Florida Court Rules Receipt of Unemployment Compensation Benefits are Primary and Employer/Carriers Are Not Required to Affirmatively Assert an Offset Defense Prior to Payment of Any Temporary Partial Disability Benefits

Written by: Rayford H. Taylor, Esq.

The First District Court of Appeal in the recent case of N. Hannoush Jewelers, Inc. v. Bly, 1D20-2432, (Fla. 1st DCA June 30, 2021) addressed the effect of an employee’s receipt of unemployment compensation benefits (UC) on any award of temporary partial disability (TPD) benefits.  The injured worker sought TPD benefits and the Employer/Carrier sent him forms to report any earnings he was receiving during the period he claimed he was entitled to TPD benefits.  The injured employee completed those forms and indicated he was receiving UC benefits.

The Employer-Carrier asserted that there were no TPD benefits due, but if there were, the injured worker’s UC benefits should be offset against any TPD benefits due.  The injured worker argued the Employer/Carrier’s offset argument was an affirmative defense which was not specifically pled on the Pretrial Stipulation.

The Judge of Compensation Claims (JCC) awarded TPD benefits, less the amount of UC benefits, the injured worker had received during the period in dispute.  He interpreted the statute to make UC benefits primary under Section 440.15(10)(b) Fla. Stat.

The injured worker appealed, challenging the decision by the JCC to allow any “offset” of UC benefits because it was not raised as an affirmative defense.  The First District Court of Appeal ruled that an injured worker’s entitlement to TPD benefits is “supplemental” to any UC benefits the Claimant receives which are “primary.”  As such, the Employer/Carrier was not required to raise that as an affirmative defense.

Thus, if an injured worker’s UC benefits exceed what otherwise would be that employee’s full entitlement to TPD benefits, the injured worker would have no TPD entitlement.  The Court went on to say that the use of nomenclature in previous decisions about “offset” were mischaracterizations of the operation of the Statute this opinion clarifies.

For more information on this issue or any other workers’ compensation issues in Florida, please feel free to contact Rayford H. Taylor, Esq. at rtaylor@hallboothsmith.com.