Total Cases: 142
The question in this case was whether the claimant's attorney was entitled to a fee payable by the employer/carrier. Claimed benefits consisted of indemnity for periods of time that were payable. According to the employer/carrier, the checks had been mailed but the claimant had not received a check until three months following the filing of a petition. According to the employer/carrier, two previous checks for these time periods had been sent to the claimant but the claimant had not received them. The question is whether the benefits in this instance were timely paid when the initial checks that were not received by the claimant were mailed.
Timeliness in the payment of benefits is determined not by the date of which the employer/carrier notified the claimant's attorney that the claim is accepted and benefits will be paid but by the date checks of payment are placed in the mail. It is presumed that mail properly addressed, stamped, and mailed is received by the addressee and proof of general office practice satisfies the requirement of showing due mailing. This presumption, however is rebuttable. The judge had ruled that the failure of the claimant to receive the missing checks was through no fault of the adjuster or carrier. Court determined that a fault-based analysis of the date the claimant actually received the checks was not proper.Order of judge denying attorney fees payable by the employer/carrier reversed.
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Section 440.107(15), Florida Statutes (2013) provides that a limited liability company not engaged in the construction industry that meets the definition of "employment" at any time between July 1, 2013 and December 31, 2013 may not be issued a penalty for failing to secure the payment of workers' compensation. The employer in this instance asserted that if there was coverage between this specific date range, it could never be penalized for not having such coverage. On the contrary, the appellee asserted that this statutory provision only exempts non-construction limited liability companies from a penalty for the period between July 1, 2013 through December 31, 2013. Court determined that it was obliged to defer to the agent's interpretation of the statute if it was in the range of possible reasonable interpretations and is not clearly erroneous. Court ruled in this instance that the department's interpretation was reasonable and consistent with the entire statutory scheme.
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JCC ordered the payment of penalties based on the late payment of IB benefits. According to the judge's order, the IB benefits were not paid within 20 days of the date of maximum medical improvement and accordingly, penalties and interest were payable. On appeal, court determined that JCC erred. Penalties and interest in regards to the payment of IB benefits are payable if benefits are not paid within 20 days of the adjuster having knowledge of the permanent impairment rating. See Section 440.15(3)(a)1, Florida Statutes.
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The Division of Workers' Compensation (Division) imposed an administrative penalty against the Appellant for late payment of benefits. Appellant objected to penalty assessment and asserted that the penalty assessed could only be made by referring the case to a JCC consistent with the terms of Section 440.021, Florida Statutes. The Division asserted that a review of the penalty assessment could only be made in accordance with Section 440.525(3), Florida Statutes, and pursuant to the terms of Section 120.57, Florida Statutes.
Court determined that jurisdiction to determine penalties where the question is the amount of penalties would be adjudicated in accordance with Section 440.021, Florida Statutes, i.e., when an audited entity challenges the penalty assessment itself - the amount of the penalty - referral is required to the JCC in accordance with Section 440.021, Florida Statutes. In this case, the audited entity was not challenging the amount of the penalty but rather whether the penalty could be assessed in the first instance. Therefore, review of the penalty could only be made pursuant to Section 440.525(3), F.S.
When faced with two different, but applicable statutes, courts favor a construction that gives affect to both statutes rather than construing one statute as being meaningless or repealed by implication. The two applicable statutes in this case should be read together to make available both a DFS audit report-focused review process as contemplated in Section 440.525(3) (an APA-based process) and a 440.021 review process before the JCC for resolving narrower disputes involving only the amount of the penalty or interest assessment.
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The payment of penalties is excused where non-payment results from conditions over which the employer/carrier had no control. The JCC in this case made no findings as to whether the untimely payment resulted from conditions over which the employer/carrier had no control. The award of employer/carrier paid penalties on benefits at issue reversed.
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Sections 440.20(6) and 440.20(8), Florida Statutes, govern penalties and interest respectively. Because those subsections are substantive, the version of the statute that applies is that which is in effect as of the date of the accident.
In accordance with Section 440.20(6), Florida Statutes (1997), the employer/carrier who pays an installment of compensation more than 7 days after it becomes due shall pay a penalty of 20% of the unpaid installment unless such non-payment results from conditions over which the employer or carrier has no control. Evidence of a claims office's standard mailing practices creates a rebuttable presumption that a particular item was mailed. In this case, the adjuster testified that the checks were sent out by regular mail and although she did not see the checks that actually went out, this was the normal practice. This evidence was sufficient to permit the JCC to infer that the employer/carrier followed the normal course of business regarding mailing and based upon the presumption that the check was mailed timely, court determined that no penalties were due. The JCC was correct in denying penalties.
Section 440.20(8), Florida Statutes, provides for the payment of interest of 12% if an installment of compensation is not paid timely. Unlike the penalty provisions, there are no exceptions to the payment of interest. JCC did find certain payments were paid late and in this circumstance, the award of interest was mandatory. In reviewing the case of Corkery v. Best Wings of Cape Coral, 707 So. 2d 884(Fla. 1st DCA 1998), court determined that any reference to excuses for late payment of benefits relating to the question of interest payments was dicta. Court determined that interest would be payable regardless of whether the employer/carrier had any control over the delay in payment of benefits.
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JCC erred in denying claim for penalties and interest upon awarding the claimant temporary total disability benefits. Employer/carrier conceded that the JCC erred where the payment of these claimed benefits was late.
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Benefits are due to be paid on the date that an order is entered awarding the benefits. JCC entered order awarding benefits. The benefits were not paid within 7 days of the date of the order but were paid within 7 days the order became final, i.e., 30 days after it was mailed to the parties.
Section 440.20(7), Florida Statutes, controls the payment of penalties and requires a 20% penalty if compensation is not paid within 7 days after it becomes due. Since the benefits became due on the date of the order, penalties were payable in this instance.
Section 440.25(5)(a), Florida Statutes, states that an order does not become final until 30 days after it is mailed to the parties unless a timely appeal is filed. Section 440.25(5)(a), Florida Statutes, only applies in determining when an appeal can be taken whereas Section 440.20(7), Florida Statutes, controls when penalties are required.
Penalties deemed to be payable in this instance since compensation order was not paid within 7 days of the order.
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Appellate court reversed award of temporary partial disability benefits for periods of time after the claimant had reached maximum medical improvement. The denial of penalties on the late payment of certain benefits for different periods of time reversed since an award of penalties based on the on late payment of indemnity benefits is not discretionary but mandatory.
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Employer/carrier untimely asserted defense that the claimant had been overpaid benefits. This defense was raised by the employer/carrier in its written closing argument submitted after the conclusion of the final hearing. Court determined that this was untimely. If there had been a determination of overpayment, such overpayment could be deducted from benefits otherwise due the claimant.
JCC erred in this case in denying the claimant an attorney's fee and costs for the successful prosecution of the claim for penalties on the late payment of interest.
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In ruling on the claimant's entitlement to temporary partial benefits, the JCC found that the claimant had not filed the DWC-19 forms sent to her attorney. The employer/carrier had never raised this as a defense to the claim for temporary partial benefits. Court determined that JCC had violated the claimant's due process rights by sua sponte considering a defense not raised by the employer/carrier.
JCC erred in denying penalties and interest. Penalties and interest were due because the claimant established that she was entitled to temporary partial disability benefits and had proved that such benefits were not paid within seven days of the date they became due. Such proof constitutes a prima facie case for penalties and interest. See Section 440.20(6)(a), Florida Statutes (2009).
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On Motion for Rehearing - Original opinion at 36 FLW D1583. JCC erred in awarding temporary partial benefits for periods of time after maximum medical improvement. The denial of penalties on the late payment of temporary partial benefits for periods of time awarded reversed. An order of penalties on late payment of indemnity benefits is not discretionary but mandatory.
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Pursuant to Section 440.20(8)(b), Florida Statutes, the Department of Financial Services imposed upon the school board penalties based upon the late payment of temporary total compensation. The question in this case is whether, for purposes of Section 440.20(8)(b), Florida Statutes, late payments should be interpreted to mean payments made after the date that the payments were due or payments made more than 7 days after they were due. The Department alleged that the penalties were payable if the temporary total benefits were late in payment and the school board argued that the payments were late for purposes of Section 440.20(8)(b), Florida Statutes, if paid more than 7 days after the benefits were due.
Court accepted review of issue based on statutory interpretation. Accordingly, review is de novo. In utilizing statutory interpretation rules and standards, court determined that penalty assessments under Section 440.20(8)(b), Florida Statutes, were payable if the payments were not timely paid with no allowance being given to extending the period for the payments by 7 days.
The school board had argued that penalties assessable under Section 440.20(8)(b), Florida Statutes, should be construed in pari materia with Section 440.20(6)(a), Florida Statutes, because both statutes include the phrase "late payments." The court however said that the two statutory provisions were different. The penalty imposed in Section 440.20(8)(b), Florida Statutes, is paid into the Workers' Compenastion Trust Fund and serves a regulatory compliance purpose. The penalty in Section 440.20(6)(a), Florida Stautes, is paid to the injured employee as additional compensation. Accordingly, the fact that a 7-day grace period before penalties must be paid to an injured worker under Section 440.20(6)(a) has no bearing on the proper interpretation of penalties payable under Section 440.20(8)(b), Florida Statutes.
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Without an award, the employer/carrier retroactively accepted the claimant as permanently and totally disabled. The question in this case is whether penalties and interest are payable in regards to these payments of permanent total compensation.
