Petition for Writ of Certiorari — Myers v. City of North Miami

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|) 03 555 ocl 14 2003

Jn The

Supreme Court of the Anited States

.

ARTHUR MYERS,

Petitioner,

V.

CITY OF NORTH MIAMI and

INTEGRATED INS. CO.,

Respondents.

,

Vv

On Petition For A Writ Of Certiorari

To The Florida First District Court Of Appeal

¢

PETITION FOR A WRIT OF CERTIORARI

RICHARD A. SICKING

Florida Bar No. 073747

1313 Ponce de Leon Blvd., Suite 300

Coral Gables, Florida 33134

Telephone: 305-446-3700

Facsimile: 305-446-4014

3* ff

QUESTIONS PRESENTED FOR REVIEW

Whether the Supreme Court of the United States

should exercise its jurisdiction to review a decision of a

Florida District Court of Appeal declaring valid a state

statute, which eliminated a workers’ compensation benefit

on account of the receipt of federal social security benefits,

when:

Question One: (A) The Supreme Court of the United

States has declared unconstitutional on supremacy

grounds, a provision in a state workers’ compensation law

which reduced workers’ compensation on account of the

receipt of benefits under federal law, when there was no

specific authorization by Congress to the states for such

reduction. Rose v. Arkansas State Police, 479 U.S. 1, 93

L. Ed. 2d 183, 107 S. Ct. 334 (1986).

(B) The 1965 authorization by Congress to the states

to reduce workers’ compensation on account of the receipt

of social security disability was withdrawn by Congress as

of February 18, 1981. Pub. L. No. 97-35, sec. 2208(6)

(1981); 42 U.S.C. § 424a(d) (1981).

(C) The Social Security Administration adopted 20

C.F.R. § 404.408(b), providing that state laws reducing

workers’ compensation on account of the receipt of social

security actually had tc have been in effect on February

18, 1981, and that the federal government would not

recognize any change in state law after that date.

(D) This Florida statute was not enacted until 1990.

ii ;

QUESTIONS PRESENTED FOR REVIEW - Continued

Question Two: The highest courts of three states

have invalidated workers’ compensation statutes which

reduce permanent total disability benefits on account of

the receipt of social security old age retirement, on equal

protection grounds, although other states’ highest courts

take a contrary view.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW................. i

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RS OF FAAS CE IEE II exneescenessescsnnsscorssserqsonsssccssase Vv

CITATIONS OF OFFICIAL AND UNOFFICIAL RE-

PORTS OF THE OPINIONS ENTERED IN THIS

IEE Sieisihaiieshinintcaniephacthashansbeuhiatiebsanesaneninsessiatensaticinotasensons 1

CONCISE STATEMENT OF THE BASIS OF THIS

PP OF EPR MPNP Ir EIEN vicenisvucsisenscenacnssneseessnnessonse 1

CONSTITUTIONAL PROVISIONS, TREATIES, STAT-

UTES, ORDINANCES AND REGULATIONS IN-

ee BEF BEI IED vrs avcenssnvenesvssevssesessecsestovecnsee 4

CONCISE STATEMENT OF THE CASE ...............00000 4

CONCISE STATEMENT OF THE FACTS...............005 5

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EINE SETINED sassciiskanusinquinisassenesassninedinopnineuccteoe 9

I eniddiceeaihitiideiniabsaseikinksesscnsessinuninceaeanins 9

APPENDIX TABLE OF CONTENTG..............:ccsccssscsesesseees i

APPENDIX

Opinion Of Florida First District Court Of Appeal ... App. 1

I eats kaka shnnenenensdnsnhtenebewsasnennsesscenescuineseesunss App. 11

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iv

TABLE OF AUTHORITIES

Page

CASES

City of Clearwater v. Acker, 755 So. 2d 597 (Fla.

ari sicchcsuisscsessiicesibaitetiediiitiaalabiadblla aad legdaiiteindeaniaahiihaipleananilantien 5

Free v. Bland, 369 U.S. 663, 8 L. Ed. 2d 180, 82 S.

Sk: eee eiasiissuicbidicbistadcenieindaaintsdaniindalieaatatatinnesnmghinans 8

Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23 (1824).............. 8

Golden v. Westark Community College, 969 S.W. 2d

BE CI: eee ccsissdiiionsbienticlachltandienicsntetaen dadecrbeiiniinenamatiaibaiaa 9

Fiarrell v. Florida Construction, et al., and Arthur

Myers v. City of North Miami, et al., 834 So. 2d

352 (Fla. lst DCA 2003), review denied, Harrell,

et al. v. Florida Construction Specialists, et al.,

PE BO Te Fane CN ee ccesecnsccnesccscencesevncscnesnennsnsinncias 1

Harris v. State of Washington Dept. of Labor, 842 P.

