POOLE & KENT COMPANY AND RELIANCE INSURANCE COMPANY, APPELLANTS,
v.
NORMAN ASBELL, APPELLEE

Fla. 1st DCA | 1981-03-11
No. VV-485
SHIVERS and SHAW, JJ., concur.
394 So. 2d 1112 Florida District Court of Appeal, First District (1981) Positive Treatment
Cited by 10 cases

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Synopsis

In this workers' compensation appeal, the court affirmed the Deputy Commissioner's finding that the claimant suffered a compensable aggravation of a pre-existing coronary condition, but reversed the Deputy's decision to reserve jurisdiction on the wage-earning capacity issue. The court also reversed on the cross-appeal regarding interest payments while affirming the non-assessment of penalties.


Holding

The court affirmed the finding of compensable aggravation and affirmed the non-assessment of penalties. However, the court reversed the reservation of jurisdiction on wage-earning capacity (which must be denied since the claimant failed to demonstrate loss exceeding anatomical impairment), reversed the non-assessment of interest (which is automatic when an employer/carrier unsuccessfully controverts a claim), and modified the order to correct a scrivener's error awarding additional TTD benefits.


Headnotes

[1] A Deputy Commissioner in a workers' compensation case has no authority to reserve jurisdiction to rule on an issue that was properly noticed and ready for adjudication.

[2] A claimant's claim for disability compensation based on loss of wage-earning capacity must be denied if the claimant fails to demonstrate that the loss of wage-earning ca…

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Key Quotes

“The Deputy had no authority to reserve jurisdiction to rule on this issue, which was properly noticed and ready for adjudication.”

Establishes the core holding that the Deputy Commissioner lacked authority to defer ruling on the wage-earning capacity issue.

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Facts & Procedural History

The claimant suffered a compensable injury in a 1978 accident that resulted in a 5% anatomical permanent partial disability (PPD). The claimant had a …

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

This is an appeal and cross-appeal from a workers’ compensation Order. We affirm in part and reverse in part.

On appeal, the appellants argue that the Deputy Commissioner (“the Deputy”) erred in finding that the claimant suffered a compensable aggravation of a pre-exist-ing coronary condition. After carefully reviewing the record herein, we have determined that there is competent substantial evidence to support the Deputy’s finding, and therefore, that finding is affirmed.

The appellants also argue that the Deputy erred in reserving jurisdiction to rule on the issue of the claimant’s loss of wage earning capacity. We agree and reverse.

The Deputy determined that the claimant suffered a 5% anatomical permanent partial disability (“PPD”) attributable to his 1978 accident. However, the Deputy failed to rule on the issue of whether, under § 440.15(3)(c), Fla.Stat. (Supp.1978), the claimant’s loss of wage-earning capacity exceeded his 5% anatomical PPD. The Deputy reserved jurisdiction to rule on this issue, explaining that the claimant had not conducted a meaningful job search. The Deputy had no authority to reserve jurisdiction to rule on this issue, which was properly noticed and ready for adjudication. See Coe v. Kentucky Fried Chicken, 393 So. 2d 1156 (Fla. 1st DCA 1981); see also Garitson v. Rifenburg, 380 So. 2d 1311 (Fla. 1st DCA 1980). The claimant failed to demonstrate that his loss of wage-earning capacity exceeded his anatomical impairment, and therefore, his claim for disability compensation based on loss of wage-earning capacity must be denied nunc pro tunc as of the date of the Deputy’s Order. See Coe, 393 So. 2d 1156.

On cross-appeal, the claimant contends that the Deputy erred in not assessing penalties and/or interest payments against the appellants. As for the Deputy’s non-assessment of interest, we reverse. If an employer/carrier unsuccessfully contro verts a claim, an award of interest on the amount of benefits that should have been paid is automatic. See Top of the Home Restaurant v. Mourino, IRC Order 2-3490 (July 26, 1978); Parker v. Brinson Constr. Co., 78 So. 2d 873, 875-76 (Fla.1955).

As for the Deputy’s non-assessment of penalties, we affirm. Sections 440.20(5) and (6) (Supp.1978) clearly provide that penalties are not appropriate where an employer/carrier files a notice to controvert or a notice of appeal. Such notices were filed herein.

The claimant also contends that there was a scrivener’s error in the Deputy’s Order which deprived the claimant of two (2) months of temporary total disability (“TTD”) benefits. The appellants have conceded that if the claimant has suffered a compensable injury (which he has), a scrivener’s error was made. Moreover, the nature of this error is obvious. Accordingly, we modify the Deputy’s Order so that the claimant will receive TTD benefits for the period of time from October 26, 1978 to December 12, 1979.

Finally, we note that the claimant has raised one other issue regarding a medical bill that was received by the claimant subsequent to the date that the Deputy entered his Order. However, since the Deputy has not ruled on whether this bill should be paid by the appellants, this court cannot consider the claimant’s last issue.

The Deputy’s Order is affirmed in part and reversed in part, and this cause is remanded for proceedings consistent with this opinion.

SHIVERS and SHAW, JJ., concur.


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Citator

Cited By

  • Winn-Dixie Stores & Crawford & Co. v. Morgan, 533 So. 2d 783 (Fla. 1st DCA 1988)
    …e reverse the deputy’s failure to award interest on claimant’s compensation benefits. An award of interest on the amount of benefits which should be paid is automatic where the E/C unsuccessfully controvert the claim. Poole & Kent Company v. Asbell, 394 So. 2d 1112 (Fla. 1st DCA 1981). MILLS and WIGGINTON, JJ., concur.…
  • Spenco Indus. & Fla. Ins. Guar. Ass'n v. Ines Molano, 537 So. 2d 1016 (Fla. 1st DCA 1988)
    …to interest and penalties pursuant to Sections 440.20(7) and 440.20(9). An award of interest on the amount of benefits that should have been paid is automatic if the employer/carrier unsuccessfully controvert a claim. Poole & Kent Company v. Asbell, 394 So. 2d 1112 (Fla. 1st DCA 1981); see also King v. Lord Colony Enterprises, 400 So. 2d 856 (Fla. 1st DCA 1981). Although the Florida Insurance Guaranty Association (FIGA) is ex [*1018] empt from payment of prejudgment interest and penalties, the employer may not…
  • S. Miami Hosp. & Travelers Ins. Co. v. FAZ, 406 So. 2d 83 (Fla. 1st DCA 1981)
    …ication. He therefore, should have ruled on the issue based on the evidence before him. “The deputy had no authority to reserve jurisdiction to rule on this issue, which was properly noticed and ready for adjudication.” Poole and Kent Co. v. Asbell, 394 So. 2d 1112 (Fla. 1st DCA 1981); Coe v. Kentucky Fried Chicken, 393 So. 2d 1156 (Fla. 1st DCA 1981). Although claimant failed to conduct a work search, there is medical evidence indicating she is unable to work. “As a matter of law, a claimant’s recovery canno…

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