Because of the fact that the permanent total benefits were not paid within 14 days of the time that such benefits were payable, court determined that penalties were due. In determining the date that such penalties are payable, the claimant seeking penalties in this situation does not bear the burden of proving entitlement to PTD benefits, the date entitlement began or when the employer/carrier had sufficient information to determine entitlement to permanent total disability benefits. Penalties were awarded in this instance where the employer presented no explanation as to why it delayed acceptance of the claim as permanently and totally disabled.
In regards to the payment of interest relating to these retroactive entitlements to permanent total disability benefits, the JCC may not deny interest because late payment resulted from conditions over which the employer/carrier had no control (a finding that would excuse the payment of penalties). In this instance, there was no basis for denying the payment of interest on the benefits retroactively payable.
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Parties entered into a settlement agreement. JCC subsequently entered an order approving attorney fees and in relevant part determined that "the entire settlement shall be subject to penalties and interest if payment is not rendered timely." The settlement agreement between the parties required the claimant to execute a general release and waiver.
Employer/carrier did not timely pay the settlement sum and motion filed by claimant for attorney fees and costs. JCC denied penalties and interest based on the claimant’s failure to timely execute a release which was a condition precedent to the agreement and that payment was not late. From this order, an appeal was taken.
JCC’s order requiring the payment of penalties and interest is final 30 days after mailing of such order unless appealed. Although a JCC may vacate or amend an order not yet final, once an unambiguous order becomes final, the JCC is without jurisdiction to amend, vacate or republish it. The motion to amend the judge’s order requiring the payment of interest and penalties for the late payment of a settlement had become final and not subject to being vacated by the JCC.
Even if the JCC had jurisdiction to vacate the order concerning payment of penalties and interest, res judicata in this instance would preclude such an action in this case. The JCC had ruled that employer/carrier did have notice of the order awarding penalties and interest for the late payment of the settlement sums and that the signing of the general release was not a condition precedent to the effectiveness of the settlement. That order was final and had not been appealed by the employer/carrier.
Section 440.20(11)c, Florida Statutes, precludes a statutory basis for an award of penalties and interest on lump sum settlement such as the claimant’s in this instance. However, the parties are free to negotiate, as a part of a settlement agreement, for payment of increased benefits should the payment of settlement proceeds be late. Payment of attorney’s fees and costs in this instance was based upon the parties’ agreement to such benefits and not the statutory basis for the payment of attorney’s fees and costs.
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The question in this case concerned whether an employer had appropriate workers’ compensation coverage for several different employees for purposes of penalty assessment and stop work order as claimed by the Division of Workers’ Compensation.
Employer asserted that no coverage was required on one employee because she was a volunteer and did not qualify for workers’ compensation benefits. The employer admitted in response to a request for admission that this particular employee was employed. Court determined that this admission was not an admission that the employee was an employee for whom workers’ compensation coverage had to be provided. This particular employee was not paid for services provided to the employer and accordingly, the court determined that coverage was not required. There is no basis for a penalty assessment on this individual or for the issuance of a stop work order.
In regards to two other employees, the employer asserted that those employees’ payroll should not be imputed to them when they only worked in Florida for half of the period in question. In this instance, the employer refused to provide business records to the Division. By rule, such refusal requires the Division to impute missing payroll for the period requested in order to assess a penalty. Court determined in this instance, that the Division appropriately imputed income to the employees.
Finally, the employer challenged the Division’s use of the "roofing" classification code when calculating a penalty for not having appropriate coverage in place. Employer failed to produce any business records as required by Section 440.107(3), Florida Statutes, and Rule 69L-6.015. Accordingly, competent and substantial evidence was introduced that would support the classification given to the employer by the Division. The employer failed to produce any business records indicating that the employees in question engaged in non-roofing related activities.
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JCC erred in not awarding penalties and interest to the claimant for the late payment of impairment benefits following maximum medical improvement. The employer/carrier as opposed to the claimant has the burden of offering relevant evidence showing that they were not aware of an impairment rate as of the date the claimant alleges that benefits were due in showing facts supporting the obligation to pay the benefits.
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Section 440.20(12), Florida Statutes, provides that when compensation payable under a workers’ compensation "award" is not paid within seven days after it becomes due, there shall be added to such unpaid compensation a penalty in an amount equal to 20 percent thereof. In regards to unrepresented claimants who settle their workers’ compensation cases but the settlement amount is not paid timely, an additional 20 percent penalty is added to the settlement value in accordance with Section 440.20(7), Florida Statutes. However, if the claimant is represented by an attorney and there is a late payment of an agreed upon settlement amount, penalties are not payable pursuant to Section 440.20(7), Florida Statutes.
When testing the constitutionality of a statutory provision in regards to disparate treatment among classes (in this instance between represented and unrepresented claimants) and assuming that such disparate treatment does not negatively impact a suspect class or result in the deprivation of a fundamental right, the basis of review is whether there is a rational basis for such treatment. Under this minimal level of scrutiny, the party attacking the constitutionality of the statutory provision bears the burden of demonstrating that the statutory distinction at issue has no rational relationship to a legitimate state purpose. The party defending the constitutionality of the statutory provision has no obligation to prove that the legislature’s assumptions about the benefits of the statutory distinction at issue would be realized nor does such evidence have to be present in the record for the legislation to survive the challenge. Even if it appears that the legislature has made an improvident, ill-advised, or unnecessary decision, the law must be upheld if there are any facts that may reasonably be conceived to justify it. A determination of whether a rational basis exists is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. In this case, the court found a rational basis upon which to distinguish disparate treatment of represented and unrepresented claimants.
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Employer argued that he was not required to obtain workers’ compensation coverage because he was sole proprietor who was not engaged in the construction industry. A stop work order and amended of penalty assessment had been issued by the Department of Financial Services, Division of Workers’ Compensation. Appellate court did not reach the merits of the employer’s argument because he failed to exhaust his administrative remedies.
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In pre-trial stipulation, the employer/carrier stipulated that the claimant’s injuries or conditions were compensable. At the hearing, the employer/servicing agent took the position that the claimant’s neck injury was not causally related to the workplace accident. JCC subsequently determined that the claimant’s neck injury was not related to compensable accident. On appeal, JCC’s decision reversed.
As a general rule, a stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the court. By stipulating that the neck injury was compensable, the claimant was relieved of any obligation to establish compensability as to her neck injury and precluded the employer/servicing agent from attempting to establish the contrary until and unless that stipulation is set aside. No request to set aside the stipulation was filed in this case.
Court determined that penalties and interest were payable based upon late payment of impairment benefits for a low back condition. Once the employee has reached the date of maximum medical improvement, impairment benefits are due and payable within twenty days after the carrier has knowledge of the impairment rating. JCC failed to rule on when the employer/carrier became aware that impairment benefits were due and payable and accordingly, case remanded to JCC for additional findings regarding this issue.
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JCC erred in denying claimant
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JCC erred in denying an award of penalties where the employer/self insured neither paid the benefits claimed within seven days of when they became due as required by Section 440.20(6), Florida Statutes (2003), or exercised the pay and investigate option as provided in Section 440.20(4), Florida Statutes. The employer/self insured did not offer any relevant evidence showing that it was unaware as of the date on which claimant alleged the benefits were due or other facts supporting the obligation to pay benefits. JCC also erred in denying interest on the past due benefits, which is awardable pursuant to Section 440.20(8), Florida Statutes, in addition to other penalties for late payment of compensation.
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In determining claimant’s attorney’s fees utilizing hours expended in the prosecution of a successful claim, the amount of time expended by defense attorneys should not influence or control the fee payable to the claimant’s attorney. Such evidence is marginally relevant. Admission into evidence in this case of the defense attorney’s time records deemed not reversible and did not constitute an abuse of discretion by the JCC. Moreover, the court determined that it was disingenuous on the part of the claimant’s attorney to take the position in this appeal that the billing records of defense counsel were irrelevant to the determination of a reasonable fee where the claimant’s attorney initially sought discovery of the defense attorney’s records arguing in her motion to compel discovery that these records were relevant and material to the determination of whether the hours she spent were reasonable.
Competent and substantial evidence supported JCC’s acceptance of employer/carrier’s expert testimony as to the reasonableness of hours that should have been expended in the prosecution of the claim.
Judge’s order allowed the employer/carrier thirty days to pay the attorney’s fees awarded before the claimant would be entitled to interest and penalties. Claimant’s objection to this provision of the order on appeal deemed waived by the court. Initially, the JCC had made this ruling in an abbreviated order. The claimant challenged the abbreviated order and requested a more specific final order but did not challenge the ruling on the time allowed the employer/carrier to pay the awarded attorney’s fees. Since the claimant’s attorney did not object to this provision of the award by way of a motion for rehearing either after the abbreviated order or following the more specific final order, court deemed claimant’s objection to this provision on appeal waived.
In abbreviated order, JCC found that 160 hours to prosecute the claim was reasonable. In the more specific final order, the JCC determined 155 hours was reasonable. The JCC explained in the final order that his calculations in the abbreviated order were mistakenly made. On appeal, court found no error in reducing the number of hours found reasonable.
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Claimant injured in Florida and employer/carrier began paying workers’ compensation benefits under Nebraska law. Notwithstanding the fact that benefits were paid under Nebraska law, court determined that pursuant to Section 440.20(4), Florida Statutes, if benefits were paid, even under the laws of another state, Section 440.20(4), Florida Statutes (2002) was still applicable and the employer/carrier would be estopped to deny compensability after 120 days of the "pay and investigate" provision of this section. Since the accident in this case occurred in Florida, there is no question that the claim was governed by Florida law and Florida has jurisdiction over the workers’ compensation claim. Because the employer did not deny compensability of the accident within 120 days of the initial provision of benefits, the employer waived the right to deny compensability.
