This case came on sua sponte to correct scrivener's errors in the final Order entered August 8, 1994 by the undersigned as follows:

1. At p. 53 paragraph 6 the date September 21 1993 is amended to read September 21 1992;

2. At p. 53 paragraph 6 the award of penalties is stricken in that controverts and/or Notices of Denial of all compensation were timely filed. This was an oversight in that Claimant Counsel agreed in the pre-final hearing conference that penalties were not being claimed because they were not applicable or owed. Thus paragraph 6 is amended to allow only interest on all past indemnity awarded no penalties;

3. Finally also at p. 53 paragraph 9 the award of penalties is stricken for the same reasons as set forth in paragraph 2 above. Thus paragraph 9 is amended to allow only interest on all past indemnity awarded not penalties.

After due notice to all parties a final hearing on the merits of this claim was held on June 24 1994 in St. Petersburg Florida.

The claim was for correct determination of average weekly wage and compensation rate. The parties stipulated that the claimant was at the maximum compensation rate. It was the position of the claimant that her average weekly wage should include the value of four fringe benefits which were not included; the value of her sick leave; the value of a general pension; the value of a disability in-line-of-duty pension; and the value of a supplemental pension. The claimant was involved in a shooting incident in the line-of-duty on March 25 1986 which the claimant asserts was an actual physical injury which would support her mental condition. Additionally the claimant was involved in a low back injury on May 12 1986 and the claimant asserts that this injury aggravated her pre-existing mental condition. The employer/carrier asserts that the statute of limitations ran on the May 12 1986 accident. Dr. Machler was authorized for the March 25 1986 incident but not for the May 12 1986 incident and the claimant requested authorization and payment of Dr. Machler's past bills which were paid by the carrier until May 15 1992. On April 30 1992 the employer/carrier notified Dr. Machler that they would not be paying him subsequent to that date based on the Grace decision. If the psychiatric condition is found compensable the parties agree to administratively handle any compensation that may be due and owing as well as authorizing a physician to treat for that condition. The parties stipulated that there was an issue as to whether or not the claimant was at maximum medical improvement since Dr. Machler found she attained maximum medical improvement on September 22 1992 but Dr. Sprehe and Dr. Stein indicated that she was not yet at maximum medical improvement Additionally the claimant was claiming penalties interest costs and Counsel's fees.

The following documentary items were received into evidence:

1. The pretrial stipulation sheet dated February 9 1993 together with the documentary items required by rule 4.180 (Court's Exhibit Number One).

2. Motion and Order dated January 11 1993 (Court's Exhibit Number Two).

3. The deposition of Daniel Sprehe M.D. taken June 3 1994 (Claimant's Exhibit Number One).

4. The deposition of Theodore Machler M.D. taken October 15 1993 (Claimant's Exhibit Number Two).

5. Wage Loss Composite 1987 - 1994 (Claimant's Exhibit Number Three)

6. The deposition of Dennis Acker taken July 19 1993 (Claimant's Exhibit Number Four).

7. The deposition of Mark Cairns taken July 19 1993 (claimant's Exhibit Number Five).

8. The deposition of Robert Breest taken August 20 1993 (Claimant's Exhibit Number Six).

9. Claimant's Daily Log and Calendar (Claimant's Exhibit Number Seven)

10. Composite February 11 1987 and June 30 1986 Change of Action Forms (Claimant's Exhibit Number Eight).

11. Claimant's deposition taken September 4 1992 (Employer/Carrier s Exhibit Number One).

12. Claimant's deposition taken June 2 1994 (Employer/Carrier s Exhibit Number Two).

13. The deposition of Barbara A. Stein M.D. taken December 10 1993 (Employer/Carrier s Exhibit Number Three).

14. (3) Video Tapes (Employer/Carrier s Exhibit Number Four).

15. The deposition of Jon Marcin taken October 2 1992 (Joint Exhibit Number One).

16. The depositions of Dan Deignan Mike Laursen Leo Schrader taken October 2 1992 (Joint Exhibit Number Two).

17. The deposition of Kevin Butler M.D. taken August 18 1993 (Joint Exhibit Number Three).

18. The deposition of Harold Smith Ph.D. taken July 7 1993 (Joint Exhibit Number Four).

19. Medical Composite (Joint Exhibit Number Five).

20. The deposition of Jon Marcin taken July 27 1993 (Joint Exhibit Number Six).

21. The depositions of Kent Simmons and D. Lee Cottrell taken July 27 1993 (Joint Exhibit Number Seven).

22. Payout Sheet (Joint Exhibit Number Eight).

23. Checks paid to Claimant from Carrier (Joint Exhibit Number Nine).

At the final hearing the claimant Judy Acker Catherine Lockridge and Jon Marcin appeared and testified before me.

In making my findings of fact and conclusions of law I have carefully considered and weighed all the evidence presented to me. I have resolved all of the conflicts in the testimony and evidence. Based on the foregoing and the applicable law I make the following findings:

1. Those items to which the parties were in agreement on the pretrial stipulation sheet are accepted and adopted as findings of fact.

2. The claimant had been employed as a City of Clearwater police officer for approximately 7-1/2 years as of March 25 1986. The claimant alleges that she has sustained two industrial accidents arising out of and in the course of her employment. The first incident occurred on March 25 1986 when the claimant was at lunch with her now ex-husband Dennis Acker. The claimant was dispatched to the Countryside Driver's License Building where a man was under suspicion. Dennis Acker was the claimant's back-up officer. As the claimant approached the suspect the suspect began to reach into an open briefcase at his feet. Having been advised that the suspect was armed and dangerous the claimant lunged toward him. The claimant then attempted to physically restrain the suspect as he continued to reach into the briefcase. The suspect also attempted to remove the claimant's revolver from her holster. The back-up officer observed the suspect attempting to disarm the claimant while also reaching into the briefcase and responded by shooting the suspect. The claimant was holding the suspect in a headlock and witnessed one of the shots pass by her and hit the suspect's chest. The claimant and Dennis Acker both testified concerning the physical struggle the claimant engaged in with the suspect. The suspect died at the scene. While going through the suspect's pockets the claimant got some of the suspect's blood on her hands. The blood was washed off after the incident. According to the claimant an investigation determined that in the briefcase there was a fully loaded 45 caliber semi-automatic pistol with a round in the chamber and the safety taped to the handle so that the revolver was in the constant "ready" condition. The claimant asserts that the March 25 1986 accident included physical injuries including bruising and the claimant being "sore all over" which the claimant described in her daily log and calendar.

3. The claimant was referred to a psychologist Harold Smith Ph.D. for an evaluation after the shooting incident. The claimant saw Dr. Smith on March 26 1986 March 27 1986 and April 3 1986. Dr. Smith diagnosed depression and post-traumatic stress disorder (PTSD) but cleared the claimant to return to work full-duty as a police officer approximately April 9 1986. Dr. Smith attributed her PTSD to "the overwhelming threat to her existence to which she was exposed. This was an event outside the range of normal human experience. This is something that most people are not exposed to life-threatening struggles where another person then dies. And it could have been a situation where she could have dies. So that was the cause - causation event was the struggle she went through." The claimant returned to work and did not receive any additional psychological or psychiatric care prior to being involved in the second work related incident. Dr. Smith testified that he was only authorized for three appointments with the claimant.

