Department of Public Health, Division of Risk Management v. Wilcox
543 So.2d 1253 (Fla. 1989)

Facts:

  • In a worker’s compensation proceeding, Muriel Wilcox, was awarded temporary total and permanent total disability benefits, costs, interests, and medical expenses.
  • Her employer, the State of Florida, Department of Public Health, Division of Risk Management, subsequently determined that Wilcox was also receiving federal social security benefits, and reduced the amount of her workers’ compensation award pursuant to the offset provision in section 440.15(9), Florida Statutes (1985).
    • Note: Section 440.15(9) requires that weekly workers’ compensation benefits be reduced by the amount that they and social security benefits, in the aggregate, exceed eighty percent of the injured worker’s average weekly wage.
  • Wilcox argued that the setoff provision in section 440.15(9) cannot be taken by her employer on its own accord, but rather must be authorized by the deputy commissioner.

History:
The Third District Court of Appeal agreed with Wilcox and held that her employer could not take the setoff unilaterally.

Issue:
Whether Wilcox’s employer (the state) may unilaterally take the setoff authorized by section 440.15(9).

Holding:
Yes. Case reversed.

Reasoning:

  • Although section 440.15(9) does not expressly address whether an employer may take the setoff unilaterally, section 42 U.S.C. § 424a clearly allows the Social Security Administration to do so.
  • The court found that persuasive, as well as the fact that employers have little incentive to fudge the numbers because employees could always have the deputy commissioner review it.

Rule: The setoff provision in section 440.15(9) is self-executing in nature and therefore can be taken unilaterally by the employer.