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Trial court correctly found that employer/carrier failed to deny compensability of the claimant’s injury within 120 days after the initial provision of benefits and therefore was estopped in denying compensability. The only exception to the requirement that benefits must be denied within 120 days after the initial provision of benefits is if material facts relevant to the issue of compensability could not have been discovered through reasonable investigation. It is the burden of the employer/carrier to demonstrate the existence of this exception.
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Parties entered into a stipulation that required the payment of certain compensation benefits within 14 days after the agreement was approved by the judge. JCC concluded that the payments were late since the employer/carrier sent the checks to the employer/carrier’s counsel on the 14th day rather than to the claimant’s attorney. JCC imposed sanctions based upon the late payment of benefits. On appeal, court determined that the award of penalties for the late payment of benefits was in error. Pursuant to Florida Rule of Workers’ Compensation Procedure 4.150, sanctions are awardable only when there is a showing of willfulness. Willfulness has been characterized as the deliberate defiance of a JCC’s order. JCC made no findings in regard to willfulness for the delayed payment of benefits and accordingly, case remanded to JCC for such findings. Note that in the award of penalties pursuant to 440.20(8), Florida Statutes, there is a mandatory penalty requirement if compensation is not paid timely. See Paver Development Corp. v. McDevitt, 419 So.2d 1156(Fla. 1st DCA 1982). Penalties imposed in this case were those as provided pursuant to Rule 4.150, said penalties to be discretionary by JCC.
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A 20% penalty is payable on all non-award compensation installments not paid within the seven-day grace period.
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A 20% penalty is required to be paid on all late payments of non-award disability benefits. The employer/carrier could not properly pay a 20% penalty on the first late payment of permanent total disability benefits and a $5.00 penalty on each subsequent late payment.
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Section 631.913(2), Florida Statutes, precludes the imposition of penalties and interest in regards to a carrier in receivership. Appellant in this case was a contract third party administrator for the Florida Workers
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In accordance with Section 440.20(6), Florida Statutes, a 20% penalty is payable on all non-awarded compensation installments not paid within seven days of the time that such benefits are payable. The court basically determined that any reference in this section to a $5.00 penalty as opposed to a 20% penalty constituted an inadvertence on the part of the legislature in failing to delete that provision. The court also determined that the Division of Workers’ Compensation was incorrect in its interpretation of the provisions of Section 440.20(6) as referenced in Florida Administrative Code Rule 38F-24.0231. Dissenting opinion in part.
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In workers' compensation proceedings, the appellate court has authority under Rule 9.140, Florida Rules of Appellate Procedure, to impose sanctions against an attorney for violation of the appellate rules or for filing a frivolous appeal. The rule provides that sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorney's fees or such other sanctions as the court deems appropriate. Court issued a show cause order as to why sanctions should not be imposed against the appellant's attorney. Sanctions were considered based on the delay and dilatory tactics of appellant's attorney resulting in prolonged non-payment of benefits to an elderly and seriously injured claimant. In addition, the court determined that the appellant's attorney should have known when he filed the appeal that the appeal lacked any merit. The court further stated that the appeal was filed in bad faith for the purpose of delaying payments of benefits to the injured worker. Appellant's attorney ordered to pay the claimant's attorney's fee from the attorney's own funds without reimbursement from his client.
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In accordance with Section 440.20(11)c, a lump sum settlement amount must be paid within 14 days after the date the Judge of Compensation Claims mails the order approving the attorney's fees. The JCC has the authority and jurisdiction to impose sanctions for a late payment of a settlement reached pursuant to this section. However, sanctions can be implemented only upon a showing of willfulness. The denial of sanctions by the JCC affirmed. The JCC determined that the non-payment was not willful. Court ruled that appellant had failed to show that the JCC abused her discretion by this factual determination. Judge's order denying sanctions for the late payment of the settlement proceeds affirmed on appeal.
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Court determined that it was error to deny penalties on indemnity benefits where employer/carrier neither paid benefits within 7 days of when they became due nor exercised the "pay and investigate option".
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Court determined that it was error to deny penalties on indemnity benefits where employer/carrier neither paid benefits within 7 days of when they became due nor exercised the "pay and investigate option".
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Court affirmed JCC's determination that
employer/carrier was estopped in denying the
compensability of the claim because they did not deny
it within 120 days of the commencement of payments
thereon. JCC expressly found that a report from the
physician authorized to treat the claimant's back put
the employer/carrier on notice that the claimant's
lower back condition consisted of a preexisting
degenerative disc coupled with an aggravation thereof.
This report put the employer/carrier on notice of a
need to make a reasonable investigation of the claim
prior to paying benefits to determine the
compensability of the low back condition. By making
payment for the condition in question for over 120
days, the employer/carrier was thereafter estopped in
denying compensability of that condition.
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Competent substantial evidence supported the Division
of Workers' Compensation's (Division) determination
assessing a penalty against an employer of $376,947,000
under Section 440.107(7), Florida Statutes, 2000.
Division found that appellant's workers were employees
and not independent contractors thus requiring
appellant to obtain workers' compensation coverage for
these workers.
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Claimant was entitled to an award of penalties where
evidence supporting claim of awarded temporary partial
disability benefits was available to employer and
carrier at the time payments were declined.
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JCC's award of penalties reversed. Order awarding
penalties must set forth ultimate facts upon which
penalties are based. The citation of a decision by the
First District Court of Appeal is not sufficient to
support an award of penalties. The award must be
supported by ultimate facts apart from the citation of
authority.
Employer/carrier appealed award of penalties based on
the fact that a timely Notice of Denial had been filed.
See Section 440.20(7), Florida Statutes (1991). Court
determined that JCC erred in the award of penalties
since the employer/carrier controverted the claim
within 21 days of the claimant's request for temporary
partial benefits for the time periods in question.
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The issue in this case is whether a claim for penalties
was waived if not demanded at an emergency conference
prior to the final hearing. JCC determined at
emergency conference that temporary total benefits were
due expressly reserving jurisdiction to determine
entitlement to penalties and all other issues raised in
Petition for Benefits.
Subsequent to emergency conference, Petition for
Benefits itself came up for final hearing at which time
additional temporary total benefits were awarded
(benefits payable in excess of those ordered in the
emergency conference). In addition, penalties
were ordered on benefits ordered to be due at
the emergency conference. Court determined that
an award of penalties for benefits awarded at emergency
conference is not foreclosed where such
penalties are not demanded at an emergency conference.
Claimant did not conclude the prosecution of her claim
for benefits without specifically claiming as
additional compensation a penalty as provided for in
Section 440.20(6), Florida Statutes. A clear purpose of
an emergency conference is to isolate certain matters
to be expedited for resolution and the emergency
conference is not considered a final conclusion of all
issues.
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Penalties cannot be avoided by the employer/carrier for
late payment of compensation by simply filing a Notice
of Denial within 14 days of a claim. Upon receipt of
the claim, the employer/carrier must either pay the
benefits within 7 days to deny the claim, or exercise
the 120 day pay and investigate option under Section
440.20(4), Florida Statutes. In this instance, the
employer/carrier failed to take any action and
accordingly, penalties were due and payable.
Judge's order denying payment of surgical costs
affirmed since claimant had failed to request prior
authorization for the surgery as required by sections
440.13(2)(c) and 440.13(3)(i), Florida Statutes (1994).
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Claim filed for penalties and interest against the
Florida Workers' Compensation Insurance Guaranty
Association for the untimely payment of settlement
proceeds. The employer's insurance carrier
had become bankrupt and the claimant had elected to
seek benefits from the guaranty fund pursuant to
Section 631.929, Florida Statutes. This provision
provides that if an injured worker elects to obtain
benefits against the guaranty fund under this section,
no penalties and interest are payable.
As required by Section 440.20(7), settlement proceeds
must be payable within seven days after the JCC issues
an order approving the settlement, with an additional
five days allowed for mailing. Notwithstanding this
provision, penalties and interest against the guaranty
fund are not payable. The provision precluding the
payment of penalties and interest against the
guaranty fund also precludes recovery of such benefits
from the employer when the claimant has elected to seek
benefits from the guaranty fund.
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Employer/carrier appealed judge's order which required
the payment of medical bills based on the fact that no
evidence was presented establishing the amounts of the
bills. Order affirmed but case remanded for further
proceedings allowing the parties the opportunity to
present evidence as to the amounts of the bills.
Denial of penalties for the late payment of benefits
reversed. Employer/carrier had filed a Notice of
Denial within 14 days of the filing of the Petition for
Benefits and the JCC found that because the Notice of
Denial had been timely filed, no penalties were due.
In relying on the case of Eastern Industries, Inc. v.
Burnham, 750 So.2d 748, the court determined that
penalties may be due even if a Notice of Denial was
filed within 14 days of the filing of the Petition for
Benefits.
Penalties are due if the employer/carrier refuses to
pay compensation at the time the facts then known to
the employer/carrier would support an obligation to
pay, unless a notice is filed under Section 440.20(4),
Florida Statutes, i.e., the pay and investigate
provision. The employer/carrier did not invoke the pay
and investigate provision of the workers' compensation
statute and there was no evidence that non-payment of
benefits resulted from conditions over which the
employer/carrier had no control.
There was a dispute as to when the employer/carrier
became aware of evidence that supported the claim for
compensation and case remanded to JCC to make findings
as to when the employer/carrier became aware of such
evidence. Based on those findings, the JCC should
determine whether penalties were due.
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$500 civil penalty ordered by JCC stricken from order
based upon confession of error by parties.