4. On May 12 1986 the claimant while walking in the police station testified that she "spaced out" and sustained an unexplained fall injuring her low back. The claimant testified at the final hearing that she slipped on a waxed floor which resulted in her doing a "split" onto the floor. The claimant testified that she injured her left knee and low back as a result of this fall. The claimant continued to work until May 19 1986. The claimant was treated by an authorized walk-in clinic and then was referred to Patrick Logue M.D. Dr. Logue is an orthopaedic surgeon who saw the claimant on five occasions in June of 1986. Dr. Logue diagnosed low back strain. Dr. Logue released the claimant to return to work full-duty with no restrictions from the low back strain on June 28 1986. Subsequent to the May 12 1986 accident the claimant returned to Dr. Smith on June 24 1986 and began treatment. Dr. Smith later referred the claimant to a psychiatrist Theodore Machler M.D. The claimant did receive a psychiatric evaluation on July 25 1986. The claimant has continued under the care of Dr. Machler until the present time for post-traumatic stress. In a report dated July 31 1986 Dr. Machler stated that the claimant was permanently and totally disabled and it was expected that the psychiatric condition would be chronic. The claimant retired with an "in-line-of-duty disability pension" as of September 3 1986.

5. The employer/carrier had initially accepted the psychiatric condition as compensable in light of the fact that the claimant got blood on her hands as a result of the shooting incident. The employer/carrier has receded from that position citing City of Homes Beach v. Grace 598 So.2d 71 (Fla 1992) as controlling to allege that the claimant did not suffer an accident arising out of and in the course of her employment on March 25 1986. The employer/carrier has alleged that the claimant did not suffer a compensable accident because her injury is solely a psychiatric injury without a physical injury. Therefore the employer/carrier has asserted that the injury is not compensable by statute nor the case law supported by Grace and the line of cases that hold a psychiatric injury without a physical injury is not compensable. The claimant relies on the line of cases cited in Grace which the Supreme Court of Florida did not over-rule including Oolight Concrete Company v. Carver 145 So.2d 733 (Fla 1962); Watson v. Melman Inc. 106 So.2d 433 (Fla APP 1958) Cert. Den. 111 So.2d 40; Lyng v. Rao 72 So.2d 53 (Fla 1952); Modes v. R.H. Wright & Son. Inc. 90 So.2d 330 (Fla 1956). The claimant asserts that in each of the above cases there was only some physical or organic injury and the physical injury was relatively minor but each claimant sustained mental or psychiatric injuries on which compensation was based.

6. In the claimant's initial deposition taken September 4 1992 she indicated that she had suffered no physical injury as a result of the shooting incident. The claimant produced a daily log and calendar at the final hearing which she testified that she kept as a police officer. The claimant indicated that as a police officer she was called on to prepare reports. With knowledge that she would have to report what happened on March 25 1986 as well as to help her adjust and cope after her accident she maintained a daily log and kept notes on a calendar. The daily log details and provides information about her life after the shooting and includes as follows:

A. 4/2/86 - "Can't relax. Still hurt all over".

B. 4/12/86 - "My stomach and head hurt so bad. Still ache".

C. Description of shooting and fight - page 4 - "in the struggle we fell to the floor. I kept wondering why the case was still there. Why doesn't someone get it away from him where is Dennis someone anyone. I wondered does Dennis know he has a gun is he going to come in and get shot not knowing he was going for a gun."

"We're on the floor still scuffling me on my knees he was in a sitting up position."

D. Page 6 - "As I emptied his pockets I saw blood on my hands I thought "just don't tell me he's gay - 6.7%".

E. Page 9 - "There was also a point where I felt such anger toward him. For wanting to fight with a cop in uniform for wanting to kill me..."

F. Page 12 - "It hurt to stand but I couldn't sit."

G. Page 19 - "Good morning. Happy Anniversary Honey. Yeah we wait. We shower and get ready to go. I change clothes six times I don't do that! We were going to dinner tonight and oh boy! No sleeveless blouses the black and blue mark looks bad. Body still hurts all over - wish I could relax."

7. The claimant alleges that each of the above notes recorded at the time Ms. Acker prepared the notes and kept the calendar supports her position that she did suffer a physical injury and trauma to her body. The claimant's husband Dennis Acker was the back-up officer who shot and killed the suspect. In his deposition he confirmed the bruise as noted by the claimant in her daily log.

8. The claimant asserts that the injuries to her body that happened on March 25 1986 were physical injuries which at a minimum were equal to if not more than the injuries sustained by the claimants in the Oolight Concrete and Watson cases cited above. The claimant asserts that the facts of the March 1986 accident and the physical injuries can be distinguished from Grace where the record on appeal only supported a psychiatric injury with no actual trauma or physical injury.

9. Dr. Daniel Sprehe M.D. a forensic psychiatrist testified by deposition.

Dr. Sprehe testified that the March 25 1986 shooting incident was "hand-to-hand combat" and a "life or death struggle" with the claimant trying to prevent the suspect from reaching into his briefcase to get a gun and according to Dr. Sprehe's history the claimant allegedly sustained abrasions and contusions which he considered to be actual physical injuries. Dr. Sprehe testified that the abrasions and arm bruise coupled with the life threatening situation beyond the normal range of human experience were all contributing causal factors in his diagnosis of PTSD. Dr. Sprehe indicated that the life or death struggle with the criminal was a frightening condition which is outside the range of normal human experience and as such it had significance in her physical condition. Dr. Sprehe testified that that met the criteria of the DSM-IV. Dr. Sprehe testified that the struggle described to him between the claimant and the suspect constituted physical trauma. Dr. Sprehe indicated that the claimant got up from the struggle when it was over with a lot of aching bruising abrasions et cetera. As such Dr. Sprehe testified that that was physical trauma. Dr. Sprehe testified that in his opinion the post-traumatic stress syndrome was as a result of the physical involvement and did not result solely from a mental stimulus. Dr. Sprehe testified that the struggle was a frightening episode that traumatized the claimant psychologically and precipitated her condition. Dr. Sprehe further indicated that the May 12 1986 fall exacerbated her pre-existing PTSD but he was unable to determine if it contributed a permanent or temporary aggravation because in his opinion the claimant had not reached maximum medical improvement. Dr. Sprehe was unable to allocate by percentage what portion of her PTSD was caused by the March 25 1986 incident and what percentage was caused by the May 12 1986 accident. Dr. Sprehe conceded on cross examination that within reasonable medical probability the claimant would have sustained the PTSD from the March 25 1986 incident and that the treatment would have been the same even absent any physical injury and that the claimant's PTSD worsening and progression of her symptoms would have occurred regardless of the May 12 1986 fall.