Be Re CB ikatiaciniathintcsessintaneein eens 9

Indus. Claim Appeals Office v. Romero, 912 P. 2d

ee A, I vcsscincsientncehicdninisiasanbesnbnuppcibibibisiiiondadunsibenianaite 9

McDowell v. Jackson Energy RECC, 84 S.W. 3rd 71

STEED ienensssdocssienisiniaidp-cietinsecbuipeaiadsinanieiinianabthiacusiadbianigpeianinabia 9

Rose v. Arkansas State Police, 479 U.S. 1, 93

L. Ed. 2d 183, 107 S. Ct. 334 (1986)... ee eeeeesernedy 8

State ex rel. Boan v. Richardson, 482 S.E. 2d 162

FUG. As UNE ciessisisensnilasniissessnieiiitieisiniissdiiieneasiiudiaianiatihainaintitiendions 9

Texas Employers’ Ins. Assoc. v. U. S., 569 F. 2d 874

(5th Cir. [Texas] 1978), cert. denied, 439 U.S.

826, 58 L. Ed. 2d 119, 99 S. Ct. 98 (1978) ........... eee 8

Wilkins v. Broward County School Board, 754 So.

ae ee Be Ee ee iiekaescsnkcaneiiinnahnriontineinieniians 6

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTION

Dek. Ta Te De Ge votenicdetiaias ata passim

DO, Te a OB he tie We acintcnnrninestosesetndiccaae: 4

STATUTES

Ds Ok Si iicncheatedbstviicacheniebiiceiacantemcoinmesione 1

§ 440.15(1)(e), Fla. Stat. (1991) .............ccecsscssssscsssssssssees 4,6

§ 440.15(1Xf), Fla. Stat. ....cccssssssssssscssssssssssssseessssseeses suueu5, 6

BO els BL HIE sactonscninbcsnststanscmanelacaeiematl 1, 2, 6, 8

Ch. 90-201, § 20, Laws Of Fla....cc..ccssssssssssssssesesecscseene 1.6, 8

Omnibus Budget Reconciliation Act of 1981,

Pub. L. No. 97-35, Sec. 2208(6) (1981)............cccscceeeeeees 6

Be US MTD \nicinsithdcerialelaaiadaeiameaiana 3

CB TAs Dei invitiihinanttiomindiiaiaianaian ian 5

SB CR 6 iiitentininsiesirctnnlnatidcnsmaeeieeen 5

SO AE i scsiitscisisessiectenennsiessieiialisaniiimicmeaiiamemuaes 7

BE TE EI iciiscsnsnnerencsinteiseseastniaiitinioniiamiaaciamag 6

42 U.S.C. § 424a(d) seesesenensseseensssscansnsscnsssscenensesseneasensnensaes 4,6

Se UA BR Ce iceciecssninttiachetindnnipeiieiiinmitnisinints 7

RULE

I SAF ae Er ei scrssssanceanitnncieauieinibcsabnemcneumnans 2, 4, 7

vi

TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS

Vol. 9, Larson’s Workers’ Compensation Law,

§ 157.03(5)(a), p. 157-18 (2000).........ccecsereeeeesereeeeeeeenes 7

1

CITATIONS OF OFFICIAL AND

UNOFFICIAL REPORTS OF THE

OPINIONS ENTERED IN THIS CASE

Arthur Myers v. City of North Miami, OJCC Nos. 91-

000397MIA, 92-001239MIA, Order of Judge of Compensa-

tion Claims Kathryn S. Pecko, dated January 16, 2002

(unpublished decision).

Harrell v. Florida Construction, et al., and Arthur

Myers v. City of North Miami, et al., 834 So. 2d 352 (Fla.

ist DCA 2003).

Harrell, et al. v. Florida Construction Specialists, et

al., 851 So. 2d 728 (Fla. 2003).

7

_

CONCISE STATEMENT OF THE BASIS

OF THIS COURT’S JURISDICTION

The Florida First District Court of Appeal held that

§ 440.15(1\(f)1, Fla. Stat., formerly § 440.15(1)e), Fla. Stat.,

was constitutionally valid against the argument that this

statute violated the Supremacy Clause of the U.S. Constitu-

tion and the equal protection guarantees of the federal and

state constitutions. The Supreme Court of Florida declined to

accept jurisdiction to review on July 16, 2003.

In 1965, the Congress authorized the states, as a state

option, to reduce workers’ compensation on account of the

receipt of social security disability benefits. In 1981, Con-

gress withdrew this authorization, but grandfathered the

approximately one third of the states (like Florida) that had

exercised the state option by enacting such legislation;

thereby making it totally illegal in two thirds of the states for

the state legislature to enact such legislation. The states

2

that had exercised the state option were allowed to keep

what they had already enacted, but were not authorized to

change such laws, both by the terms of the Congressional

amendment and the subsequent regulation of the Social

Security Administration contained in the Code of Federal

Regulations. Nine years later, in 1990, Florida adopted

what is now § 440.15(1)(f)1, Fla. Stat., which provides that

those employees who are receiving workers’ compensation

permanent total disability, who received social security

total disability, and who would be eligible to receive social

security old age retirement after age 62, are no longer

entitled to the workers’ compensation cost of living ad-

justment.