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Petition for permanent total benefits filed. Maximum
medical improvement reached and hearing. JCC found
claimant to have suffered a catastrophic injury
and PTD was ordered. Penalties and interest were
required to be paid by the employer/carrier going back
to the date of maximum medical improvement. On appeal,
permanent total finding affirmed but the award of
penalties beginning at MMI reversed.
Section 440.20(6), Florida Statutes (1994), mandates
the payment of penalties by the employer/carrier
which refuses to pay compensation benefits at the
time the facts then known to the employer/carrier would
support an obligation to pay, unless a notice is filed
under Section 440.20(4) ("pay and investigate"
provisions) or unless such non-payment results from
circumstances over which the employer or carrier had
no control. As of the date of MMI, it was not known by
the employer/carrier that the claimant was PT. The
finding of PTD by the JCC was premised not upon medical
evidence of a permanent and total disability but upon
the claimant's inability to secure work in the national
economy given her restrictions, age, education, and
work experience. JCC relied on testimony of claimant's
vocational experts to establish entitlement to PTD
benefits. The claimant's experts did not file their
reports until two weeks prior to the merits hearing.
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Sections 440.20(7) and (9), Florida Statutes (1993)
provide for the award of penalties and interest on any
installment of compensation not paid within fourteen
days from the date when it is due. In this instance,
benefits were not timely paid and accordingly, the
JCC's award of penalties and interest affirmed.
Claimant recovered benefits from a third party
tortfeasor and it was determined that the workers'
compensation carrier had a 25% lien on past benefits
paid and future benefits payable. The employer/carrier
attempted to cap the claimant's workers' compensation
benefits and other disability compensation at the
claimant's average weekly wage level pursuant to
Escambia County Sheriff's Department v. Grice, 692
So.2d 896 (Fla. 1997). Court determined that Grice
offset would be calculated after the 25% lien reduction
was made. In other words, the Grice offset would not
first be applied and then the 25% lien reduction taken.
The lien reduction would be taken before the Grice
offset is taken. Question certified to Florida Supreme
Court.
Court determined that Grice offset cannot be applied
retroactively.
Court declined to consider employer/carrier's issue
concerning entitlement to attorney fees and costs
because the issue was not ripe for appeal. The JCC
reserved jurisdiction to determine the amount of the
attorney fee.
Question considered by court was the amount or cap that
an employer/carrier can receive in reducing workers'
compensation benefits payable to the claimant in
satisfaction of its third party lien pursuant to
Section 440.39(3)(a). Employer/carrier argued that
they were entitled to receive in offsets sums equal to
the net amount received by the claimant in the
third party action. Court rejected this argument and
determined that the cap for employer/carrier recovery
in the third party action was the percentage of
recovery of the net proceeds received by the claimant.
Court determined that workers' compensation carrier's
lien was 25%. Claimant netted approximately $60,000 in
the third party action after attorney fees and costs
were deducted. Court determined that the cap of the
workers' compensation lien was 25% of the $60,000 net
received as opposed to the $60,000 net amount received
by the claimant in the third party action. Question
certified to Florida Supreme Court.
Claimant's disability pension plan provided that the
employer was allowed to reduce disability pension
benefits payable by amounts of workers' compensation
benefits paid. Since such a provision in the
disability policy was in existence, the employer should
be required to pay full workers' compensation benefits
and thereafter apply any offset allowed under
the Grice decision against claimant's disability
retirement pension benefits. If no such provision
exists, the judge of compensation claims should
consider Section 440.21(1) and the claimant's prorata
contributions to the disability retirement plan in
determining any offset against workers' compensation
benefits.
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JCC erred in awarding attendant care benefits for a six
week period of time when the claimant was not receiving
any attendant care services. See for example, Ramada
Inn South Airport v. Lamoureux, 578 So.2d 48 which
determined that it was improper to order payment for
past attendant care based solely upon claimant's need
for care and without regard to the services actually
performed. Appellee in this case conceded that JCC
erred in awarding penalties and interest on past
attendant care benefits.
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The JCC has jurisdiction to determine the correct
offset (social security and long term disability
benefits) and the resulting amount of permanent total
compensation benefits due claimant. Contrary to the
conclusions reached by the JCC, the petition brought by
the claimant seeking to establish the correct offset
was not an enforcement matter subject only to the Rule
Nisi jurisdiction of the circuit court. There is no
question that the JCC has no jurisdiction to enforce a
compensation order. Court ruled that the proceedings
to determine offsets was not an attempt to enforce an
order.
A JCC may assess penalties arising from the carrier's
act of taking an excessive offset. In addition,
payments made on the 14th day after benefits are due is
late under Section 440.20(7), Florida Statutes (1995).
The employer/carrier under this statute has 12 days to
mail a check, i.e., the 7 day statutory time frame plus
the 5 day mailing time provided by Rule 4.030(c),
Florida Rules of Workers' Compensation Procedure.
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Claimant sought an adjustment to her average weekly
wage based upon unreported tips. Tips are included in
the average weekly wage calculation only if they are
reported for federal income tax purposes. See
440.02(24), Florida Statutes. Tax forms introduced
into evidence did not indicate that unreported tips had
been reported for tax purposes and accordingly, they
would not qualify for wages in determining the average
weekly wage.
Court determined that it was error in not awarding
penalties and interest to the claimant. The initial
payment of indemnity benefits was late because the
employer was confused about the identity of his
workers' compensation insurance carrier. Even though
the employer may have in good faith been unable to
establish who his carrier was, court determined that
this did not excuse the award of penalties as being a
situation over which the employer or carrier had no
control. See Section 440.20(6), Florida Statutes. The
forgiving of penalties and interest is appropriate only
when neither the employer nor the carrier could have
prevented the untimeliness.
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In following the case of North River Insurance Company
v. Wuelling, 683 So. 2d 1090, court determined that
employer/carrier's failure to timely file a notice of
denial did not forfeit their rights to contest
compensability of an alleged on-the-job accident.
Employer/carrier's failure to file timely notice of
denial was the procedural equivalent of denying a
petition for benefits.
Temporary total disability and medical benefits found
properly payable through the date at which time the JCC
found the claimant to have reached maximum medical
improvement.
Dissenting opinion. Dissenting judge opined that JCC
erred in establishing MMI date. There was a
controversy between two doctors as to the correct MMI
date. Although a JCC need not generally explain why
the testimony of one doctor is accepted over that of
another, an explanation is required if the reason is
not apparent from the record or if it appears that the
JCC overlooked or ignored evidence. This rule is
particularly applicable in regards to the establishment
of an MMI date. A determination of MMI should be based
upon a clear explicit expression of that fact set forth
in medical records or medical opinion testimony.
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Section 440.20(6)(1995) awards penalties if
compensation is not paid within 7 days of the date in
which such compensation becomes due. This provision
imposes a penalty for late payment of compensation due
because of wage loss occurring after January 1, 1994
even where the industrial accident occurred before
January 1 of 1994. Under this section, the period for
determining if benefits are timely paid for penalty
purposes begins when appropriate forms are received by
the employer/carrier. There is no additional 5 day
period allowed for mailing purposes. To the extent that
Section 440.20(6), Florida Statutes, (1995) conflicts
with Florida Administrative Rule 38-F-3.019 which would
allow for the payment of benefits within 14 days of the
receipt of the wage loss claim, the statute controls.
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JCC erred in awarding PT benefits to claimant because
the employer/carrier failed to file a Notice of Denial
within 14 days of the filing of a Claim for Benefits.
See North River Insurance Company v. Wuelling, 21 FLW
D2492. See Also: Commercial Carrier Corp. v. Madsen,
22 FLW D1054 (1st DCA 1997).
The JCC has broad discretion in regards to receiving
last minute surveillance evidence. However, certain
factors must be considered in exercising that
discretion. It is error to exclude certain late
disclosed evidence in the absence of evidence of actual
prejudice to the opposing party.
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The employer/carrier appealed an order which determined
compensability in favor of the claimant on the basis of
Waffle House v. Hutchinson, 673 So. 2d 883 (Fla. 1st
DCA 1996). Appellee filed a confession of error noting
that the court receded from the Waffle House opinion in
Waffle House v. Wuelling, 683 So. 2d 1090 (Fla. 1st DCA
1996). JCC's order reversed.
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Employer/carrier's failure to pay a medical bill as
required by order warranted the sanction of an
attorney's fee award.
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JCC erred in including in claimant's average weekly
wage the employer's contributions to the claimant's
pension and Medicare benefits. The amended definition
of wages found in Section 440.02(24), Florida Statutes,
(1993) sharply curtailed the fringe benefits that could
be considered in calculating an employee's average
weekly wage. Pension benefits, since enactment of the
amendment, are no longer included in the calculation of
the average weekly wage. Even prior to the amendments,
inclusion of social security taxes in a worker's
average weekly wage calculation was incorrect since
such benefits have no real present value.
Case remanded to JCC on the issue of penalties. The
appellate court could not determine from the record
whether the employer controverted the claim within 21
days following the service on it of the Petition for
Benefits. The pre-trial stipulation showed the claim
being filed on a certain date but the Notice to
Controvert made reference to a prior date of claim.
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(en banc) Court receded from its opinion in Waffle
House v. Hutchinson, 673 So. 2d 883 (1st DCA 1996) and
determined that the employer/carrier does not
automatically accept compensability of a claim by its
failure to timely file a notice of denial to a petition
for benefits. Although not relevant to the findings in
this case, the court suggests that the failure to file
a timely notice of denial would preclude denial of a
claim by the employer/carrier had the employer/carrier
elected to "pay and investigate" a claim for a period
of 120 days as provided for in Section 440.20(4),
Florida Statutes.