10. Dr. Theodore J. Machler M.D. the treating psychiatrist was authorized by the employer/carrier until the decision of City of Homes Beach v. Grace was rendered. Based on Grace the City controverted the claimant's right to future medical benefits under the Workers Compensation Act. Dr. Machler testified that the claimant had post-traumatic stress syndrome which includes depression as a factor. Dr. Machler testified that the accident of May 12 1986 contributed to the psychiatric condition. Dr. Machler testified that the claimant was so pre-occupied with the initial traumatic event that she did not place a great deal of emphasis on the May 12 1986 accident at her initial appointment with him on July 25 1986. Dr. Machler indicated that part of that may have been that she recognized that she was there for a psychiatric evaluation and medication. It may also have been the way the interview was structured in that Dr. Machler was putting the emphasis on the initial event. In subsequent appointments with Dr. Machler even through November of 1988 she made a lot of emphasis about her somatic problems and about going to an orthopaedic surgeon. She was told that her x-rays were normal but a CAT scan showed vertebras rubbing against each other and she was advised to have physical therapy and she was apprehensive about going to physical therapy. Dr. Machler testified within a reasonable degree of medical probability that the claimant had a psychiatric condition pre-dating the May 12 1986 accident but that the May 12 1986 accident aggravated and made it worse. Dr. Machler also testified that in discussing these events in some detail she had seen herself as becoming more clumsy since the initial March 1986 incident and did not know if the accident her clumsiness or her lack of coordination or her pre-occupation with other things caused her to fall. Dr. Machler rendered an opinion that the claimant attained maximum medical improvement on September 22 1992 but the claimant has asserted that she has not yet attained maximum medical improvement. Both independent medical evaluators Drs. Sprehe and Stein have testified that the claimant has not attained maximum medical improvement.

11. The claimant filed wage loss request forms from the date of her separation from employment to the present time. It is the position of the claimant that these benefits should be classified as temporary partial/wage loss benefits to date. Alternatively if the date of maximum medical improvement as stated by Dr. Machler is accepted then the claimant asserts that all benefits up to September 22 1992 should be classified as temporary partial benefits and all those after September 22 1992 should be classified as wage loss benefits.

12. In September of 1992 the carrier notified Dr. Machler that it would not longer be responsible for the psychiatric care of the claimant after April 30 1992. As such the claimant asserts that the employer/carrier should be responsible for Dr. Machler's treatment subsequent to April 30 1992.

13. Dr. Machler and Dr. Sprehe both testified that given the claimant's description that the "most logical cause" of the claimant's unexplained fall of May 12 1986 was the symptom pattern of claimant's PTSD resulting from the March 25 1986 incident.

14. The employer/carrier asserts that the claimant's inability to return to work was not due to the residuals of her low back injury but due to the progression of her PTSD. As indicated earlier the claimant returned to Dr. Smith on June 17th and June 19th 1986 but Dr. Smith felt that the claimant needed more sophisticated psychiatric treatment as a result of her PTSD and referred the claimant to two psychiatrists Theodore Machler M.D. and Kevin Butler M.D.

15. The claimant only saw Dr. Butler on three occasions July 29 1986 August 7 1986 and August 21 1986. Dr. Butler testified that "her reason for consulting him was the after effects of the shooting incident and (the patient intake form) makes no reference whatsoever to a physical injury arising out of the March 25 1986 incident. Later in the questionnaire the claimant recounted the May 12 1986 fall and reported back pain as the result." Dr. Butler rendered no opinion as to whether the injury sustained by the claimant in the May 12 1986 fall exacerbated or aggravated her PTSD. Dr. Butler did opine within a reasonable degree of medical probability that the March 25 1986 shooting incident was a significant causal factor in producing claimant's psychiatric condition though marital problems and her back problems could also have been a factor. While Dr. Butler diagnosed major depression he agreed that the claimant's symptoms were compatible with PTSD.

16. Drs. Smith Machler and Butler all agreed that the claimant was unfit for duty as a law enforcement officer and she retired with an in-line-of-duty disability pension as indicated earlier. Dr. Smith's letter to the City of July 31 1986 attributed her PTSD to the March 25 1986 shooting incident and made no mention of the May 12 1986 fall. It is apparent from reviewing the medical records that the claimant never specifically nor contemporaneously contended to either Dr. Smith Dr. Butler or Dr. Machler that the May 12 1986 accident and/or the physical effects of the May 12 1986 precipitated or aggravated her psychiatric symptoms. In fact the claimant only mentioned the May 12 1986 fall once on the June 17 1986 evaluation to Dr. Smith and Dr. Smith records no complaints of low back pain on that occasion. The claimant stated to Dr. Butler that the low back injury caused pain but she did not causally relate her psychiatric symptoms to the low back injury to Dr. Butler. Dr. Machler first recorded mention of her low back in office notes from November of 1987. Dr. Machler testified by deposition that the May 12 1986 accident aggravated a pre-existing psychiatric condition It would appear from Dr. Machler's deposition that all of his medical billings and reports had been submitted using the March 25 1986 date of accident.

17. Drs. Machler and Sprehe testified that claimant's memory of the May 12 1986 incident and the causative role it may have played was obscured by her focus on the initial traumatic event and that its effect did not become clear to the claimant or them until recently. Dr. Machler rendered an opinion that the claimant was permanently totally disabled as of her maximum medical improvement date of September 22 1992. Dr. Machler's opinion that the claimant is permanently totally disabled is based on his opinion that the claimant will be unable to hold a regular job but if she is to work a job it will require minimum contact with people structured work tasks and arms length supervision which takes into account her special needs.

18. The employer/carrier asserts that the claimant did not indicate in her initial deposition that she sustained any actual physical injury in the shooting incident. At the June 2 1994 updated deposition the claimant testified that she later discovered a diary she kept that indicated that for several days after the shooting incident she was sore and hurt all over.

19. The employer/carrier has asserted that the two year statute of limitations has expired prior to filing of the claim for benefits dated February 8 1993 for the May 12 1986 accident. It is clear from the medical records that the claimant went without authorized medical treatment for her low back strain between her last visit with Dr. Logue on June 28 1986 until November 4 1987 when she sought an evaluation by H. Gerard Siek M.D. also an orthopaedic surgeon. Dr. Siek diagnosed a low back strain but referred the claimant for a lumbar MRI and a brief course of physical therapy. The claimant obtained the MRI and completed her physical therapy and returned to Dr. Siek's office on November 18 1987. The claimant discussed the results of the MRI with Dr. Siek which reflected the presence of degenerative arthritis in her lumbar spine but no herniated disk. The claimant returned to Dr. Siek's office on January 6 1988 but left the office before Dr. Siek could see her due to his being so late for her appointment. Therefore the employer/carrier asserts that the claimant has had no authorized treatment for her low back since Dr. Siek's November 18 1987 office visit. In other words the claimant has received no treatment for her low back injury for almost seven years. It is undisputed by the claimant that the only medical bills submitted and paid on the May 12 1986 accident relate to the claimant's physical injuries including the treatment of Drs. Logue and Siek as well as medical providers that provided diagnostic testing pursuant to their referral. There is no question that more than two years elapsed from the time of the last authorized low back treatment to the filing of the claim dated February psychiatric condition caused by the March 25 1986 shooting incident.

