Employers may include initial permanent total disability supplemental benefits in the offset calculation but must exclude yearly increases from that calculation.
The Department of Transportation appeals a compensation judge's order requiring the recalculation of a workers' compensation offset under section 440.20(15), Florida Statutes. The essential facts involve the employer's initial inclusion of permanent total disability supplemental benefits in the offset calculation and the subsequent exclusion of yearly increases. The question presented is whether the employer may recalculate the offset based on the yearly five percent increase in supplemental benefits. The court applies the rule that while yearly increases in supplemental benefits must be excluded from the offset calculation, the initial supplemental benefits remain subject to the offset. The court affirms the order regarding the exclusion of yearly increases but reverses the determination excluding the initial benefits from the offset calculation.
No citing cases on record.
v.
Tony JOHNS, Appellee.
David A. McCranie of McCranie & Lower, P.A., Jacksonville, for Appellants.
Sylvan A. Wells, Daytona Beach, for Appellee.
PER CURIAM.
This cause is before us on appeal from an order of the Judge of Compensation Claims (hereinafter JCC) ordering the Employer/Carrier to recalculate the offset taken under section 440.20(15), Florida Statutes, and to exclude from the offset calculation permanent total disability supplemental benefits. We recently addressed this issue in Acker v. City of Clearwater, 755 So.2d 651 (Fla. 1st DCA 1998). We affirm the JCC's order to the extent that it orders the E/C to exclude the yearly increases in PTD supplemental[*109] benefits. We reverse, however, the JCC's determination that PTD supplemental benefits should be excluded from the initial offset calculation. See Acker, supra; Hunt v. Stratton, 677 So.2d 64, 67 (Fla. 1st DCA 1996).
Accordingly, we affirm in part and reverse in part, and certify the following question:
WHERE AN EMPLOYER TAKES A WORKERS' COMPENSATION OFF-SET UNDER SECTION 440.20(15), FLORIDA STATUTES (1985), AND INITIALLY INCLUDES SUPPLEMENTAL BENEFITS PAID UNDER SECTION 440.15(1)(e)(1), FLORIDA STATUTES (1985), IS THE EMPLOYER ENTITLED TO RECALCULATE THE OFFSET BASED ON THE YEARLY 5% INCREASE IN SUPPLEMENTAL BENEFITS?
BOOTH, BENTON and PADOVANO, JJ., concur.