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Parties settled case and agreed settlement benefits
would be paid within 14 days of "the date of entry of
the order." Check not mailed to claimant within 14
days of the judge's signature on the order approving
the settlement. However, it was mailed to the claimant
timely if the 5 additional days for mailing referenced
in Rule 4.030(c), Florida Workers' Compensation Rules
of Procedure were considered. Court ruled in Palm
Beach County School Board v. Miller-Neal, 674 So. 2d
759 (1st DCA 1996) that 5 additional days are added for
mailing to determine timely payment of a settlement
which stated that benefits were due in a certain period
"after it becomes due." Payment becomes due under the
Miller-Neal decision by adding 5 days for mailing from
the date the judge mails the order approving the
settlement. However, the parties in this case agreed
that payment would be due within a time frame from the
date of the entry of the order which distinguished this
case from the Miller-Neal decision. Since the
settlement amount was not timely paid to the claimant,
penalties deemed to be due to claimant. Dissenting
opinion.
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Order entered by JCC denying her claim for permanent
total disability benefits and awarding wage loss
benefits and vocational rehabilitation assistance.
Court determined that JCC erred in failing to award
claimant penalties and interest on the award of wage
loss benefits. The employer/carrier failed to inform
the claimant of her rights and obligations with regards
to wage loss benefits. Although the employer/carrier
may decline to pay wage loss benefits until completed
forms are submitted, they do so at the risk of
penalties and interest if they have not performed their
statutory obligations with regard to wage loss
benefits.
In previous order entered by JCC and considered on
appeal, the claimant had made claim for vocational
rehabilitation. The claim for vocational rehabilitation
had been in the previous claim for benefits and the
pre-trial. However, the judge had failed to rule on
these benefits and that failure had not been appealed
by the claimant. Court determined that claimant had
abandoned the claim for rehabilitation benefits and the
JCC erred in awarding this benefit.
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Claimant allegedly suffered on-the-job accident.
Employer filed notice of denial. Thereafter, petitions
for benefits were filed and the employer failed to file
notices of denial in response to these petitions.
Notwithstanding the fact that an initial notice of
denial was filed, the court found that the failure to
file notices of denial to the petitions required the
employer/carrier to pay the claimed benefits,
notwithstanding potential defenses that could be
asserted. Section 440.192(8), Florida Statutes,
requires the employer/carrier to file a notice of
denial or pay benefits within 14 days after receipt of
a petition for benefits by certified mail. A carrier
that neither pays nor timely denies compensability is
deemed to have accepted the employee's injuries as
compensable.
Subsection 440.192(8), Florida Statutes, does not
impact the substantive rights of the parties or alter
their statutory entitlement to benefits. Accordingly,
the changes in this provision are procedural as opposed
to substantive and have retroactive application. (Case
subsequently in part overruled. See the North River
Insurance Company v. Wuelling, 21 FLW D2492.)
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Parties entered into a joint petition settlement
agreement which was approved by JCC. Payment of
settlement was made by employer/carrier twelve days
after order entered. The question in this case is
whether the payment of the settlement was late and
claimant was entitled to penalties pursuant to the
terms of Section 440.20(7), Florida Statutes.
Following entry of an order approving a washout
settlement, the date that the order is mailed to the
parties (rather than the date it is entered) controls
in determining the time frame for payment of the
settlement amount to the claimant. Payment is deemed
to be made on the date that the employer/carrier mails
the check to the claimant or his attorney. Court
determined that in following Rule 40.030(c), Florida
Workers' Compensation Rules of Procedure, payment to
the claimant becomes due five days after the order
approving the washout settlement was mailed to the
parties. Five days after the order is entered, the
employer/carrier then has up to seven days to make a
payment to the claimant or incur a mandatory penalty.
Court determined in this case that payment was timely
made and penalties denied.
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Judge erred, based on attorney client privilege, in not
allowing the employer/carrier to inquire of the
claimant as to whether his knowledge of the need to do
a work search for entitlement to wage loss came from
instructions from his attorney. Statements made by the
claimant's attorney advising the claimant of the
statutory work search requirement is not a confidential
communication within the purview of Section 90.502,
Florida Statutes.
Employer/carrier did not waive its defense to a wage
loss claim of failure to do a good faith work search
because this defense was not listed in the Notice of
Denial. This defense was noted in the pre-trial
stipulation which had been approved by the JCC and the
defense was properly at issue in the workers'
compensation proceedings.
The question of whether the claimant has reached MMI is
essentially a medical question and should not be
confused with when a claimant is able to return to work
in some capacity which is a mixed question involving
medical and other evidence including the claimant's own
testimony. The determination that MMI has been
achieved should ordinarily be based upon a clear,
explicit expression of that fact set forth in medical
records or medical opinion testimony. Medical doctors
in this case testified directly as to MMI and judge
rejected this testimony based upon the judge's review
of the medical records indicating that the claimant had
not received medical care for a significant period of
time. Judge's finding which was contrary to testimony
of doctor determined to be in error.
If an employer fails to pay compensation benefits when
due, it is mandatory that a 10% penalty be assessed.
The penalty is excused only if a timely and appropriate
Notice of Denial has been filed. A Notice of Denial
pursuant to Section 440.20(6), Florida Statutes (1993)
must be filed within 21 days of knowledge of an alleged
injury or death. In determining compliance with the 21
day requirement, the JCC must look to the date on which
the Notices of Denial were filed with the Division, not
the date the notice was sent to the Division. JCC
erred in determining entitlement to penalties based
upon the date the Notices of Denial were sent to the
Division rather than the date the notices were filed
with the Division.
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Maximum medical improvement marks the date at which
recovery or lasting improvement from an injury can no
longer be anticipated. The determination of maximum
medical improvement is essentially a medical question.
A judge of compensation claims ought not to accept a
stipulation as to a date of maximum medical improvement
if the evidence is at variance with the stipulation and
good cause is shown for modification of the stipulated
date. Competent and substantial evidence supported the
judge's finding as to MMI.
Entitlement to temporary total disability benefits can
be shown by medical evidence of an inability to work or
evidence of a good faith albeit unsuccessful work
search. Claimant in this instance did not do a work
search. Court determined that the combination of
medical evidence and the testimony of a vocational
specialist constituted competent substantial evidence
which supported the award of temporary total disability
benefits.
The employer filed timely notices to controvert each
claim for wage loss benefits. However, there was no
notice to controvert the claim for temporary total
disability benefits. The failure to file a timely
notice to controvert a claim for a certain class of
benefits may subject an employer or carrier to
penalties. There was no evidence that a formal claim
for temporary total benefits was claimed in this
instance except in the pre-trial stipulation wherein
the employer denied all benefits claimed. Since there
was no claim for temporary total benefits, it was error
to award penalties.
The evidence in this case indicated that the claimant
was cognizant that his physicians had recommended that
he attempt light duty work and claimant was appraised
clearly of his duty to conduct a job search. In these
circumstances, the claimant cannot rely upon the line
of cases which hold that the work search requirement is
waived when the record reflects that the employer did
not expressly advise the claimant of his or her
obligation to do conduct a work search.
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Effective January 1, 1994, penalties are payable if an
order is not paid within 7 days as opposed to the
previous statutory provision allowing for a 30 day
payment period. Employer/carrier did not pay
settlement within 7 days of order of judge approving
joint petition settlement agreement. Even though
accident occurred prior to January 1 of 1994, the court
found that the statutory change was remedial and
accordingly, applied regardless of the date of
accident. In such circumstances, the court found that
the award of penalties is mandatory and the judge erred
in not awarding such.
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An attorney's fee is not compensation within the
meaning of Section 440.20(8), Florida Statutes.
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Issue as to whether claimant was entitled to temporary
partial for a certain period of time because of failure
to submit wage loss request forms was not raised before
JCC. Accordingly, issue not preserved for appeal.
Under Section 440.20(7), Florida Statutes, the
employer/carrier is not liable for interest and
penalties when a non-payment of benefits results from
conditions beyond the control of the employer/carrier.
Claimant had failed to provide information as to her
tips in establishing the average weekly wage and
accordingly, the employer/carrier could not determine
how much in wage loss benefits were due.
A claimant may not be awarded wage loss benefits for a
period in which wage loss forms had been submitted.
Denial of wage loss benefits for certain periods of
time affirmed.
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Claimant injured when thrown from a bulldozer. At the
time of the accident, claimant was not wearing a seat
belt and the employer took the position that benefits
should be reduced by 25% for violation of a safety
rule. In order to reduce compensation otherwise
payable by 25% for violation of a safety rule or
standard, there must be a showing of a causal
connection between the violation of the safety rule or
standard and the resulting accident. The employer has
the burden of proving the existence of a causal
relationship between the injury sustained and the
claimant's failure to wear a safety device. In this
case, there was no showing of a causal connection.
Accordingly, employer precluded from reducing benefits
by 25%.
Court reversed denial of penalties. No timely Notice
of Denial was filed. Unless a Notice of Denial is
filed under Section 440.20(6), Florida Statutes, or
failure to pay is found to be beyond the
employer/carrier's control, a punitive penalty should
be added to any installment of compensation benefits.
In this instance, penalties were awarded on the 25% of
benefits otherwise due the claimant which were not
timely paid since the employer/carrier had wrongfully
reduced benefits based upon an alleged violation by the
claimant of a safety standard. Penalties are payable
where any installment is paid in part but the rest is
withheld incorrectly.