The Supreme Court of the United States held in Rose

v. Arkansas State Police, 479 U.S. 1, 93 L. Ed. 2d 183, 107

S. Ct. 334 (1986), that the states could not reduce workers’

compensation on account of the receipt of benefits under

federal law without specific authorization from Congress

to do so.

The Code of Federal Regulations specifically provides

that the federal government will not recognize any state

law change in the reduction of workers’ compensation on

account of the receipt of social security disability after

February 18, 1981. 20 C.F.R. § 404.408(b).

The Supremacy Clause of the federal constitution

provides that the laws of the United States are the su-

preme law of the land. This also includes the rules and

regulations of federal agencies. The Florida statute was

passed nine years after Congress withdrew authorization

to the states to enact such legislation. Therefore, it vio-

lates the Supremacy Clause.

3

The United States Constitution guarantees equal

protection of the laws. Using the rational basis test, it is

totally unreasonable to take away a cost of living adjust-

ment from those persons who are injured at work resulting

in permanent total disability (blindness, paralysis, ampu-

tation, etc.) so that they would revert to their original

workers’ compensation rate from years before, when they

reach age 62, just because they are eligible for a social

security early (reduced), old age retirement.

The Supreme Courts of Colorado, Arkansas and West

Virginia have already held that laws, which reduce work-

ers’ compensation payments to those who are permanently

totally disabled on account of the receipt of social security

old age retirement benefits, violate the equal protection,

guarantees of the federal constitution. However, the

Florida First District Court of Appeal held that such laws

do not violate equal protection guarantees. There is a wide

divergence in the courts of last resort of the various states

on this point, including Kentucky and Washington, which

hold the same as Florida.

For these reasons, it would be most appropriate for

the Supreme Court of the United States to consider the

issues involved pursuant to 28 U.S.C. § 1257(a).

o

=

8 ee ee ee ee

4

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES AND

REGULATIONS INVOLVED IN THIS CASE

Art. VI, cl. 2, U.S. Const.; Amend. XIV, §1, US.

Const.; 42 U.S.C. § 424a(d); 20 C.FR. § 404.408(b); |

§ 440.15(1)(e), Fla. Stat. (1991). |

¢

CONCISE STATEMENT OF THE CASE

The petitioner, Arthur Myers, was the appellant below

before the Florida First District Court of Appeal. The

respondents were his employer, the City of North Miami,

Florida, and its workers’ compensation insurance carrier,

Integrated Insurance Company.

bd

Myers claimed the continuation of the workers

compensation cost of living adiustment (COLA) for

permanent total disability, which he had been receiving.

The employer/carrier had discontinued this benefit after

age 65. The Judge of Compensation Claims denied this

claim based on § 440.15(1)(e), Fla. Stat. (1991).

Myers appealed, challenging the constitutional valid- |

ity of the statute. (The Judge of Compensation Claims did

not have jurisdiction on this issue.) |

In an opinion of January 8, 2003, the Florida First

District Court of Appeal expressly declared that the

statute was constitutionally valid in that it did not violate

the Supremacy Clause of the U.S. Constitution or the

equal protection guarantees of the state and federal

constitutions.

5

Myers sought review in the Supreme Court of Florida,

which declined to accept jurisdiction, 5 to 2, by order dated

July 16, 2003.

r

v

CONCISE STATEMENT OF THE FACTS

Myers was injured in his employment on March 22,

1991, and January 21, 1992, and rendered permanently

and totally disabled from all work. He received social

security total disability. He received workers’ compensa-

tion permanent total disability based on the compensation

rate in force on his last date of accident. In addition, he

received a cost of living adjustment amounting to 5% of his

own compensation rate for each year since his accident,

but not exceeding the maximum rate for the year of

payment. § 440.15(1)(f), Fla. Stat. Although called a

“supplemental benefit” in the statute, it is a cost of living

adjustment (COLA). City of Clearwater v. Acker, 755 So. 2d

597 (Fla. 1999).

When Myers reached age 65, his COLA was discon-

tinued, although his social security old age benefit, after

age 65, was the same amount as his social security disabil-

ity benefit had been.

The employer/carrier relied on a Florida statute,

which provides:

Entitlement to these supplemental payments

“shall cease at age 62 if the employee is eligible

for social security benefits under 42 U.S.C. ss.

402 and 423, whether or not the employee has

applied for such benefits.

6

§ 440.15(1)(f)1, Fla. Stat.; formerly § 440.15(1)(e), Fla.

Stat. (1991).

This statute was first enacted in 1990. Ch. 90-201,

§ 20, Laws of Fla.

