Can Employer's Lien Recovery Be Capped at Net Recovery As the Amount to Be Satisfied Before Carrier Recommences Full Payment of Future Benefits ?
In Aetna Insurance Co. v. Norman, 468 So. 2d 226, 228 (Fla. 1985), the court held that the employer's lien on recovery was capped at the claimant's net recovery and that the court "should have used the net tort recovery by the claimant as the amount which must be satisfied before the carrier need recommence full payment of future benefits." Id.; see Bussert v. Holley, 653 So. 2d 1146, 1147 (Fla. 4th DCA 1995).
Although this Court decided Norman under a prior version of section 440.39, neither the earlier statute nor the present statute specifically addresses the issue of the cap on the lienor's recovery.
However, "the legislature is presumed to know the judicial constructions of a law when enacting a new version of that law." Brannon v. Tampa Tribune, 711 So. 2d 97, 100 (Fla. 1st DCA 1998); see Schwartz v. Geico Gen. Ins. Co., 712 So. 2d 773, 775 (Fla. 4th DCA 1998).
"Furthermore, the legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version." Brannon, 711 So. 2d at 100.
Accordingly, we find nothing in the 1989 legislative changes to section 440.39 that would, either expressly or by implication, overturn this Court's holding in Norman, 468 So. 2d at 228.
Norman therefore represents a binding judicial construction of the equitable distribution statute that remains unchanged after the 1989 amendments.
In further support of its interpretation that the lien should be capped at a "percentage of a percentage," the First District stated that "to conclude otherwise and adopt the E/SA's interpretation of the statute, the E/SA would be entitled to recover all that Lombardi received in the civil action, which would necessarily include damages for pain and suffering and loss of consortium." Lombardi, 738 So. 2d at 496.
However, we specifically addressed this issue in Norman and determined that the statute does not permit the trial court to offset or prorate the value of pain and suffering or derivative claims from the net recovery received from a third party tort-feasor. 468 So. 2d at 228.