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The parties agreed that a request for an increase in the average weekly wage would not be decided in the scheduled hearing. Court determined that JCC erred in view of this stipulation in entering an order increasing the average weekly wage, contrary to the agreement by the parties. An award on a claim which has been withdrawn by stipulation of the parties neither comports with the general equirement that a claim must identify the matters to be litigated nor comports with the prohibition against awarding benefits which are beyond the scope of the hearing.JCC erred in awarding penalties against the employer/carrier without stating the ultimate facts upon which such penalties are based. An order must set forth the findings of fact or conclusions of law that support the imposition of penalties.
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Question certified to Supreme Court as to whether the employer is excused from paying a penalty since benefits otherwise due the claimant were withheld in good faith in reliance upon the validity of a city ordinance authorizing the withholding of benefits.
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Penalties should not be imposed where the employer/carrier timely filed a Notice to Controvert. Case remanded for judge to make a determination as to whether the employer/carrier sufficiently controverted the claim or if the claim was not timely controverted, whether the employer/carrier had a valid excuse for not doing so.
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The court reaffirmed prior decisions that the case of { Barragan v. City of Miami 545 So.2d 252 Case_503} should be applied retroactively. Also, the court affirmed the award of penalty on the retroactively awarded setoff benefits.
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Court determined that the Supreme Court decision of { Barragan v. City of Miami, 545 So.2d 252 Case_503} had retroactive effect to accidents occurring after July 1, 1973. The Barragan decision prohibited the reduction of pension benefits payable to the claimant where workers' compensation benefits were being received. The Supreme Court case of Barragan v. City of Miami, 545 So.2d 252 precluded the reduction of city pension benefits for amounts received by the claimant in workers' compensation benefits. Court certified to Supreme Court the question of whether the reduction of pension benefits constituted compensation under the Florida Workers' Compensation Act warranting the payment of penalties. Barragan basically restored pension benefits in amounts previously deducted for workers' compensation paid. The decision of Barragan did not increase workers' compensation benefits but increased city pension benefits.
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Supreme Court in the opinion of { Barragan v. City of Miami Beach 545 So.2d 252 Case_503} determined that a City of Miami ordinance allowing for an offset against city pension benefits for workers' compensation received was unconstitutional. This court held that the Barragan decision had retroactive effect to 1973 when Section 440.09(4) was repealed. Ordinarily, a claim that is ripe for adjudication is waived if not litigated or considered in a hearing. An exception to this rule, however, is if the law has changed since the initial hearing or if there has been an intervening decision since the initial hearing that would change the benefits payable. At the time of the first hearing, a claim for benefits was ripe for adjudication but it was not claimed. If claimed, those benefits would have been denied based upon the law and the court decisions at the time. Thereafter, a court decision was entered allowing for the benefits to be paid. Court determined that the claim for benefits could be asserted since the laws had been changed since the first hearing and benefits were now payable.(On Motion for Rehearing-Original Opinion 17 FLW D1473)The case of {uldb Barragan v. City of Miami, 545 So.2d 252 Case_503} precluded the City of Miami from deducting workers' compensation benefits received by the claimant from disability benefits payable under a pension plan established by the City. Court determined that the Barragan opinion had retroactive effect and applied to compensable injuries occurring after July 1, 1973. Claimant failed to assert in prior hearing that the City of Miami could not take an offset against pension benefits payable for workers' compensation benefits received. Court determined that the failure to take this position in prior hearing did not preclude him from thereafter asserting the inappropriateness of the offset. At the time of the original hearing, caselaw did not permit the offset. At the time of the subsequent hearing, the law disallowed the offset.If an employer fails to pay compensation benefits when due, it is mandatory that a 10% penalty be assessed. The penalty can be excused only if a timely and appropriate Notice to Controvert has been filed or the employer's non-payment has resulted from conditions over which the employer had no control. In this case, benefits were not paid because of the existing law at the time the employer did not pay. However, by caselaw, that law changed. Court determined that a penalty was due since neither of the two exceptions to the payment of penalties as above noted were applicable. The burden of proving that penalties are not due based on the above two stated exceptions to the award of penalties is on the employer/carrier. Issue certified to the Supreme Court.{uldb Barragan v. City of Miami, 545 So.2d 252 Case503} stated that an offset of workers' compensation benefits received against pension benefits of the city could not be taken as long as the claimant was not paid in excess of his average weekly wage at the time of the accident. Court refused to allocate excess benefits paid over average weekly wage between the City's pension fund and the workers' compensation benefits. Because of the fact that the employer was self-insured, the allocation of benefits payable is an internal municipal matter appropriately resolved by the City alone.
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Carrier is not required to pay penalties on benefits due in the future.
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Claimant being paid wage loss benefits and judge determined that claimant was PT. Court determined that there was competent and substantial evidence to support PT determination. Based on the facts of this case and since wage loss benefits were being paid, penalties and interest awardable only on PT supplemental benefits.
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Penalties and interest are not assessible on the late payment of funeral expenses. Court determined that a funeral expense like a medical payment is not compensation upon which penalties and interest can be assessed.
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Parents of deceased employee determined to be dependents of employee and therefore entitled to death benefits pursuant to 440.16, Florida Statutes. The burden was on the parents to show that because of physical or mental incapacities, or lack of means, they were dependent on the deceased employee for support. There was competent and substantial evidence of record in this case to substantiate that support.The receipt of large life insurance funds following the death of a deceased employee may be relevant in determining the continued dependency of the employee's parents on the employee. The receipt of life insurance benefits by the deceased employee's parents in this case did not preclude a finding of dependency.Penalties denied since formal notice to controvert was filed within the 21 day period prescribed by Section 440.20(6), Florida Statutes.
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1987 amendments to Section 440.02 regarding valuation of non-cash compensation for average weekly wage determination are substantive and should not be applied retroactively.The 1990 amendment to Section 440.15(1)(b), Florida Statutes, requiring a 100 mile work search is a substantive amendment and has no retroactive applicability.Penalties are awardable where benefits were not paid until more than 30 days after an appellate court decision becomes final. The penalties are payable at the rate of 20%. Interest is also payable.Section 631.57(1)(b), Florida Statutes, prohibits the award of pre-judgment interest and penalties against FIGA. Judge's order awarding interest and penalties reversed. Nothing prevents an award of interest on compensation benefits not paid after the final judgment is entered. The employer may be held liable for pre-judgment, interest and penalties. Any interest which FIGA as the successor of a workers' compensation carrier at risk which has gone into liquidation is not required to pay must be paid by the employer.Claimant established entitlement to permanent total disability benefits, despite her ability to perform light duty employment. The claimant performed a lengthy and exhaustive job search resulting in an inability to perform employment within her limitations.
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Penalties awarded for late payment of attorney's fees. Even though the benefits were paid because of a legitimate mistake by the employer/carrier, penalties are mandatory and are automatically payable regardless of the reasons for the late payment.
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City deducted from city pension plan permanent total benefits otherwise payable. At the time such deductions were approved by Florida case law. Susequent case law changed this right of deduction. Court determined that penalties were still due and payable even though at the time the deductions were made they were permitted. Penalties were awarded under Section 440.20(8) F.S.The Judge of Compensation Claims has jurisdiction to order the City of Miami to pay permanent total benefits which the city had deducted from the claimant's disability pension plan pursuant to local ordinance.
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If penalties are awarded the JCC must set forth findings of fact and conclusions of law that support the imposition of penalties.The question in this case is whether physician imposed work restrictions are a necessary pre-requisite to an award of wage loss benefits. Court determined that it is a permanent impairment rating not the existence of physician imposed restrictions that is pre-requisite to a wage loss claim. A claimant with a permanent impairment rating has some physical limitations and can establish his wage loss claim by demonstrating a causal connection between the physical limitation and his lost earnings. Although physician imposed restrictions are a means of establishing the causal connection the claimant may also offer an extensive unsuccessful job search as proof.
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When workers' compensation benefits are paid at the inappropriate average weekly wage penalties and interest are due for any installments not correctly paid.
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The JCC's denial of penalties was reversed for failure of the judge in his order to recite ultimate facts and conclusions supporting the decision.Court determined that there was sufficient evidence of record to substantiate the judge's determination that there was a causal connection between an exposure on the job and resulting medical problems. The opinions relied upon by the JCC were not based upon speculation or conjecture but upon a competent chain of evidence reasonable inferences and an objective and deductive diagnosis which sufficiently laid the predicate for the doctor's opinions on causal connection.Court determined that claimant had not yet reached maximum medical improvement and therefore a finding of the fact that the claimant was permanently and totally disabled was premature. So long as there is a reasonable expectation that further improvement is possible a claimant cannot be considered to have reached MMI.
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It is improper to assess a penalty without indicating the basis of the award.Court determined that it was error for JCC to award payment of medical bills where payment of bills was not an issue at the hearing. Issues claimed and ripe for adjudication must be litigated.
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In addressing the issue of the payment of penalties the judge is obligated to recite the ultimate facts and conclusions supporting his decision whether to award penalties. The order in this case failed to contain such recitations. The denial of a penalty was reversed and the cause remanded for further findings as to whether penalties should be awarded.Following compensable injury claimant returned to family home in Costa Rica. There she was able to obtain employment and sought wage loss benefits. Employer/carrier attempted to defend wage loss claim by presenting evidence comparing the economic conditions in Costa Rica with those in the United States attempting to show that the prevailing rate of pay and standard of living in the two countries were different. Court ruled that such evidence was inadmissible and of no relevance in determining wage loss entitlement.
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Penalties are awardable where benefits were not paid until more than 30 days after an appellate court decision becomes final. The penalties are payable at the rate of 20%. Interest is also payable.
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Interest like penalties cannot be assessed on an award for past attendant care services.