In Wilkins v. Broward County School Bd., 754 So. 2d

50 (Fla. 1st DCA 2000), the Florida First District Court of

Appeal held that this statute applied to anyone who

received social security total disability and workers’

compensation permanent total disability, who was eligible

for social security old age retirement after age 62.

4

7

ARGUMENT

Question One

In 1965, Congress created the social security offset by

which social security disability benefits were reduced on

account of the receipt of workers’ compensation, according

to a formula, until age 62. 42 U.S.C. § 424a(a). At the same

time, Congress created an exception, by authorizing the

states to reverse the offset, as an option, to reduce work-

ers’ compensation on account of the receipt of social

security disability. 2 U.S.C. § 424a(d).

Florida enacted such a law in 1974, providing for

workers’ compensation to be reduced on account of the

receipt of social security disability, according to a formula,

until age 62, but never more than what the federal gov-

ernment would have deducted. § 440.15(1)(f), Fla. Stat.;

formerly § 440.15(1)(e), Fla. Stat. (1991). :

In the Omnibus Budget Reconciliation Act of 1981,

Pub. L. No. 9735, Sec. 2208(6) (1981), Congress amended

7

42 US.C. § 424a in two ways: (1) to increase from 62 to 65

the years during which the Social Security Administration

could reduce social security disability on account of the

receipt of workers’ compensation; and (2) to withdraw the

authorization to the states to reduce workers’ compensa-

tion on account of the receipt of social security disability.

However, Congress grandfathered the states that had

already enacted such laws, but only as to state laws

enacted prior to February 18, 1981. The federal statute as

amended in 1981, provides:

The reduction of benefits required by this

section shall not be made if the law or plan de-

scribed in subsection (a)(2 of this section under

which a periodic benefit is payable provides for

the reduction therecf when anyone is entitled to

benefits under this subchapter on the basis of the

wages and self-employment income of an indi-

vidual entitled to benefits under section 423 of

this title, and such law or plan so provided

on February 18, 1981. (Emphasis added.)

42 U.S.C. § 424a(d) (1981).

At that point, only about one third of the states had

already enacted laws reducing workers’ compensation

benefits on account of the receipt of social security. Thus,

in two thirds of the states, such laws are now completely

forbidden. In the remaining one third (like Florida), the

states may keep such laws as they had on February 18, 1981,

but they may not change them. Vol. 9, Larson’s Workers’

Compensation Law, § 157.03(5Xa), p. 157-18 (2000).

Following the 1981 Congressional Amendment, the

Social Security A ministration enacted 20 C.FR.

§ 404.408(b), providing that the state law involved actually

had to have been in effect on February 18, 1981, and that

8

the federal government would not recognize any change

thereafter.

In the present case, § 440.15(1)(f)1, Fla. Stat., cutting

off the cost of living adjustment at age 62 on account of the

receipt of social security benefits was passed in 1990, nine

years later. Ch. 90-201, § 20, Laws of Fla.

Acts of state legislatures which conflict with or inter-

fere with the laws of the United States, violate Article VI,

cl. 2, of the U.S. Constitution, commonly called “the

Supremacy Clause”. Gibbons v. Ogden, 9 Wheat. 1, 211, 6

L. Ed. 23 (1824).

The words, “the Laws of the United States” in the

Supremacy Clause include the rules and regulations of

federal agencies, not just the acts of Congress. Free uv.

Bland, 369 U.S. 663, 8 L. Ed. 2d 180, 82 S.Ct. 1089

(1962); Texas Ermployers’ Ins. Assoc. v. U. S., 569 F. 2d 874

(5th Cir. [Texas] 1978), cert. denied, 439 U.S. 826, 58

L. Ed. 2d 119, 99 S. Ct. 98 (1978).

In Rose v. Arkansas State Police, 479 U.S. 1, 93

L. Ed. 2d 183, 107 S. Ct. 334 (1986), the Supreme Court of

the United States held that a provision in the Arkansas

workers’ compensation law, which reduced workers’

compensation on account of the receipt of a benefit under

federal law, violated the Supremacy Clause. The Arkansas

Court had decided that the states had power to reduce

workers’ compensation on account of the receipt of federal

benefits and did not need the permission of Congress to do

so. However, the Supreme Court of the United States

disagreed.

9

Question Two

- On the equal protection question, using the rational

basis test, the Supreme Courts of Arkansas, Golden v.

Westark Community College, 969 S.W. 2d 154 (Ark. 1998);

Colorado, Indus. Claim Appeals Office v. Romero, 912 P. 2d

62 (Colo. 1996); and West Virginia, State ex rel. Boan v.

