IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
THOMAS ECKERT, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-2555
PINELLAS COUNTY
SHERIFF’S OFFICE/PINELLAS
COUNTY RISK
MANAGEMENT,
Appellees.
_____________________________/
Opinion filed March 31, 2017.
An appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge.
Date of Accident: May 18, 2010.
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Tonya A. Oliver
of Bichler, Oliver, Longo & Fox, PLLC, Tampa, for Appellant.
Nancy S. Meyer of Pinellas County Attorney’s Office, Clearwater, for Appellees.
PER CURIAM.
Claimant appeals an order of the Judge of Compensation Claims (JCC) to the
extent that it denies payment of impairment benefits (IBs) “at the correct rate.”
Specifically, Claimant argues that 23 non-consecutive weeks of the 169 weeks of
IBs to which he was entitled were underpaid – more specifically, paid at half of their
proper rate. We reverse.
The statute at issue is section 440.15(3)(c), Florida Statutes (2009), and the
pertinent sentence reads:
Impairment income benefits are paid biweekly at the rate of 75 percent
of the employee’s average weekly temporary total disability benefit not
to exceed the maximum weekly benefit under s. 440.12; provided,
however, that such benefits shall be reduced by 50 percent for each
week in which the employee has earned income equal to or in excess of
the employee’s average weekly wage.
(Emphasis added). The Employer/Carrier (E/C), acting under this statute, paid only
the reduced amount of IBs for the 23 weeks during which Claimant drew from his
accrued leave (sick leave and vacation leave) instead of working the entirety of his
scheduled hours. The E/C asserts that when Claimant drew the leave, Claimant’s
resulting full paycheck constituted “income” equal to his average weekly wage
(AWW). Claimant, however, persuasively argues that drawn leave cannot count
toward his AWW for the week in which it is drawn because the leave was previously
accrued, and thus had not been “earned” during each week at issue. It was earned
and accrued at an earlier time.
The parties concede that the plain meaning of this statute will control. The
parties disagree, however, on what that plain meaning is. Answering this question of
first impression, we now hold that the operative word in the statutory sentence is the
word “earned” and conclude that because the previously accrued leave was not
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earned during the week it was drawn but had already vested, it cannot be included
in the calculation of earnings during the weeks in which IBs are payable for the
purpose of reducing IBs.
REVERSED and REMANDED for further proceedings in accordance with
this opinion.
ROBERTS, C.J., WOLF and B.L. THOMAS, JJ., CONCUR.
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