation/social Security disability offset statute. In passing, it also honors the federal statute. 42 U.S.C. '424a(a)(2)(B) provides an offset for government employees who receive Social Security disability and a disability pension. This offset is calculated separately from the workers' compensation/social Security

15 disability offset and it belongs to the Social Security Administration exclusively. There is no Florida equivalent. Lombardi, footnote 14, supra. Miami-Dade County v. Lovett, supra, scrambles the Florida statute and it violates the federal statute by taking away the Social Security disability/pension disability offset from the Social Security Administration. EXPRESS AND DIRECT CONFLICT Dixon (Supreme Court): Lovett (First DCA): Take Calculate statutory workers' full workers' compensation compensation/social Security rate and Social Security disability offset first (80% of disability and FRS disability AWW or ACE, whichever is and add all three; higher); add the result of this subtract this result from calculation to the disability AWW and cap that result pension and cap that result at at 100% of AWW or 80% 100% of the AWW. See City of ACE, whichever is higher. of Hollywood v. Lombardi, supra. CONCLUSION The petitioner requests the Court to grant discretionary review to consider reversing the decision of the Florida First District Court of Appeal and reinstating the decision of the Judge of Compensation Claims. Respectfully submitted, RICHARD A. SICKING, ESQ.

16 Certificate of Service I certify that a copy of the foregoing has been furnished by mail this day o December, 2004, to: Monica Maldonado, Assistant County Attorney, attorney fo respondent, Miami-Dade County, 111 N.W. First Street, #2810, Miami, Florida Richard A. Sicking, Esq. Attorney for Petitioner, Lovett 1313 Ponce de Leon Blvd., #300 Coral Gables, Florida Telephone (305) Fla. Bar No

17 Certificate of Font Size and Style I certify that this brief has been typed in 14 point proportionately spaced Times New Roman. Richard A. Sicking