Richardson, 482 S.E. 2d 162 (W. Va. 1996), have specifi-

cally held that provisions in their state workers’ compen-

sation laws which reduced the payment of workers’

compensation for permanent total disability on account of

the receipt of social security old age retirement were

invalid, as violating the equal protection of the laws’

guarantees in their state constitutions, as well as the

United States Constitution. Other state courts have

viewed the issue differently. E.g., Harris v. State of

Washington, Dept. of Labor, 842 P. 2d 1u56 (Wash. 1993);

McDowell v. Jackson Energy RECC, 84 S.W. 3rd 71 (Ky.

2002).

4

v

CONCLUSION

For these reasons, the petitioner submits that the

Supreme Court of the United States should review the

decision of the Florida First District Court of Appeal

because it held a state statute to be valid when the Su-

preme Court of the United States has already rendered a

contrary decision on the supremacy issue, and the Social

Security Act and the Code of Federal Regulations contain

specific contrary provisions dealing with the supremacy

issue; and the courts of last resort in several of the states

10

are in severe and vast disagreement as to the correct rule

of law on the equal protection issue.

Respectfully submitted,

RICHARD A. SICKING

Florida Bar No. 073747

Counsel of Record for Petitioner

1313 Ponce de Leon Blvd.

Suite 300

Coral Gables, Florida 33134

Tel.: 305-446-3700

Fax: 305-446-4014

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

APPENDIX

TABLE OF CONTENTS

Page

Opinion Of Florida First District Court Of Appeal.... App. 1

Harrell v. Florida Construction, et al., and Arthur

Myers v. City of North Miami, et al., 834 So. 2d

352 (Fla. lst DCA 2003)

Order Of Supreme Court of Florida Denying Re-

WIA vccsrrsiuecisenisisnndemignininemamdna App. 11

Harrell, et al. v. Florida Construction Specialists, et

al., 851 So. 2d 728 (Fla. 2003)

96 CPD: 6 EMI iineniiccinnanenan App. 13

App. 1

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

WINTON HARRELL,

Appellant,

v. CASE NO. 1D01-3512

FLORIDA CONSTRUCTION

SPECIALISTS/AARLA/AGENT

FOR FWCIGA,

Appellee.

and

ARTHUR MYERS,

Appellant,

Vv. CASE NO. 1D02-366

CITY OF NORTH MIAMI and

INTEGRATED INS. CO.,

Appellees.

/

Opinion filed January 8, 2003.

Case No. 01-3512:

An appeal from an order of the Judge of Compensation

Claims. John J. Lazzara, Judge.

Arthur C. Beal, Jr., of Arthur C. Beal, Jr., Tallahassee; and

Richard A. Sicking of Richard A. Sicking, P.A., Coral

Gables, for Appellant.

App. 2

Mary L. Wakeman of McConnaughhay, Duffy, Coonrod,

Pope & Weaver, P.A., Tallahassee, for Appellee.

Case No. 02-368:

An appeal from an order of the Judge of Compensation

Claims. Kathryn S. Pecko, Judge.

Richard A. Sicking of Richard A. Sicking, PA., Coral

Gables, for Appeliant.

~

William C. Robinson, Miami, for Appellees.

DAVIS, J. |

Appellants/claimants, Arthur Myers and Winton

Harrell, appeal orders of the judges of compensation

claims holding that because appellants were injured and

reached permanent total disability (PTD) prior to age

sixty-two, they were not entitled to supplemental benefits

after age sixty-five. In this consolidated appeal, appellants

also challenge the _ constitutionality of section

440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1.,

Florida Statutes (1995), the authority for the termination

of appellants’ supplemental benefits, on supremacy clause

and equal protection grounds. We affirm for the reasons

set forth in this opinion.

Appellants both suffered industrial accidents render-

ing them permanently and totally disabled before the age

of sixty-two. Both appellants collected disability payments

and both insurance carriers terminated the payments of

supplemental benefits for PTD on the basis of section

440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1.,

App. 3

Florida Statutes (1995), respectively.’ Appellants sought

payment of the supplemental benefits for PTD after they

reached the age of sixty-five, and the respective judges of

compensation claims denied appellants’ claims pursuant to

this court’s opinion in Wilkins v. Broward County School

Board, 754 So. 2d 50, 52 (Fla. 1st DCA 2000), rev. den., 766

So. 2d 224 (Fla. 2000) (holding that “where a claimant is

injured and reaches PTD prior to age 62, the claimant is

not entitled to supplemental benefits after age 65.”).