20. Dr. Machler testified after reviewing his notes that the May 12 1986 low back condition aggravated the claimant's PTSD and that all of his visits were partly attributable to the May 12 1986 fall despite the fact that only the March 25 1986 date of accident appears on his billings. The claimant argues that since the employer/carrier continued to pay Dr. Machler through May of 1992 and in view of Dr. Machler's testimony that each visit billed was at least partly due to the psychological effects of the May 12 1986 accident that the claim for benefits dated February 8 1993 was within two years of the last medical provided. The last medical payment was in June of 1992 for a date of service of May 15 1992. Dr. Machler admitted that he was never authorized to treat the claimant for the May 12 1986 accident. 21. The employer/carrier asserts that despite the medical records of Drs. Logue and Siek describing to the contrary Dr. Machler has characterized the claimant's back injury as "significant." As such Dr. Machler has indicated that in his opinion the May 12 1986 fall exacerbated her pre-existing psychiatric condition. Dr. Machler explained that when the claimant experiences low back pain she focuses on it which irritates her continuing psychiatric problems. The employer/carrier asserts that Dr. Machler did not render an opinion as to the presence of a permanent psychiatric impairment pursuant to the AMA Guides and that Dr. Machler failed to allocate what portion of her permanent total disability was attributable to the psychiatric condition resulting from the original shooting incident versus the aggravation he found resulting from the May 12 1986 low back strain. Therefore the employer/carrier asserts that there is no testimony in the record to the effect that the claimant sustained any permanent impairment pursuant to the AMA Guides as a result of the May 12 1986 low back injury. The employer/carrier also asserts that there is no medical testimony that the claimant sustained a permanent physical impairment due to the May 12 1986 fall.

22. The claimant underwent a psychiatric evaluation by Barbara Stein M.D. which was supplemented by a psychological evaluation and diagnostic testing performed by Debra Crisp Ph. D. Those evaluations took place on November 19 1993 and December 1 1993 respectively. Dr. Stein diagnosed the claimant with depression PTSD personality disorder not otherwise specified and alcohol abuse. Dr. Stein opined that the claimant no longer manifests all the necessary components to satisfy the DSM-III criteria for PTSD though she still had some symptoms. Dr. Stein testified that the claimant had previously suffered from major depression but currently meets the DSM-III criteria for depressive disorder. Dr. Stein attributed the claimant's condition to the March 25 1986 shooting incident not any physical injury. Dr. Stein testified that the PTSD resulted from claimant's experience of a life-threatening situation outside the range of usual human experience which would likely have worsened with or without the May 12 1986 fall. Dr. Stein opined that the May 12 1986 fall led to a temporary exacerbation of the claimant's PTSD which resolved at least by January of 1988 without permanent aggravation. Dr. Stein based her opinion on the following factors:

A. No emphasis was placed on back related problems in her contacts with mental health providers and was mentioned only as a peripheral condition;

B. Claimant began seeing Dr. Machler in July of 1986 yet he had no knowledge of her May 12 1986 fall until November of 1987;

C. She was released to full-duty work from the May 12 1986 accident by Dr. Logue;

D. She was not physically restricted from performing her job;

E. She has not seen a physician for over 6 1/2 years for this condition.

Additionally Dr. Stein testified that the claimant is not permanently totally disabled rather that she sustained a Class 4 moderate to marked impairment and had not reached maximum medical improvement. Dr. Stein indicated that if the claimant would submit to treatment she could improve or possibly experience full recovery and that her inability to sustain work at one place would diminish if she were involved in more intensive treatment. Dr. Stein did observe the surveillance video tapes and reports and indicated that those depicted the claimant having close contact with customers and being given and accepting directions and instructions from a supervisor. In fact the employer/carrier assert that the claimant is shown doing the very activities that Dr. Machler had opined two weeks prior to that date that she could not do. The claimant testified that she had applied at Rent-A-Used on October 18 1993 and worked there through mid-May 1994 when she quit. The claimant's position with Rent-A-Used was clerk and helper. The claimant admitted that she failed to disclose her psychiatric illness and treatment by Dr. Machler on her application for fear that she would not get the job.

23. The employer/carrier asserts that there is a disparity between the qualification of Dr. Machler and Drs Stein and Sprehe. Dr. Machler is not a Board Certified physician even though he has practiced as a psychiatrist for thirty years in Pinellas County Florida. The employer/carrier asserts that Dr. Machler is claimant oriented. The employer/carrier asserts that Drs. Stein and Sprehe are both Board Certified and have a subspecialty in "forensic psychiatry." The employer/carrier also point to the fact that Drs. Stein and Sprehe have nothing to gain by way of testifying one way or the other since if the claim is found compensable they have been paid whereas Dr. Machler will not be paid for his services unless the claimant prevails.

24. Florida Statute Section 440.02(1) 1986 provides that "mental or nervous injury due to fright or excitement only...shall be deemed not to be an injury by accident arising out of the employment." In City of Homes Beach v. Grace 598 So.2d 71 (Fla 1992) the Florida Supreme Court stated that for a psychiatric condition to be compensable there must be (A) actual physical injury and (B) the condition must be "caused by" the actual physical injury and not mere fright or excitement only. In the case at bar the employer/carrier asserts that the claimant testified in her first deposition that she sustained no actual physical injury. Dennis Acker the claimant's husband testified that the claimant had a bruise on her right upper arm which he noticed on their April 1 1986 anniversary when the claimant was dressing to attend dinner. Both the claimant and her husband concluded that it must have occurred in the struggle which took place during the shooting incident. Dennis Acker recalled the claimant received no medical treatment whatsoever for the arm bruise. The claimant now asserts that her diary documents the bruise and the fact that her entire body was sore for days after the shooting incident. The claimant also testified that her psychological condition was as a result of her imminent fear of death or serious bodily harm not the right arm bruise. Therefore it is the position of the employer/carrier that the claimant sustained no "actual physical injury" in the March 25 1986 incident to support compensability of her psychological condition. Additionally the employer/carrier assert that in the event Court decides the claimant's right arm bruise and/or general body soreness constitutes sufficient "actual physical injury" to support compensability of a psychological condition that it is clear that the claimant's mental injury did not result from and was not caused by actual physical injury rather instead it was the fear of imminent serious bodily harm or death at the hands of the suspect. As such the employer/carrier assert that the claimant has failed to satisfy the two necessary elements required by the Supreme Court in Grace.

25. The employer/carrier cites Nationwide Insurance v. McGhee 597 So.2d 357 (Fla 1DCA 1992) to argue that the First District Court of Appeals reversed an order awarding benefits solely on a psychiatric condition where the claimant herself testified that she had received no physical injury as a result of the incident upon which her claim was based. Although the JCC found the claimant had sustained "slight" physical injury there was no record of evidence to support such a finding. In Harris Corp v. Forenza 605 So.2d 1310 (Fla 1DCA 1992) the District Court attached significance to the claimant's failure to seek medical treatment in reversing a finding of compensation for a mental impairment. There a co-worker had pushed or shoved the claimant's right shoulder. Court held that because there was no physical injury the mental impairment even if related to the pushing incident in part was not compensable. In City of Miami Beach v. Morantes 19 FLWD 478 (Case Number 92-00703 3/2/94) the First District Court of Appeals reversed an award where the claimant was a police officer whose partner was killed in a 1988 "shoot out" with drug dealers. The claimant sustained a fractured jaw and injuries to his ankles and knees. Morantes came under internal investigation of wrong-doing and then was discovered with a self-inflicted gunshot wound. Morantes' psychiatrist diagnosed depression and opined that:

"Under Grace the claimant herein was required to present competent substantial evidence that his physical injuries resulting from the 1988 incident was a causative factor in his depression. The only medical evidence presented as to this issue however was the testimony of Dr. Martinez-Lanza who stated in response to a question as to the significance of any injuries claimant may have sustained more trauma and more chances of developed post-traumatic stress syndromes. The doctor had no recollection of the claimant having related physical injuries. Rather Dr. Martinez-Lanza related claimant's psychiatric condition to the death of claimant's partner and to claimant's inability to prevent the death of the partner. Consequently we much conclude that Dr. Martinez-Lanza's testimony falls short of competent substantial evidence that claimant's injuries were a causative factor in his psychiatric condition." At page 479 Column 2. Based on the above language the employer/carrier argues that the testimonies of Drs. Machler and Sprehe do not constitute competent substantial evidence that claimant's physical injuries were a causative factor in her psychiatric condition especially when Court couples this with Dr. Sprehe's admission that the claimant would have sustained PTSD absent any physical injury.

