602 So. 2d 542 | Fla. Dist. Ct. App. | 1991
Lead Opinion
The City of Miami has appealed a workers’ compensation order awarding claimant, Charles Smith, pension offset benefits. On appeal, appellant contends: (1) the Judge of Compensation Claims did not have jurisdiction to award pension offset benefits; (2) competent substantial evidence does not support an award of pension offset benefits for the years 1975 and 1976; and (3) the Judge of Compensation Claims erred in finding that “should total benefits from the claimant’s workmens’ (sic) compensation entitlement and pension award exceed his average monthly wage, that the claimant is still entitled to maximum compensation benefits until such time as he is properly credited for $20,431.00 in personal accumulated contributions which were retained by the City and out of which, in part, his disability benefits were paid.”
We affirm the order of the Judge of Compensation Claims and strike the alternative finding. First, the Judge of Compensation Claims has jurisdiction to consider an award of additional compensation for a pension offset. See, Barragan v. City of Miami, 545 So.2d 252, 253 (Fla.1989); City of Miami v. Knight, 554 So.2d 549, 550 (Fla. 1st DCA 1989); rev. denied, 567 So.2d 434 (Fla.1990).
On the second issue, the testimony of claimant and the administrator for the City of Miami Firefighters and Police Officers Pension Trust, as well as pension fund documents, constitute competent substantial evidence supporting the judge’s finding that pension offsets were taken beginning July 25, 1975 and continuing until July 31, 1989. Based upon competent, substantial evidence supporting the order, we affirm the order and the award of pension offset benefits for the period specified in the order.
Accordingly, the order is affirmed and the alternative holding is stricken.
Rehearing
ON MOTION FOR REHEARING AND/OR CLARIFICATION
In City of Miami v. Smith (Fla. 1st DCA April 4, 1991), see page 542, this court affirmed a workers’ compensation order awarding claimant pension offset benefits and ordered stricken the alternative holding that “should total benefits from the claimant’s workmens’ (sic) compensation entitlement and pension award exceed his average monthly wage, that the claimant is still entitled to maximum compensation benefits until such time as he is properly credited for $20,431.00 in personal accumulated contributions which were retained by the City and out of which, in part, his disability benefits were paid.”
Concurrence Opinion
(specially concurring).
I fully concur in the disposition of points one and two for the reasons stated in the opinion for the court. I also concur in the decision to strike the alternative finding of the appealed order, but I do so for reasons other than those stated in the court’s opinion. My understanding of the briefs and record is that the approximately $20,000 of •contributions made by claimant to the pension fund were used to cover the cost of continuing the payment of pension benefits to claimant’s wife after his death. This use of these contributions precludes any application thereof as a means of securing payment of withheld or offset workers’ compensation benefits due to the claimant. I do not entirely agree with the analysis in the court’s opinion in its disposition of this issue, and I conclude that it is unnecessary to dispose of this issue upon principles that can operate, in certain circumstances, to either limit or not limit offsets in excess of a claimant’s average weekly wage, as discussed in the cited cases of Barragan v. City of Miami, 545 So.2d 252 (Fla.1989); Brown v. S.S. Kresge Co., 305 So.2d 191, 194 (Fla.1974); City of Pensacola v. Winchester, 560 So.2d 1273 (Fla. 1st DCA 1990). I would simply strike the subject provision, because the contributions were used to acquire additional benefits under the pension plan that are wholly unrelated to the workers’ compensation offset dispute.