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Penalties must be claimed in order to be awarded prior
to the conclusion of the prosecution of the claim
before the deputy commissioner. The deputy
commissioner may on his own motion raise the question
of the propriety of an award of penalties.Letter from
employer/carrier constituted notice to controvert
precluding an award of penalties relating to the
correct average weekly wage determination. Letter only
controverted inclusion of claimant's tips in average
weekly wage determination and did not specifically
relate to the inclusion of uniforms in average weekly
wage. Case remanded to deputy commissioner to
determine if notice to controvert also applied to the
inclusion of uniforms in average weekly wage
determination.
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The unreasonable delay in the employer/carrier's responding to the claimant's request for medical treatment and/or evaluation may constitute a rejection of such benefits for purposes of penalty assessments. The date specified by the claimant's attorney in his letter to the employer/carrier requesting authorization for a neurologist was considered to be the date of rejection for purposes of assessing penalties on unpaid temporary total benefits.
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Reimbursement for medical services is not classified as compensation and therefore late payment of medical bills does not subject the employer/carrier to penalties. Question certified to Supreme Court.
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Although the Florida Insurance Guaranty Association is exempt from payment of prejudgment interest and penalties the employer may not use the carrier's exemption as a shield to avoid its own liability. Section 440.20(7) Florida Statutes allows penalties to be brought against the employer or carrier depending on fault. Any interest which FIGA as successor of the workers' compensation carrier at risk which has gone into litigation is not required to pay must be borne by the employer. The same is true for interest. In this case the employer was held responsible for penalties in which it was at fault and for prejudgment interest which FIGA is not required to pay.Penalties may not be awarded if a Notice to Controvert is filed. Penalties can be awarded even though Notice to Controvert filed in regards to claims not specifically controverted.Court determined it was error for deputy commissioner to award benefits for periods of time that parties had stipulated compensation had been paid.An award of interest on the amount of benefits that should have been paid is automatic if the employer/carrier unsuccessfully controverts a claim.
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The award of penalties by DC was reversed by court because the order did not include a finding of fact or conclusion of law regarding the penalties awarded.
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The employer/carrier is not required to controvert an individual written rehabilitation plan as provided in the Florida Administrative Code Rules 38F.
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Court ruled that Division of Workers' Compensation has the authority to assess a penalty against a carrier who fails to timely send reports and forms required by statute or rule. Division has the authority to determine when such reports are filed and in what matter the filings are made.
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Claimant injured in compensable accident while working in two employments. Concurrent wages used to establish average weekly wage. After MMI claimant returned to full time employment but did not conduct work search seeking part time employment similar to that she had prior to the accident. The Court determined that the claimant was not required to seek a second position after she had returned to full time work following accident.The beginning time for determining if penalties are due for the late payment of wage loss benefits is not the date when wage loss request forms are received but rather when the employer/carrier first had knowledge of the claimant's compensable wage loss. An employer may decline to pay wage loss benefits until completed forms are submitted but must do so at the risk of being liable for penalties and interest.
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The deputy commissioner is required to assess penalties against the employer/carrier for compensation not paid within thirty days of the entry of an order. The deputy has no authority to deny penalties on the basis that the delay in payment was the result of the party's uncertainty as to the applicable average weekly wage. Petition for modification filed more than thirty days after entry of the order awarding benefits did not serve to stayenforceability of a compensation order.The deputy commissioner is required to assess penalties against the employer/carrier for compensation not paid within thirty days of the entry of an order. The deputy has no authority to deny penalties on the basis that the delay in payment was the result of the party's uncertainty as to the applicable average weekly wage. Petition for modification filed more than thirty days after entry of the order awarding benefits did not serve to stay enforceability of a compensation order.
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The Deputy Commissioner cannot award penalties for non-payment of a medical bill previously ordered payable by the deputy commissioner. Penalties do not apply to the late payment of sums which are not awarded directly to the claimant.Deputy commissioner has no jurisdiction to assess penalty for failure to pay outstanding medical bill as awarded in previous order. Penalties specifically have been held not to apply to late payment of sums which are not awarded directly to a claimant.
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Penalties on an award of death and dependency benefits to the deceased employee's widow were inappropriately awarded since the employer/carrier had filed a Notice to Controvert.
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The employer/carrier bears the burden of proving that penalties are not due. In this case the employer/carrier did not show why a Notice to Controvert was not filed and presented no evidence concerning their failure to pay death benefits. Therefore the court ruled that the deputy erred in failing to award penalties.
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Even though temporary partial disability request forms were never submitted to employer/carrier penalties were still due for a late payment of benefits. When employer/carrier knows or should know that benefits are due an obligation arises to take affirmative steps to make sure benefits are made available to a deserving claimant.
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Wage loss benefits are payable within 14 days of the
date upon which the employer/carrier has knowledge of
the compensable wage loss. "Knowledge of the
compensable wage loss" does not mean the date upon
which the employer/carrier receives the wage loss
request forms. In this case the employer/carrier had
knowledge of the claimant's entitlement to wage loss
prior to the actual receipt of the wage loss request
forms from the claimant. Accordingly penalties and
interest payable. Under applicable rules the
employer/carrier is required to advise the claimant of
his or her entitlement to possible wage loss benefits
and provide the claimant with the required forms. This
is an obligation of the employer/carrier even if they
disagree with the entitlement to benefits. The proper
vehicle to voice a disagreement with the entitlement to
benefits is throught the Notice to
Controvert.Employer/carrier representative testified
that wage loss benefits were paid timely upon receipt
of the wage loss request forms. Prior to receipt of
wage loss forms employer/carrier's attorney had taken
the deposition of the treating physician and determined
that there was a permanent physical impairment rating.
Upon knowledge of the impairment rating
employer/carrier did not notify the employee that he
may be entitled to wage loss benefits nor were wage
loss forms sent to the claimant (Rule 38F 3.18(2)).
Because of the employer/carrier's failure to follow the
rules of procedure and because the time in which wage
loss benefits may be due runs from the notice of
permanency as opposed to receipt of the wage loss forms
court determined that interest and penalties were due.
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Employer/carrier filed Notice to Controvert wage loss benefits. Deputy commissioner awarded penalties based on underpayment of temporary total benefits. On appeal the penalties were sustained notwithstanding the filing of the Notice to Controvert since the Notice to Controvert only related to the wage loss benefits claimed and not to the alleged underpayment of temporary total.Whether a claimant has conducted an adequate job search is a factual determination for the deputy commissioner. Court determined that there was competent and substantial evidence supporting the deputy's finding of an adequate job search.
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The deputy failed to award penalties and claimant appealed. Since claimant never raised as error within the time available for correcting the failure to award penalties denial of penalties was affirmed. Penalties are not awardable for payments of compensation for permanent disability.DC's order denying permanent total benefits was affirmed by court. Claimant had not performed a work search and there was no evidence that the claimant was unable to perform even light work without interruption.
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Attorney's fees are not compensation within the meaning of Section 440.20(8) F.S.
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Under the terms of Section 440.20(a) F.S. penalties are due if compensation is not paid within 30 days of when they become due. (This case actually dealt with the 20-day requirement as existed in the 1979 law.) Court determined that the period for paying benefits following an appeal begin to run when the mandate is issued by the court of appeal. In this case there was a motion for rehearing filed but the court ruled that the period for paying compensation ran from the issuance of the mandate as opposed to the order denying the motion for rehearing.Section 440.20(8) F.S. was amended effective July 1 1980 to extend the time within which compensation may be paid without penalty from 20 to 30 days. Court ruled that this provision only applied to accidents subsequent to July 1 1980 and could not be applied retroactively.
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If deputy commissioner awards penalties he must state the ultimate facts and conclusions supporting the imposition of such penalties. Court determined that deputy commissioner erred in awarding penalties without stating with particularity the basis of such penalties.
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It was erred to award penalties where a timely Notice To Controvert had been filed.
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The fact that the employer/carrier contested the claim
and did not provide any medical services to the
claimant does not excuse the timely filing of medical
bills with the employer/carrier.Employer/carrier did
not file timely Notice to Controvert i.e. on or before
21 days after the employer/carrier has knowledge of an
alleged injury or if the employer/carrier initially
accepts the claim but subsequently controverts it
within 10 days after the date of initial cessation of
benefits. Failure to file such a Notice to Controvert
could be the basis for an award of penalties even for
compensation accruing after the date of filing the
Notice to Controvert.Claimant reached MMI and at
hearing deputy commissioner withheld determination of
wage loss even though that issue was ripe for
adjudication and in controversy. Court held that
deputy commissioner had jurisdiction to reserve a
decision pending further evidence on the question of
wage earning capacity even though that issue was ripe
for adjudication at the time of the initial hearing.
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Alleged employer represented to claimant that it was the general contractor carrying workers' compensation coverage for all employees on a certain job who were not covered by subcontracting employers. Based upon those representations claimant accepted employment with contractor/employer. Court found that claimant had changed his position to his detriment by continuing to work without procuring appropriate insurance coverage and accordingly under the doctrine of estoppel the employer/contractor could not deny that it was the claimant's employer.Court affirmed the deputy's refusal to award penalties against the employer/carrier since penalties were not claimed by the claimant in the pre-trial stipulation.
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DC awarded a 20% penalty to claimant. The penalty amount was not paid to the claimant timely and the question in this case is whether a penalty could be awarded to the claimant for failure of E/C to pay a penalty timely. Court said that such a penalty could be awarded.
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Court determined that DC erred in awarding "appropriate penalties". The DC must identify what penalties are being awarded and must make findings of fact as to why penalties are being imposed.
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Having determined that the claimant was entitled to TTD
the award of penalties was proper unless non-payment of
benefits resulted from conditions over which the
employer had no control or notice to controvert was
properly filed with the division.