26. In Thames v. Santa Rosa County Jail 19 FLWD 1268 (Case Number 93-1885 June 7 1994) Thames was working as a Correction Officer and unexpectedly collided with the mailbox injuring his back. He thought he was being attacked from behind by an inmate but then realized his mistake. He began having psychiatric problems following this incident. His claim was denied and the First District Court of Appeal affirmed. Thames contended his medical injury was not due to fright or excitement only because the precipitating incident also involved physical injury. The claimant's psychiatrist testified that "...the situation would be unchanged even if the claimant had sustained no physical injury." The First District Court of Appeal held that the statutory exclusion is not avoided merely upon an incident that involves physical injury where the physical injury is not a cause of the nervous or mental injury. As such it is the position of the employer/carrier that the May 12 1986 low back sprain did not aggravate exacerbate or contribute in any way to the claimant's psychological condition. The low back injury can in no way be termed significant according to the employer/carrier since the claimant was examined on only seven occasions between May 12 1986 and November 15 1987 and the low back condition has not been treated by any medical provider for over six years. Additionally the claimant did not initially mention the low back injury to Drs Smith Butler and Machler. Further the employer/carrier asserts that the claimant herself never mentioned to Drs. Smith Butler and Machler that the May 12 1986 incident had any impact on her psychological condition whatsoever. In fact the employer/carrier asserts that every history taken by Drs. Smith Butler and Machler the claimant attributed onset and causation of her psychological condition to the March 25 1986 shooting incident and her consequent fear of death or serious bodily harm in that altercation. The claimant has at no time herself given testimony causally connecting any of her psychological conditions to the May 12 1986 low back strain. As such the employer/carrier asserts that it was not until they controverted the March 25 1986 incident based upon Grace that the claimant's Counsel and Drs. Machler and Sprehe contrived the May 12 1986 injury/aggravation theory in 1993 out of desperation. It is the position of the employer/carrier that Court should reject this obvious charade and not accept the opinion of Dr. Machler in that his testimony is incredulous and unworthy of belief. The employer/carrier asserts that this conclusion is inescapable for several reasons (A) Dr. Machler characterizes claimant's low back injury as a "significant" one which flies in the face of all other evidence presented. The claimant's Counsel has not even deposed either Dr. Logue or Dr. Siek to indicate to Court the severity of the low back injury from an orthopaedic standpoint; (B) All of Dr. Machler's billings sent to the carrier have consistently reflected only the original accident not the May 12 1986. None of the reports from Dr. Machler even indicated to the carrier on any occasion that the May 12 1986 accident exacerbated aggravated or contributed to the claimant's psychological condition; (C) It was only after the employer/carrier controverted payment that Dr. Machler's billings and his conference with the claimant's Counsel prior to his deposition that Dr. Machler opined that the May 12 1986 accident aggravated a pre-existing psychological condition. As such the employer/carrier assert that it is clear that the testimony was proffered by Dr. Machler solely because it is the only way he will get his billings paid. Additionally the employer/carrier asserts that video tape taken November 2 1993 two weeks after Dr. Machler's deposition depicts the claimant performing the very job activities that Dr. Machler contends the claimant can not do. (D) It is clear from the testimony of Dr. Smith that the claimant had PTSD as of March 26 1986 long before the claimant discovered her arm bruise. As such the employer/carrier assert that the arm bruise can not be the cause of the psychiatric condition before the bruise appears. The employer/carrier assert that the testimony of Dr. Stein on the other hand is much more credible since she stands to derive no financial benefit from successful prosecution or denial of the claim.

27. As to the issue of whether the May 12 1986 fall was a separate distinct accident or caused by the March 25 1986 accident the employer/carrier asserts that the only medical testimony addressing that issue came from Drs. Machler and Sprehe who both agreed that "the most logical cause" of claimant's fall was the "blue funk" or hazy spaced out condition referred to by Dr. Sprehe. The claimant admitted that she could locate no specific physical explanation for the fall. Therefore if the fall was the natural consequence of the March 25 1986 experience her mental condition caused the physical injury resulting from the fall not vice versa. As such the employer/carrier assert that there is thus no second accident at all and no aggravation.

28. As to the statute of limitations argument on the May 12 1986 fall the employer/carrier asserts that it is undisputed that Dr. Machler was never authorized to treat the claimant for any consequences of those injuries. They also assert that it is also undisputed that the last payment of benefits for that injury was for the January 6 1988 visit to Dr. Siek which the claimant did not complete. The first claim listing a May 12 1986 accident date is dated March 1993 and as such obviously more than two years have elapsed between the January 6 1988 and February 8 1993 claim such that the claim is timed barred.

29. I find that the claimant did suffer an industrial accident arising out of and in the course of her employment on March 25 1986. The claimant's diary and calendar document the description of the claimant being in a struggle with the suspect and them both falling to the floor in her effort to subdue him as well as the bruise on her body and her being "sore all over." I find that this satisfies the requirement of a physical injury under the Grace criteria. There is competent substantial medical testimony before me which substantiates that the struggle the claimant was involved in with the suspect constituted a physical injury and I find that that physical injury is a causative factor in the claimant's mental or nervous injury.

