ED BARBOUR, JR., AND/OR PROSPECTUS CONSTRUCTION CO., AND/OR S & R TRANSPORTATION CO., APPELLANTS,
v.
GEORGE WATERMAN, APPELLEE
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The First District Court of Appeal reversed a workers' compensation order against Ed Barbour, Jr. and Prospectus Construction Co., finding that the deputy commissioner's determination of proper notice was unsupported by competent, substantial evidence. The court held that due process and Chapter 440, Florida Statutes require affirmative demonstration of notice to employers in the record.
The court held that the record contains no competent, substantial evidence to support the deputy commissioner's finding that Ed Barbour, Jr. and Prospectus Construction Co. had proper notice of the hearing. To satisfy statutory and due process requirements, the record must affirmatively demonstrate that notice of hearing was given to the employer.
[1] A record must affirmatively demonstrate that notice of a hearing was given to the employer to satisfy statutory and due process requirements.
[2] A compensation order will be reversed and remanded for a hearing de novo when the record lacks competent, substantial evidence to sustain a finding of proper notice to th…
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Join FLexlaw to unlock all legal intelligence“Our review of the record satisfies us that there is no competent, substantial evidence to sustain the deputy commissioner's finding that Ed Barbour, Jr., and/or Prospectus Construction Co. had proper notice of the hearing on Waterman's claim.”
Establishes the core holding that the record lacks sufficient evidence of proper notice to the employers
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Join FLexlaw to unlock all legal intelligenceGeorge Waterman filed a workers' compensation claim naming Ed Barbour, Jr., Prospectus Construction Co., and S & R Transportation Co. as employers, us…
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OWEN, WILLIAM C., Jr. (Retired), Associate Judge.
Appellee, George Waterman, through his attorneys, filed a claim for compensation naming as employer (1) Ed Barber, Jr., and/or (2) Prospectus Construction Co., and/or (3) S & R Transportation Co., giving an address of Post Office Box 926, Apopka, Florida, 32703. In due course, the judge of industrial claims mailed to the named employers at the above post office address a notice of hearing for October 15, 1979, at which time a hearing was held with only claimant and his attorney present. Subsequently, each of the named employers received a copy of a proposed compensation order together with notice of hearing on claimant’s request for attorney fees and costs, prompting each of the employers to file a motion to abate entry of the proposed order on the grounds of lack of notice of the hearing of October 15, 1979. Thereafter the deputy commissioner held a hearing on the motions to abate, took testimony on the issue of notice, and in due course entered the order which is now appealed, finding that all parties had specific notice of the hearing on October 15, 1979, and that Ed Barbour, Jr., and S & R Transportation Co. were joint employers and were jointly and severally responsible for benefits due, which benefits were set forth in the order. Ed Barbour, Jr.,1 and Prospectus Construction Co. filed notice of appeal and S & R Transportation Co. filed a separate notice of appeal, the latter appeal not being involved here. Our review of the record satisfies us that there is no competent, substantial evidence to sustain the deputy commissioner’s finding that Ed Barbour, Jr., and/or Prospectus Construction Co. had proper notice of the hearing on Waterman’s claim. To satisfy the requirements of Chapter 440, Florida Statutes, and of basic due process, the record must affirmatively demonstrate that notice of hearing was given to the employer. Reyes v. Johnstone, 388 So. 2d 344 (Fla. 1st DCA 1980).
The compensation order dated March 19, 1980, is reversed as to Ed Barbour, Jr., and Prospectus Construction Co., and remanded for a hearing de novo after due notice to all parties.
REVERSED AND REMANDED.
MILLS, C. J., and WENTWORTH, J., concur. . Although the claim and subsequent notices spelled the name Barber, at hearing on the motion to abate the record was corrected to reflect the correct spelling of Barbour. The misspelling of the name is not the basis of our determination that Barbour did not receive notice of the hearing.
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City OF Hollywood v. Pisseri, 504 So. 2d 1262 (Fla. 1st DCA 1986)…proper notice. First, the general rule is that in order to satisfy the requirements of Chapter 440, Florida Statutes, and due process, the record must affirmatively demonstrate that notice of a hearing was given to the employer. Barbour v. Waterman, 394 So. 2d 517 (Fla. 1st DCA 1981). Here, it is undisputed that the City of Hollywood received notice. Second, Continental presented no evidence to contradict the presumption that the properly mailed notice was received by them. Brown v. Griffen Industries, Inc.,…
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Batista v. Publix Supermarkets, Inc., 993 So. 2d 570 (Fla. 1st DCA 2008)…ence. Moreover, if JCC’s Johnson’s order was the product of an inadequately noticed hearing, the E/C’s remedy was to move to abate the order, not to wait 10 years and argue before a different JCC that notice was inadequate. Cf. Barbour v. Waterman, 394 So. 2d 517, 518 (Fla. 1st DCA 1981) (holding a JCC should have abated his order where the E/C moved to abate based on inadequate notice of hearing). [*573] Jurisdiction The second issue raised is whether JCC Harnage was correct in determining he had jurisdict…
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Area Refrigeration & AIR Conditioning & Invs. Ins. Holding Corp. v. Abe Glazer, 575 So. 2d 332 (Fla. 1st DCA 1991)…the hearing officer could have determined that notice was given to the carrier in accordance with the requirements of section 440.25(3)(a), Florida Statutes, and rule 4.080, Florida Workers’ Compensation Rules of Procedure. See Barbour v. Waterman, 394 So. 2d 517 (Fla. 1st DCA 1981). We, therefore, determine that the JCC did not err in conducting the hearing in the absence of the servicing agent or its representative. The E/C also raises several issues concerning attorney’s fees. We find that as to these i…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Oheneyo Reyes v. Johnstone, 388 So. 2d 344 (Fla. 1st DCA 1980)