Appellants initially sought reversal of the JCC’s denial of

benefits on the grounds that Wilkins was not controlling

because there was a horizontal conflict between sections

440.15(1)(e)1. and 440.15(10), or that there was a vertical

conflict between section 440.15(1)(e)1l. and 42 U.S.C.

section 424a. Appellants’ counsel, however, properly

conceded at oral argument that should this court reject the

constitutional challenges to the statutes at issue, Wilkins

does control and stare decisis requires this court to affirm

the orders. -

Appellants contend that section 440.15(1)(e)1., Florida

Statutes (1991) and section 440.15(1)(f)1., Florida Statutes

(1995), as construed by this court, are in violation of the

supremacy clause of the United States Constitution and/or

their equa) protection rights. The JCCs properly found

that they lacked jurisdiction to determine whether the

statutes are unconstitutional. Hensley v. Punta Gorda, 686

* The language at issue, identical in both versions of the statute, is

as follows: “Entitlement to these supplemental payments shall cease at

age 62 if the employee is eligible for social security benefits under 42

U.S.C. ss. 402 and 423, whether or not the employee has applied for

such benefits.” § 440.15(1)e)1., Fla. Stat. (1991), and § 440.15(1)(f)1.,

Fla. Stat. (1995).

App. 4

So. 2d 724, 725 (Fla. lst DCA 1997) (“As an administrative

officer vested with only certain limited quasi-judicial

powers, a judge of compensation claims does not have

jurisdiction to declare a portion of the Florida Workers’

Compensation Act unconstitutional or violative of a federal

statute.”) (citing Sasso v. Ram Prop. Mgmt., 431 So. 2d

204, 207-208 (Fla. lst DCA 1983), approved 452 So.2d 932

(Fla.1984)); Bradley v. Hurricane Rest., 670 So. 2d 162,

164 (Fla. lst DCA 1996). Appellants’ constitutional chal-

lenges to the statutes are, therefore, properly before this

court. Sasso, 431 So. 2d at 208.

Appellants first contend that the termination of

benefits under sections 440.15(1)(e)1., Florida Statutes

(1991) and 440.15(1)(f)1., Florida Statutes (1995) is pre-

cluded by the Supremacy Clause of the United States

Constitution because the statutes are preempted by

federal law, specifically, 42 U.S.C. section 424a(d). The

Supremacy Clause, found in article VI, clause 2 of the

United States Constitution, provides that:

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made,

under the Authority of the United States, shall

be the supreme Law of the Land; and the Judges

in every State shall be bound thereby, any Thing

in the Constitution or Laws of any State to the

Contrary notwithstanding.

U.S. Const. art. VI, cl. 2. “Consequently, Congress has the

constitutional power to preempt state law.” United States

v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d 359, 361

(11th Cir. 1994) (citing Louisiana Pub. Serv. Comm’n v.

FCC, 476 U.S. 355, 368 (1986)).

App. 5

Prior to 1981, the Social Security Act contained a

provision for the coordination of workers’ compensation

disability benefits with social security disability benefits

by providing that the combination of the two benefits could

not exceed 80% of a claimant’s average current earnings. If

the benefits exceeded the 80% cap, the social security

benefits would be offset to the 80% level. 42 U.S.C.

§ 424a(a) (1976). This coordination of benefits, however,

contained an exception which allowed the states to choose

their own method of coordinating both workers’ compensa-

tion and social security benefits. That coordination of

benefits has become known as a “reverse offset,” and it

enables states to reduce the amount of workers’ compensa-

tion payments by making social security benefits payable

before the workers’ compensation benefits. Florida was

among the states which exercised the option to reverse the

federal offset by enacting section 440.15(10), Florida

Statutes (1980). Under section 440.15(10), the combination

of workers’ compensation benefits and social security

benefits could not exceed 80% of an employee’s average

weekly wage. The social security benefit is paid first, and

the “offset,” if any, inures to the benefit of the em-

ployer/carrier at the 80% level. The offset ceases at age

sixty-two.

In 1981, Congress amended 42 U.S.C. section 424a, as

found in the Omnibus Budget Reconciliation Act of 1981.

Congress changed the age during which the reduction of

social security benefits could be made on account of the

receipt of workers’ compensation benefits from age sixty-

two to age sixty-five. Congress also added the following

language to 42 U.S.C. section 424a:

App. 6

(d) Exception

The reduction of benefits required by this section

shall not be made if the law or plan described in

subsection (a)(2) of this section under which a

periodic benefit is payable provides for the reduc-

tion thereof when anyone is entitled to benefits

under this subchapter on the basis of the wages

and self-employment income of an individual en-

titled to benefits under section 423 of this title,

and such law or plan so provided on February 18,

1981.

Through this amendment, Congress abolished the reverse

offset for those states that had not already enacted laws

for such an offset. The states, including Florida, that had

already enacted reverse offset provisions were “grand-

fathered” in and allowed to continue to apply reverse

offsets, i.e., reduce workers’ compensation benefits on

account of the receipt of social security benefits.

