CLAY HYDER TRUCK LINES (SELF-INSURED), APPELLANT,
v.
DOROTHY A. ATHERTON, APPELLEE
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In this workers' compensation case, the Florida District Court of Appeal reversed the deputy commissioner's award of attorney's fees and remanded for clarification regarding an alleged overpayment of temporary disability benefits. The court held that the employer timely accepted the claim within the statutory 21-day period, limiting the attorney's fee entitlement, and that the deputy must determine whether an overpayment existed and provide appropriate credit to the employer.
The employer timely accepted the claim because the checks were mailed before November 4, 1976 (the 21st day), making the claimant's attorney entitled to a fee only for obtaining resisted medical reimbursement rather than all benefits. The case is remanded for the deputy to determine whether an overpayment existed on a reasonable basis and, if so, to award appropriate credit to the employer.
[1] A workers' compensation claim is timely accepted if payment of benefits is made within 21 days of the employer's receipt of notice of the claim.
[2] In workers' compensation cases, the date of mailing is legally considered the date of payment for determining timeliness.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The date of mailing, considered in law to be the payment date, obviously occurred before this time.”
Establishes that payment by check is deemed made on the mailing date, not receipt date, supporting timely acceptance of the claim.
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Join FLexlaw to unlock all legal intelligenceThe employer received notice of the claimant's workers' compensation claim on October 14, 1976. The employer sent temporary disability benefit checks …
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PER CURIAM.
The employer in this workers’ compensation case asserts that the deputy commissioner erred in finding that the claimant’s attorney was entitled to a fee based upon “all benefits to which the claimant has or may become entitled” because the claim was not timely accepted within 21 days pursuant to § 440.34, Florida Statutes (1975). Appellant also contends that the deputy erred in failing to credit it with the overpayment of temporary disability benefits. We reverse.
The deputy calculated that the claimant received her temporary disability benefit checks, including penalties and interest, 22 days after the employer received notice of the claim. Accepting the deputy’s finding that notification of the claim occurred October 14, 1976, appellants had 21 days from this date within which to accept the claim. The evidence shows that checks were received by claimant’s attorney on November 4, 1976, the 21st day. The date of mailing, considered in law to be the payment date, obviously occurred before this time. Commercial Carrier Corp. v. Gillum, IRC Order 2-3534 (Sept. 12, 1978). In short, payment was properly made within the statutory 21-day period. This being the case, claimant’s counsel would be entitled to a fee based only upon the obtaining of the resisted medical reimbursement.
The argument proposed in Point 2 is somewhat unclear. In the original order, the deputy found that the claimant received $7,531.38 in temporary or total disability benefits, while she was owed only $7,056.85, but the deputy did not say whether credit was due to the employer. When the IRC remanded for clarification of the status of temporary disability payments and allowance of appropriate credit, the deputy noted that “the finding of underpayment is erroneous.” This statement did not clarify the credit issue, and appellant requests this court to remand the cause again.
The original order indicated an overpayment rather than an underpayment. We remand for the deputy to answer whether there was an overpayment as indicated in his original order, and to indicate the exact amount of overpayment. Since this court recently explained that an overpayment is not a gratuity if the deputy finds a reasonable basis for such overpayment, Belam Florida Corp. v. Dardy, 397 So. 2d 756 (Fla.App. 1st DCA 1981), the deputy is directed to find .whether there was a reasonable basis in this case. Finally, if an overpayment was reasonably made, we direct the deputy to award credit to the employer in that amount.
The cause is reversed and remanded to the deputy with directions that he enter an order consistent with this opinion.
SHIVERS, SHAW and THOMPSON, JJ., concur.
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Paver Dev. Corp. & Aetna Ins. Co. v. McDEVITT, 419 So. 2d 1156 (Fla. 1st DCA 1982)…torney. 29 July 1981 — Lancaster received the check in the mail. The E/C first contend that payment was timely made on 15 July 1981 since that was the date the check was mailed. This contention is without merit. Clay Hyder Truck Lines v. Atherton, 400 So. 2d 1295 (Fla. 1st DCA 1981), is inapplicable. The “date of mailing” in that case refers to the date of mailing to claimant or his attorney, not the date of mailing to the E/C’s attorney. The E/C next contend that the deputy commissioner’s order is insuffic…
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Special Disability Tr. Fund v. Robbins Mfg. Co. & Wausau Ins. Cos., 484 So. 2d 54 (Fla. 1st DCA 1986)…ayment within the context of Section 440.49(2)(g), several cases have addressed the question of what constitutes payment in other contexts of workers’ compensation law and are consistent with our holding. [*56] In Clay Hyder Truck Lines v. Atherton, 400 So. 2d 1295 (Fla. 1st DCA 1981), this Court was presented with an issue involving the date of payment in a claim for attorney’s fees under Section 440.34, Florida Statutes (1975). In deciding that payment was properly made within the statutory 21-day period, th…
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City OF Crestview & Ins. Servicing Adjusting Co. v. Howard, 657 So. 2d 73 (Fla. 1st DCA 1995)…t finding. E/C’s administrative acceptance of claimant as permanently and totally disabled on July 20, 1994, and its subsequent mailing of benefits checks on July 21,1994, fell within the 21-day statutory period. Clay Hyder Truck Lines v. Ather-ton, 400 So. 2d 1295 (Fla. 1st DCA 1981). Because the 1989 statute is substantive and was not violated by the E/C, no attorney’s fees are due. The JCC erred by finding section 440.192(8), Florida Statutes (Supp.1994), controlling as to attorney’s fees on the theory tha…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Belam v. Dardy, 397 So. 2d 756 (Fla. 1st DCA 1981)