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Penalties cannot be assessed under Section 440.20(8) on the late payment of sums awarded to claiment's wife for nursing services. The payment of nursing services is not compensation within the meaning and application of the statute assessing penalties for the late payment of compensation.
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DC ordered permanent partial compensation and this was appealed by employer/carrier. DC order was affirmed and the question in his case is whether interest was due on benefits ordered which were subsequently affirmed on appeal. Court ruled that interest should have been paid on ordered benefits and the interest should run from the date the benefits should have been paid. If the employer/carrier fails to pay this interest then a penalty is due on the unpaid interest.
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If employer/carrier accepts initially claim as compensable and pays benefits but thereafter denies certain other benefits are due no attorney fee is due to the claimant's attorney if claimant prevails. This case concerned the attempt at assessing attorney fees based upon the denial of compensability requirement. Since employer/carrier had originally accepted claim as compensable no attorney fees would be due even though employer/carrier denied the right to future or further compensation. This case distinguishes the { Dolphin Tire Co. Case_2231} case which concerned itself with catastrophic temporary total.Penalties should not be imposed against the employer/carrier if there is a legitimate excuse for controverting a claim. In awarding penalties the DC has the obligation to state the ultimate facts and conclusions supporting the imposition of a penalty.
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Claimant timely paid benefits but at incorrect rate. Proper adjustments were made to correct average weekly wage and court ruled that even though TT was timely paid the payments were made in the incorrect rate. Accordingly penalties were due absent a showing by the employer/carrier that there was a reasonable excuse for failure to pay full benefits.
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Judge failed in his order to state whether the additional disability resulted from the claimant's wage earning capacity loss or an increased anatomical impairment. Court determined that order failed to sufficiently identify the ultimate facts on which the award is based and accordingly, reversed for further findings.Penalties cannot be awarded for failure to timely pay permanent disability. Section 440.20(5), Florida Statutes (1979), provides for an award of penalties for late payment of compensation absent an award. That section has been held not to apply to payment of permanent disability.
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Court determined that the employer/carrier has 20 days from the DCA decision affirming benefits payable to claimant in which to pay these benefits. If not paid within this time period penalties are due.
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Penalties cannot be awarded for late payment of permanent partial disability.
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Penalties cannot be assessed for late payment of permanent benefits. Penalty provisions only relate to temporary total payments.
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Court ruled that conduct justifying the award of
punitive damages was not needed in assessing attorney
fees under the "bad faith" provisions of the Workers'
Compensation Act. Court ruled that the workers'
compensation law would not tolerate passive disapproval
and rejection of claims on mere technical matters of
form. The delay or denial of payment without a showing
of active effort and initiative on the part of the
carrier to fairly and expeditously determine its
obligations to place needed benefits in the hands of
the injured worker will justify the award of a fee.
The employer/carrier can avoid the payment of
penalties by filing a notice to controvert.
However the notice to controvert must state
particularly which benefits are being controverted. In
this case the notice to controvert only stated that
they were controverting payment of all benefits. Court
ruled this was not specific enough to controvert wage
loss benefits.
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Court denied penalty based on equitable basis for the carrier's failure to timely pay joint petition settlement order.
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The penalty provisions do not apply to the late payment of medical bills. Penalties can only be assessed on the late payment of money allowances payable to the employee as a consequence of his on-the-job accident and not to past due medical expenses.
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A failure to mention a penalty in an order by judge is the same as denying penalties. Interest on the other hand is automatic.
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Late payment of washout sum is grounds for levying of 20% penalty.
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The penalty provisions of the W/C statute do not relate to late payment of funeral benefits. Attorney fees however can be awarded for late payments of funeral expenses.
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Penalties cannot be assessed for the late payment of permanent partial benefits.
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Claimant was TT and being paid all benefits due. Claim filed by attorney and IRC said claim was premature and allowed motion to dismiss. IRC said JIC could have awarded penalties against claimant for frivolous claim.
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JCC's order did not clearly reflect the statutory basis for the award of attorney's fees, costs, penalties and interest. Accordingly, case remanded for clarification of the award.
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Court determined that it was error to deny penalty against the employer/carrier on the ground that the carrier had not received notice of the entry of an order approving a lump sum settlement. Since Section 440.20(12)(c), Florida Statutes, requires the Judge of Compensation Claims to enter an order approving a lump sum settlement within 7 days of the filing of such joint petition and stipulation, the employer/carrier had constructive knowledge of when the order must have been entered. Failure to pay within 30 days of the entry of the order approving a lump sum settlement deemed to be the basis for the award of penalties.
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Doctor recommended diagnostic studies to determine the source of the claimant's leg complaints. Court determined that diagnostic testing is compensable when it is conducted to determine the cause of a claimant's symptoms and whether they are related to a compensable accident.Benefits are due and payable on the fourteenth day of the period to be considered for payment. Penalties and interest are due if the payment is not made within fourteen days of the day the payment is due. In this case, benefits were paid on two occasions for a four week period. Since the benefits were not paid within fourteen days of the two week period for which benefits were due, penalties and interest were awardable.
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Failure to controvert claim for wage loss benefits in a timely manner required the award of penalties or the deputy commissioner must set forth reasons why penalties were denied.
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Error to award penalties where record reflects that employer/carrier timely filed notice to controvert.
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The deputy commissioner has the same obligation to state the ultimate facts and conclusions supporting the imposition of a penalty as he has in regards to any other award of benefits. Deputy commissioner's order reversed with directions to make appropriate findings and conclusions.
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Pursuant to the opinion of Barrigan v. City of Miami, 545 So.2d 252, court determined that penalty provisions of Section 440.20, Florida Statutes, had no retroactive effectprior to the Barrigan decision date of July 14, 1989. Penalties would be applicable to any offsets taken by employer for paid workers' compensation against pension benefits taken after July 14, 1989 but not applicable to offsets taken before that date.
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Appellee filed for declaratory and injunctive relief in Polk County, Florida seeking a determination that the procedures for the assessment of penalties by the Department of Labor and Employment Security were unconstitutional. Court determined that proper venue for such a cause of action is in Tallahassee. Absent waiver or exception in civil actions brought against the state, its agencies or subdivisions, venue properly lies in Tallahassee. A waiver of the state's general venue privilege occurs where a real and imminent deprivation of the claimant's constitutional rights can be shown. The procedure set forth in Chapter 440 for the levying of penalties did not deprive the appellee of its constitutional rights since the procedure for the assessment of penalties provides notice and opportunity to contest the assessment.
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Case remanded to judge on the issue of attorney's fees.
In denying attorney's fees based on bad faith, the
judge was directed to explain why the fee claimed was
denied. A bad faith claim may be predicated upon a
delay in payment which is occasioned by a reckless
failure to ascertain the claimant's rights. In
recouping overpayments of compensation, the
employer/carrier took credit for an amount in excess of
the amount of the overpayment. Under these
circumstances, the court determined that penalties and
interest should have been awarded for the excess
recoupment. Penalties and interest should be awarded
upon the payment of wage loss payments which the judge
had ordered and which the employer/carrier had failed
to provide. The employer/carrier may not avoid the
assessment of penalties and interest by awaiting the
submission of wage loss forms after they have failed to
furnish the claimant with necessary forms and
information.
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JCC's award of the statutory 20% penalty on all accrued
interest was affirmed on appeal.
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As required by Section 440.19(1)(e)(7), a Notice to
Controvert must be filed within 21 days of the receipt
of the acknowledged claim from the Division. The
Notice toControvert in this instance was filed
prematurely, i.e., before the filing of the claim.
Court determined in this instance that penalties were
not due.
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An attorney's fee is not compensation within the meaning of Section 440.20(8), Florida Statutes.~END~Interest payments provided for in Section 440.20(9), Florida Statutes, began to accrue at the time the adjusted benefits became due and continued to accrue through the dateof the satisfaction of amounts payable by the employer/carrier. In this case, there was adjustment made in the claimant's average weekly wage calculation. The JCC's denial of penalties and interest in "boiler plate" language is an insufficient denial of such benefits.
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An attorney's fee is not compensation within the meaning of Section 440.20(8), Florida Statutes.~END~Interest payments provided for in Section 440.20(9), Florida Statutes, began to accrue at the time the adjusted benefits became due and continued to accrue through the dateof the satisfaction of amounts payable by the employer/carrier. In this case, there was adjustment made in the claimant's average weekly wage calculation. The JCC's denial of penalties and interest in "boiler plate" language is an insufficient denial of such benefits.
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The employer/carrier's Notice to Controvert the
compensability of the injury was filed before the claim
itself was filed. Award of penalties predicated on the
untimelinessof filing of the Notice to Controvert
reversed.
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Payments for medical services are not compensation and therefore are not subject topenalties for late payments under Section 440.20(8), Florida Statutes.
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As expressly acknowledged by Section 440.20(7), Florida
Statutes, a claimant can waive the right to a penalty
by not specifically and timely claiming that
right following the untimely payment of compensation.
There is no such waiver provision in Section 440.20(8)
relating to the untimely payment of benefits pursuant
to an award. Benefits become due following an award
that is appealed after the issuance of the appellate
mandate. In this case, the employer/carrier timely
paid the amount of penalties for the order that was
appealed. Order of penalties for alleged untimely
payments reversed since no claim had been filed for
such penalties as required by Section 440.20(7),
Florida Statutes. Where order not paid following
issuance of mandate, claimant is not only entitled to a
20% penalty but also to statutory interest on the
unpaid penalty from 30 days after compensation was due.
An award of interest on the amount of benefits which
should be paid is automatic where the employer/carrier
unsuccessfully controverts a claim.
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