Appellants challenge the validity of section

440.15(1)(e)1. which was first enacted in 1990 and pro-

vides for the cessation of the supplemental benefits for

PTD upon an employee’s sixty-second birthday. Appellants

argue that the statute operates as a reverse offset under

section 440.15(10) because it reduces the workers’ compen-

sation benefits on account of the receipt of social security

benefits, and that Florida cannot reduce such benefits

unless the offset was a law in 1981. We hold that the

termination of supplemental benefits pursuant to

440.15(1)(e)1., Florida Statutes (1991) and _ section

440.15(1)(f)1., Florida Statutes (1995) is not a reverse

offset pursuant to section 440.15(10), and therefore, is not

in conflict with 42 U.S.C. 424. Based on the analysis that

App. 7

follows, we find that the statutory provisions are also not

preempted by 42 U.S.C. section 424a(d).

Congress’s constitutional power to preempt state law

is not unlimited. “A federal statute does not supersede

state law unless that is the clear and whole purpose of

Congress.” Lot 5, 23 F.3d at 361 (citing Cipollone v. Liggett

Group, Inc., 505 U.S. 504 (1992)). In Cipollone, the United

States Supreme Court recognized that consideration of

issues arising under the Supremacy Clause begins with

the “assumption that the historic police powers of the

States [are] not to be superseded by... Federal Act unless

that [is] the clear and manifest purpose of Congress.” 505

U.S. at 516 (quoting Rice v. Santa Fe Elevator Corp., 331

~U.S. 218, 230 (1947)). “Accordingly, the purpose of Con-

gress is the ultimate touchstone of pre-emption analysis.”

Id. (citations and internal quotations omitted).

The intent of Congress may be “explicitly stated in the

statute’s language or implicitly contained in its structure

and purpose.” Jd. (citation and internal quotations omit-

ted). Further, in the absence of an express command by

Congress, state law will be pre-empted if the law “actually

conflicts with federal law (citation omitted) or if federal

law so thoroughly occupies a legislative field as to make

reasonable the inference that Congress left no room for the

States to supplement it.” Jd. (citations and internal quota-

tions omitted).

In State v. Stepansky, 761 So. 2d 1027 (Fla. 2000), the

Florida Supreme Court noted several ways in which

federal law can preempt state law. First, if the scheme of

federal regulation is so pervasive as to make reasonable

the inference that Congress left no room for the States to

supplement it; second, if the federal legislation touches a

App. 8

field in which the federal interest is so dominant that the

federal system will be assumed to preclude enforcement of

state laws on the same subject; or third, the “object

sought” by the federal legislation may reveal the same

purpose. Jd. at 1033-1034 (citations omitted). The excep-

tion created by Congress in 42 U.S.C. 424a(d) is not so

pervasive as to require this court to infer that Congress

intended to preclude the State of Florida from ever termi-

nating benefits such as those terminated by 440.15(1)(e)1.,

Florida Statutes (1991) and section 440.15(1)(f)1., Florida

Statutes (1995), and not offset by section 440.15(10). To

the contrary, it seems clear that the purpose of 42 U.S.C.

section 424a(d) was to avoid a double offset by allowing

the states to shift costs to the federal government through

a reverse offset program. Harris v. State of Washington,

843 P.2d 1056, 1060 (Wa. 1993) (citing Sciarotta v. Bowen,

837 F2d 185, 140 (3d Cir. 1988) (quoting Swain v.

Schweiker, 676 F.2d 543 (11th Cir.), cert. denied, 459 U.S.

991 (1982)).

In Harris, the Supreme Court of Washington rejected

a similar challenge after a thorough analysis of the issue.

The argument advanced in Harris is similar to the one

made before this court, i.e., that 42 U.S.C. section 424a(d)

is evidence of congressional intent to preempt state re-

verse offsets of federal benefits. As found in Harris, 42

U.S.C. section 424a not only fails to express an intent to

occupy the field of coordinating benefits, it “provides for

some types of state reverse offsets, thus indicating a

Congressional interest in sharing the field of benefit

coordination.” Id. at 1061 (emphasis supplied).

We find no inconsistency between the Florida statutes

and the purposes and objectives of the federal law, 42

U.S.C. section 424a, which explicitly coordinates benefits

App. 9

to avoid duplication. The Florida statutes, by avoiding

duplicative benefits, are consistent with federal law. We

hold that 42 U.S.C. section 424a does not preempt sections

440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1.,

Florida Statutes (1995).

Appellants alternatively argue that the cessation of

the cost of living supplements for PTD, under sections

440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1.,

Florida Statutes (1995), violates the constitutional guar-

antees of equal protection of the law. The equal protection

clauses of the state and federal constitutions guarantee

that all citizens similarly situated be treated alike. Art. I,

§ 2, Fla. Const.; U.S. Const. amend. XIV, §1. Because

appellants’ challenge is based on age discrimination, it is

subject to the rational basis review.”