This case is similar to the case of Watson v. Mehlman Inc. 102 so.2d 433 (Fla 1985) cert denied 111 So.2d 40 (Fla 1959). In Watson the claimant's mental or nervous condition was properly compensable even though her physical injury was minimal. In Watson the claimant was working when a fellow employee tossed a cardboard spool toward the claimant intending it to go over her head and into a trash can. The edge of the spool struck the claimant behind her ear causing a slight discoloration of the skin Court upheld the compensation award for the traumatic neurosis which resulted from the incident. While fright or excitement paid a large role in Watson's psychiatric problem it is clear that the psychiatric problem would not have occurred without the physical injury caused by being hit on the head by the spool. I accept the testimony of Drs. Machler and Sprehe that the claimant's PTSD would not have occurred but for the physical struggle she was involved in during the shooting incident. I find that the case at bar is distinguishable from Grace. In Grace the claimant did not suffer a physical injury when the suspect's elbow struck him as he attempted to put on the handcuffs. Additionally in Grace there was no medical testimony which remotely implied that the striking of Grace was a cause of his psychiatric illness. In the case at bar there is testimony that the claimant was physically injured in the struggle. Additionally there is competent substantial evidence in the form of testimony from Drs. Machler and Sprehe that the claimant's PTSD was at least partially caused by the physical injury and trauma. I do not agree with the employer/carrier's position that the medical evidence before me indicates that the claimant's psychiatric condition would be unchanged even if the claimant had sustained no physical injury. A complete reading of the medical evidence before me indicates that that just is not an accurate view of the testimony taken as a whole I also do not accept the employer/carrier's position that Dr. Machler's testimony should not be given great weight in the case at bar. Dr. Machler was the claimant's authorized treating physician and Dr. Machler has treated her over numerous years and as such I find that Dr. Machler is in the best position to determine the claimant's psychiatric condition and its causal relationship to the industrial accidents. I accept Dr. Machler's testimony as supported by Dr. Sprehe that the physical struggle that the claimant was involved in was a causative factor in the claimant's psychiatric condition. Additionally I accept Dr. Machler's testimony as supported by Dr. Sprehe that the subsequent fall on May 12 1986 aggravated the claimant's underlying PTSD. As Dr. Sprehe indicated the 1986 fall just added another issue between the claimant and the police department and aggravated her underlying PTSD. This claimant who was a police officer was involved in a struggle wherein she was "sore all over" and had bruises on her body. She was involved in an altercation with an armed suspect who was shot by her back-up officer and ultimately died before her. The claimant suffers PTSD subsequent to that and I find that it is inconceivable that a situation such as this should not be covered under the Worker's Compensation Act. Obviously Dr. Sprehe and Dr. Machler have indicated that this was a "life and death struggle" between the claimant and the suspect and they both found the PTSD to be causally related to the life and death struggle and not just as a result of fright alone. I accept Dr. Machler's testimony that since the May 12 1986 accident aggravated her underlying PTSD that a portion of his treatment from that date forward is causally related to that accident as well. As such I find that the two year statute of limitation has not elapsed as to bar her entitlement to continuing benefits.

30. I accept Dr. Machler's testimony that the claimant attained maximum medical improvement on September 22 1992. The claimant is entitled to temporary partial disability benefits from October 20 1987 to September 21 1992 and wage loss benefits from September 22 1992 to the date of the final hearing plus penalties and interest on the un-paid amounts.

31. At the beginning of the final hearing the parties stipulated to the claimant's base average weekly wage of $522.50 prior to September 3 1986. Additionally the parties stipulated that the claimant's fringe benefits included insurance in the amount of $35.85 per week which was terminated September 3 1986 for a total of $558.35. The parties stipulated that the claimant was not eligible for a general longevity pension. The claimant did receive an in-the-line-of-duty pension of $1 454.00 per month which the parties valued at $5.49 per week. Additionally the claimant was eligible for sick leave which was valued at $30.39 per week. The claimant also received a lump sum supplemental pension in the amount of $10 127.18 on September 3 1986. The parties stipulated to a value of $4.61 per week. It was the claimant's position that her average weekly wage was $598.84 and that she was at the maximum compensation rate of $315.00. The employer/carrier's position is that her average weekly wage was $558.35 with the maximum compensation rate of $315.00. The parties stipulated that the employer/carrier had paid all benefits at base rate since no benefits were provided to the claimant subsequent to September 3 1986. The parties also stipulated that the claimant chose to "run out" her sick leave.

32. According to the testimony of the employer the claimant accrued 1.25 sick leave days per month during her employment with the City of Clearwater. Sick pay is calculated at the claimant's average daily pay rate which is determined by taking the claimant's average base wage and dividing by five work days per week. As such the parties stipulated to the weekly figure of $30.39 per week.

33. The employer testified that sick pay could only be used in three instances: one) illness two) family illness or three) retirement. It was the position of the employer that if neither of these three conditions occurred that there was no value to the sick pay. When the claimant told the City of Clearwater that she wanted to retire she was given two options: one) to receive 50% of her accrued sick pay in a lump sum and retire immediately or two) defer her retirement date until she "ran out" her sick pay in weekly installments to supplement her workers' compensation to equal 100% of her base pay. The claimant chose to "run out" her sick pay and defer commencement of her in-line-of-duty disability retirement pension until she "ran out" 100% of her accrued sick leave.

34. I find that the sick pay does have a value to the claimant and as such should be included in her average weekly wage. This case is similar to City of Daytona Beach v. Amsel 585 So.2d 1044 (Fla. 1DCA 1991). The claimant in Amsel was a police officer with the City of Daytona Beach. The claimant was granted a service connected disability pension on August 25 1984 and the claimant was accepted permanently and totally disabled as of December 11 1988. Beginning August 25 1984 contemporaneously with the grant of his service connected disability pension plan the city reduced the claimant's disability pension by the amount of his monthly workers' compensation benefits. As part of the employee benefit package the claimant was entitled to eight hours of sick leave per month valued at $13.71 per week. Under the City's sick leave incentive program according to a specific formula a portion of the accrued sick leave not to exceed forty hours per year could be paid to an employee. Immediately following the claimant's injury the City applied his accrued sick leave to pay him his full salary. This continued until such time as the claimant's sick leave was exhausted. The First District Court of Appeal in Amsel found that the value of the sick leave should have been included in the claimant's average weekly wage calculation. The First District Court held that the sick leave provisions of the employment contract in that case satisfied the test for inclusion in an average weekly wage calculation within the contemplation of Sunland Training Center v. Irving 384 So.2d 745 (Fla. 1DCA 1980) and its progeny. In Amsel the claimant's contract of employment authorized eight hours of sick leave per month and contained an incentive provision whereby employees could be paid for up to forty hours of unused sick leave per year according to a set formula. Claimant's entitlement or vested right to sick leave was demonstrated by the employer's use of his accrued sick leave to keep him at his full salary until such time as his sick leave was exhausted. Court held that although the accident triggered the claimant's use of sick leave his right of present or future enjoyment of sick leave was fixed by his employment contract and should have been included in the average weekly wage calculation. The Amsel court held that the sick leave did have a real present day value to the employee i.e the worker must be able to withdraw the funds at will or the vesting of the benefits must be assured citing Monroe Regional Medical center v. Ricker 489 So.2d 785 (Fla. 1DCA 1986).

35. In the case at bar the claimant's sick leave benefits must be included in the calculation of her average weekly wage since the testimony proves that under the contract of employment such benefit had vested at the time of the industrial accident. The claimant in the case at bar had an immediate fixed right of present or future enjoyment. Consideration should also be given to whether sick leave is authorized when the employee leaves employment but there is no information in the case at bar as to whether or not the claimant would be entitled to payment of the sick leave when she left employment except for the condition of retirement.

36. The case at bar is almost identical to Amsel in that the claimant was allowed to "run out" her accrued sick pay in weekly installments to supplement her workers' compensation benefits to equal 100% of her base pay. As such the employer must increase the average weekly wage by $ 30.39 per week to include the value of the sick pay.

37. Florida Statute Section 440.02(21) states "wages means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of injury together with the reasonable value of board...employer contributions for legal health life accident or disability insurance for the employee or dependents excluding social security benefits; contributions to pension plans to which the employees rights have vested...In employment in which an employee receives consideration other than cash as a portion of this compensation the reasonable value of such compensation shall be the actual cost to the employer.