We find that the termination of PTD supplemental

benefits at the age of sixty-two, pursuant to sections

440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1.,

Florida Statutes (1995), survives the rational basis test

because it is reasonably related to a permissible govern-

ment objective. In Wilkins, this court noted that the

legislature “could have legitimately assumed that in these

* Initially, we note that age is not a suspect class. State v. T.M., 761

So. 2d 1140, 1145-1146 (Fla. 2nd DCA 2000) (citing Gregory v. Ashcroft,

501 U.S. 452, 470 (1991)); State v. Walborn, 729 So. 2d 504, 505 (Fla.

2nd DCA 1999); Sasso v. Ram Property Management, 431 So. 2d 204

(Fla. lst DCA 1983) (noting that “age has not as yet, for federal equal

protection purposes, been determined either a suspect or quasi/suspect

class.”). “Age limitations and restrictions may survive a constitutional

challenge and be enforced if they pass the ‘rational basis’ test, i.e., the

age classifications are reasonably related to a permissible governmental

objective.” Wright v. State, 739 So. 2d 1230, 1232 (Fla. 1st DCA 1999).

App. 10

cases [where a claimant is injured and reaches PTD prior

to age 62] a claimant would not continue to work after a

traditional retirement age.” 754 So. 2d at 52. Further, the

Final Staff Analysis and Economic Impact Statement for

the original enactment of the statutory language at issue in

section 440.15(1)e)1. states that the objective of the statute

was to lower the premium costs for workers’ compensation

coverage. Fla. H.R. Comm. on Commerce, CS/HB 3809 and

CS/HBs 2671, 1099, 1499, 1611, 2265, 2871, 2957, 3007, and

31385 (1990) Staff Analysis (final July 18, 1990) (“The bill

revises the Workers’ Compensation law in order to address

the rising costs of worker’s compensation insurance in the

state. Though some reduction in benefit levels was necessary

to bring about the desired reduction in costs, benefit levels

were cut only as a last resort.”). The goal of reducing the

costs of premiums is not, “under the rational basis test, an

illegitimate or irrelevant consideration.” Sasso, 431 So. 2d at

220. Appellants have failed to meet their burden in establish-

ing that there is no legitimate state purpose furthered by the

termination of PTD supplemental benefits provision. We hold

that the legislature’s statutory objective satisfies the rational

basis test and that sections 440.15(1)\(e)1., Florida Statutes

(1991) and 440.15(1Xf)1., Florida Statutes (1995) do not

violate equal protection.

Accordingly, we find that Wilkins controls because

both claimants herein were injured and reached PTD prior

to age sixty-two, and they are, therefore, not entitled to

supplemental benefits after age sixty-five; we further find

the constitutional challenges lacking in merit; and we

affirm the orders on appeal.

BENTON and POLSTON, JJ., CONCUR.

————

App. 11

Supreme Court of Florida

WEDNESDAY, JULY 16, 2003

CASE NO.: SC03-198

Lower Tribunal Nos.:

1D02-368, 1D01-3512

WINTON HARRELL, vs. FLORIDA CONSTRUC-

ET AL. TION SPECIALISTS, ET

AL.

Petitioner(s) Respondent(s)

This cause having heretofore been submitted to the

Court on jurisdictional briefs and portions of the record

ceemed necessary to reflect jurisdiction under Article V,

Section 3(b), Florida Constitution, and the court having

determined that it should decline to accept jurisdiction,

it is ordered that the Petition for Review is denied.

No Motion for Rehearing will be entertained by the

Court. See Fla. R. App. P. 9.330(d).

WELLS, PARIENTE, QUINCE, CANTERO and BELL, JJ.,

concur ANSTEAD, C.J., and LEWIS J ., dissent.

Petitioners’ Motion for Attorney’s Fees is hereby

denied.

ANSTEAD, C.J., and WELLS, PARIENTE, QUINCE,

CANTERO and BELL, JJ., concur

LEWIS, J., dissents.

App. 12

A True Copy

Test:

/s/ Thomas D. Hall

Thomas D. Hall [SEAL]

Clerk, Supreme Court

bh

Served:

HON. JON S. WHEELER, MARY LALLEY WAKEMAN

CLERK HON. KATHRYN S. PECKO,

ARTHUR C. BEAL, JR. JUDGE

RICHARD A. SICKING HON. JOHN J. LAZZARA,

WILLIAM C. ROBINSON JUDGE

App. 13

20 C.F.R. § 404.408(b) provides:

(2) The reduction of a benefit otherwise

required by paragraph (a)(2) of this section is

not to be made if:

(i) The law or plan under which the peri-

odic public disability benefit is payable pro-

vides for the reduction of that benefit when

anyone is entitled to a benefit under title IT of

the Act on the basis of the earnings record of

an individual entitled to a disability insurance

benefit under section 223 of the Act and that

law or plan so provided on February 18, 1981.

(The reduction required by paragraph (a)(2) of

this section will not be affected by public dis-

ability reduction provisions not actually in ef-

fect on this date or by changes made after

February 18, 1981, to provisions that were in

effect on this date providing for the reduction

of benefits previously not subject to a reduc-

tion);