38. Black's Law Dictionary defines the term "vested interest" as meaning a present right to a thing even though the right to possession or enjoyment must be postponed to some uncertain time in the future as distinguished from a future right which may never materialize.

39. With reference to the City of Clear water's general employee pension plan there were eight separate ways to obtain payment out of the pension plan for both active and inactive participants:

A) Active employees may apply for benefits upon the occurrence of one of five events: 1) retirement a) attainment of twenty years of service and at least fifty-five years of age or b) attainment of thirty years of service regardless of age or c) after twenty years of service regardless of age if participant is engaged in hazardous employment such as police or fire department; 2) termination after vesting: i.e. (between ten and twenty years of service) - the benefit is reduced 3% each year short of twenty years of service; 3) disability in-line-of-duty or non-service connected; or death; 4) termination before vesting; those who terminate before attainment of ten years of service receive a refund of their contributions with no interest.

B. For inactive participants there are three categories 1) retiree's receiving benefits; 2) surviving family members; and 3) recipients of disability benefits.

40. I find that by virtue of the short length of service the only general pension plan benefit that the claimant was eligible to receive was the in-line-of-duty disability pension which all law enforcement officers have coverage for from their initial day of employment.

41. The employer/carrier has asserted that the city of Clearwater is not a participant in the Florida State Retirement System and that the City's retirement plan is a contributory one both by the employee and the employer. The City does not ear-mark specific weekly contributions for each employee instead it annually obtains an opinion from a CPA firm and actuaries to determine the lump sum deposit that is necessary to keep the pension plan actuarially and fiscally sound As such the employer has alleged that the City's general pension fund is a "defined benefit plan" and not a "defined contribution plan" so that the in-line-of-duty pension which the claimant is receiving should not be includable in the average weekly wage. The City is required to at least match the employee's contribution to the plan.

42. The parties have stipulated to the figures as testified to by Ken Simmons the expert actuary retained by the employer/carrier to make the calculations. I accept the parties' stipulation that the value of the in-line-of-duty disability pension is $5.49 per week. The claimant has taken the position that the value of the in-line-of-duty pension should be included in her average weekly wage and it is the position of the employer/carrier that that value should not be included in the average weekly wage since it is a defined benefit plan.

43. I find that the value of the in-line-of-duty disability pension $5.49 per week should be included in the claimant's average weekly wage. I do not accept the employer/carrier's argument that since the employer makes annual contributions to the plan as opposed to weekly contributions that the value should not be included in the average weekly wage. The claimant was not "vested" in any of the other general pension benefits so as to be entitled to any additional amounts from the pension plan. The claimant is only able to receive one general pension benefit. Since she was not vested and not eligible to receive any plan benefit other than the in-line-of-duty disability pension I find that only the value of the in-line-of-duty disability pension is includable in the average weekly wage. Obviously the claimant was vested in this in-line-of-duty disability pension as shown by the fact that she has been able to obtain payment from that pension plan due to her disability. The testimony is clear that a claimant "vests" in that plan immediately upon obtaining full-time employment as a police officer so that pension plan obviously has a present day value to the claimant and it should be includable in her average weekly wage.

44. I do not accept the employer/carrier's position that since this is a "defined benefit plan" as opposed to a "defined contribution plan" that would eliminate the value of this pension from the claimant's average weekly wage. The employer/carrier has obviously been able to place a value on the plan and I accept the stipulations of the parties with reference to the amount of $5.49 per week. The City has indicated that since no specific amounts are "ear marked" per participant for periodic contributions that this should exclude the value of the pension from the average weekly wage. I do not accept this theory as it is obvious that the in-line-of-duty disability pension has a present day value to the claimant in light of the fact that as soon as she became employed as a police officer and as soon as she became disabled from performing her occupation as a police officer she was eligible or "vested" in the in-line-of-duty disability pension.

45. The case at bar is substantially similar to the case of City of Tampa v. Bartley 413 So.2d 1280 (Fla. 1DCA 1982). In Bartley Court held that the portion of the pension contribution which provided for the claimant's in-line-of-duty disability benefit would be includable in computation of the average weekly wage in the same manner as premiums paid by the employer for group health or accident insurance coverage. The Bartley Court went on to hold that the longevity retirement benefit in non-service connected injury disease or disability benefits paid by the City for the benefit of the claimant pursuant to the terms and provisions of the City's fire fighters' and police officers' pension contract were not "vested" and therefore did not meet the test of "tangible benefit of real present day value" as required to be included in the average weekly wage. The longevity requirement benefit required employees reaching the age of forty-six years with at least twenty years of service with the Department and the claimant in Bartley did not meet that requirement. Additionally the disability benefits for non-service connected injury required the employee to have served at least ten years with the department and the employee in Bartley did not meet this requirement either. As such the portion of the pension contributions for those two items were not to be included in the average weekly wage since they were not vested and did not meet the test of a tangible benefit of real present day value.

46. In Sunland Training Center v. Irving 384 So.2d 745 (Fla. 1DCA 1980) Court held that it was error to include the amount contributed by the employer into a retirement fund for computing average weekly wage where the contributions by the employer for the fund did not have a real present day value to the claimant in that the claimant was neither free to withdraw the funds at will nor was vesting assured.

47. I find that the claimant in the case at bar does not have a real present day value or "vesting" in the general pension fund but does have a vested interest in the in-line-of-duty pension so that the in-line-of-duty pension should be includable in her average weekly wage. As the First District Court held in Polk County School Board v. Cobbett 547 So. 2d 991 (Fla. 1DCA 1989) the claimant's pension or retirement benefits had not vested so that the employer's contribution to the pension fund were not includable in the average weekly wage since the claimant had not completed the minimum number of years of creditable service and would not receive any benefits upon reaching retirement age. The Cobbett pension only applied to a member who became permanently and totally disabled after five years of creditable service or a member who became permanently and totally disabled in the line of duty regardless of the length of service. The Court found that the claimant in Cobbett had a 5% permanent impairment rating and was not permanently and totally disabled. As such the First District Court of Appeal held that the claimant did not have the requisite number of creditable years of service to have her pension vested so that the value of that pension was not includable in her average weekly wage. In the case at bar the claimant had not completed the requisite number of years of service to vest in any other portions of the general pension fund other than the in-line-of-duty disability pension fund and as such I find that the value of the general pension benefit is not includable in the claimant's average weekly since the claimant has not "vested".

48. The claimant received a lump sum supplemental pension payment which the parties stipulated to as $4.61 per week. I find that the supplemental pension is not a benefit provided by the employer/servicing agent since that is not a benefit provided by or funded by the "employer" Florida Statute Section 440.02(21) includes in the definition of wages non-cash compensation called "employer contributions" to certain enumerated items. The value to be included shall be the "actual cost to the employer."

49. The Clearwater Police Supplemental Pension Fund is conceived and created by the Florida Legislature pursuant to Section 185. The Legislature permits a municipality or other political sub-division to "opt in" by enacting enabling ordinances that create an excise tax on casualty insurance premiums sold within the city limits. The City of Clearwater passed such an enabling ordinance Section 29.81 which required casualty insurers to collect this excise tax on casualty policies sold within the city limits. The city Commission also created the Clearwater Police Supplementary Pension in Section 2.471 through 2.474 of the City Charter. At the end of each year the carrier's forward all tax money collected to the State of Florida Comptroller who in turn forwards the City of Clearwater's share to the City. The City simply acts as a conduit for the money. Within five days of receipt of the money from the State the city must issue their check to the supplementary pension fund for depositing into the Fund's account. The City does not pay into provide funding for or contribute monetarily in any way shape or form to the Clearwater Police Supplementary Pension.

50. I find that the lump sum supplement pension is not includable in the average weekly wage in light of the fact that this is not "a benefit provided by the employer." The City provides no monetary compensation to the lump sum supplemental pension and all money funding that pension is strictly from an excise tax on insurance premiums. Clearwater city Charter section 29.81(3) specifically indicates that all monies received by the City pursuant to the provisions of the section shall be paid immediately into the pension fund provided however such monies received shall be kept separate and apart from other monies of the pension fund and the monies received pursuant to this section shall be used solely for the payment of amounts to become due police officers and their departments and no other person pursuant to the provisions of the law governing pensions within the city.

51. Even though a police officer vests immediately upon employment in this lump sum supplemental pension I do not find that this is compensation provided by the employer. I find that the City does not provide the lump sum supplemental benefit to the employee rather the employer strictly forwards all money received pursuant to the section to the pension fund.

52. I do not accept the employer/carrier's position that the employee is "double dipping" by having the fringe benefits delineated herein included in her average weekly wage. In Hillsborough County School Board v. Flitter 539 So.2d 1145 (Fla. 1DCA 1989) Court held that the employers' past weekly contributions to the employee retirement program was part of her compensation package and was properly included in her average weekly wage. The fact that the employee was already receiving the retirement benefits from the Florida Retirement System did not result in a double recovery or compel a different result. The employer/servicing agent in Flitter argued that it would be inequitable and tantamount to a double recovery if the contribution was added to the claimant's average weekly wage when she was already receiving monthly retirement benefits. They also argued that fringe benefits including vested pension and retirement should not be included in the average weekly wage so long as the benefits continued to be provided. The employer/carrier alleged that the employer was continuing to provide the benefits through the claimant's receipt of retirement benefits from the Florida Retirement System. The claimant in Flitter argued that the employer must continue to provide identical benefits or failing this have the benefits included in the average weekly wage. The claimant in Flitter asserted that the retirement benefits paid by the Florida Retirement System were not identical to the employer/carrier's monthly contribution and thus she was only "harvesting the fruits of a fringe benefit" which is not the equivalent of the employer/carrier continuing to provide the benefit. The claimant also pointed out that when the claimant retired the employer stopped contributing to the retirement account. The Flitter Court held that once the claimant's employment ended by retirement and the employer/carrier agent stopped making contributions to her account then the employer/carrier was no longer able to exclude the benefit from the average weekly wage calculation. The Flitter Court also held that the claimant was not receiving a double recovery in that she was only collecting benefits from the Florida Retirement System which she was entitled to by virtue of her past service and past employer contributions. Once she retired her receipt of benefits from the Florida Retirement System relieved the employer/carrier of further financial sacrifice. Additionally the claimant gave up the added benefits she would have received had she continued her employment. The Flitter Court indicated that should the employer/carrier argue that because claimant's retirement was voluntary she should not be awarded with the additional amount to her average weekly wage and its resultant increase in her wage loss benefits and observed that such argument would be relevant to a wage loss decision but was not relevant to an average weekly wage computation argument. Court indicated that the language of Section 440.14(3) made no specific provision for voluntary retirement and Court did not find a reason for such a distinction. As such the Flitter Court indicated that this was not a double recovery by including the amount in her average weekly wage.

53. I find that the claimant in the case at bar is not receiving a "double recovery" by including the fringe benefits delineated herein in her average weekly wage. The claimant in the case at bar as the claimant in Flitter was only receiving benefits to which she was entitled as a result of her prior service. Those benefits had a real present day value to the claimant and the claimant was "vested" in those benefits at the time of her industrial accident and as such those benefits are properly includable in her average weekly wage.

54. The claimant has filed wage loss request forms from the date of her separation from the employer to date. The employer/carrier has been paying the claimant's in-line-of-duty disability pension but not wage loss benefits. I find that the claimant is entitled to temporary partial disability and wage loss benefits plus penalties and interest based on the corrected average weekly wage and compensation rate stated herein. Full pension disability benefits are being paid and an off-set may be taken as to the payment of wage loss benefits Court in Barragan v. City of Miami 545 So.2d 252 (Fla. 1989) held that an employer is prohibited from deducting workers' compensation benefits from a workers' pension benefits except to the extent that the total of the two exceeds the workers average monthly wage. Thus by increasing the claimant's average weekly wage in the case at bar the claimant would be able to retain additional amounts from her pension benefits. As Court held in City of Miami v. Watkins 579 So.2d 759 (Fla. 1DCA 1991) an employer may not off-set workers' compensation benefit payments against an employee's disability pension benefits except to the extent that the total of the two exceeds the employee's average weekly wage. It is clear in the case at bar that the claimant's average weekly wage must be increased by the properly includable fringe benefits as stated herein.

55. I find that the claimant is entitled to reimbursement of taxable costs. Jurisdiction is reserved if the parties are unable to agree as to amount.

56. I find that the claimant's Counsel has provided a valuable service and is entitled to be paid a fee. I reserve jurisdiction both on amount and of party responsible.

Based on the foregoing it is

ORDERED and ADJUDGED that:

1. The claimant has sustained two industrial accidents arising out of and in the course of her employment and is entitled to compensation and medical benefits as a result of both of those accidents.

2. The statute of limitations has not run so that the claimant is entitled to medical and compensation benefits as a result of the May 12,1986 industrial accident.

3. The employer/carrier is responsible for the past bills of Theodore Machler M.D. in accordance with the medical and surgical fee schedule.

4. The employer/carrier shall provide the claimant with continuing medical care and attention at the direction of Theodore Machler M.D. as long as the nature of injury and process of recovery so requires.

5. The claimant has attained maximum medical improvement as of September 22 1992.

6. The employer/carrier shall pay to the claimant temporary partial benefits from October 20 1987 to September 21 1993 and wage loss benefits from September 22 1992 to the date of the final hearing in accordance with the wage loss forms in evidence together with penalties and interest on the unpaid amounts.

7. That the claimant's average weekly wage should be computed as follows:

A. Base Rate $522.50

B. Health/Life $35.85

C. In-line-of-duty pension $5.49

D. Sick Leave $30.39

8. I find that the claimant should have an average weekly wage of $594.23. The claimant is at the maximum compensation rate of $315.00.

9. I find that the employer/carrier should pay all past benefits at the correct average weekly wage and corresponding compensation rate and bring any unpaid amounts current in lump sum with penalties and interest on the unpaid amounts.

10. I find that the claimant's Counsel has provided a valuable service and is entitled to be paid a fee. I reserve jurisdiction both on amount and party responsible.

11. I find that the claimant is entitled to reimbursement of taxable costs. I reserve jurisdiction if the parties are unable to agree on amount.