CORNELIA RAPPOPORT, APPELLANT,
v.
AMERICAN HOSPITAL AND RISK CORPORATION OF FLORIDA, APPELLEES
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The court held that an excessive delay between a hearing and the entry of an order, particularly when credibility is a key issue, warrants reversal and remand for a de novo hearing.
An LPN claimant attributed pain to lifting heavy patients, but the Deputy Commissioner found no compensable accident. There was a 284-day interval bet…
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PER CURIAM.
The appellant (claimant) was an LPN at the employer hospital. The claimant experienced some pain which she attributes to her lifting heavy patients. After hearing the claimant’s testimony and considering somewhat contradictory histories given by the claimant to her physicians the Deputy Commissioner found no compensable accident.
Ordinarily such a finding, if supported by the record evidence, will not be upset on appeal. However in this case there was a 284 day interval between hearing and entry of an order. In a case like this, where the chief issue is the credibility of the claimant, we feel that the delay was excessive. We therefore reverse the order below and remand for a de novo hearing.
In doing so we are aware of the cases in which our Supreme Court has held the 30 day period of Florida Statutes § 440.25(3)(b) to be directory only. In Scottie-Craft Boat Corp. v. Smith, 336 So. 2d 1150 (Fla.1976), and in Miller v. Oolite Industries, Inc., 336 So. 2d 1152 (Fla.1976), the Supreme Court held that delays of 250 days and 18 months respectively did not require reversal. As noted in a special concurrence by Justice England to Scottie-Craft, joined by two of the four majority votes, those decisions left the IRC discretion to find some orders “stale.” If the Commission found that the fact findings were dependent upon hearing-level advantages, then it could remand for a new hearing in the interests of justice.
Here we have the same situation. The credibility of a witness is largely dependent upon her demeanor. It would be difficult for anyone to recall live testimony after seven months and in all probability the decision below was based upon the transcript. In our opinion the interests of justice require a new hearing. Accordingly, the order is vacated and the cause is remanded.
BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.
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Maddox v. Rinaldi's Expressway Lanes & Cas. Reciprocal Exch., 459 So. 2d 421 (Fla. 1st DCA 1984)…PER CURIAM. The order in this workers’ compensation case is reversed, and the cause is remanded for a de novo hearing under the authority of Rappoport v. American Hospital, 406 So. 2d 1244 (Fla. 1st DCA 1981). The claimant testified at a hearing on May 12,1983; another hearing was held on September 26, 1983. The deputy commis [*422] sioner’s order was entered on February 20, 1984, five months after the final hearing and almost nine m…1 / 2
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Liberty Mut. Ins. Co. v. Fuchs Baking Co. & John Gandy, 577 So. 2d 603 (Fla. 1st DCA 1991)…ted by the appellant. In addition, the hearings on this claim extended over a period of some ten months, and these proceedings generated a record which required considerable time for the JCC to review. In the case of Rappaport v. American Hospital, 406 So. 2d 1244 (Fla. 1st DCA 1981), this court held that a 284 day interval between the hearing and the entry of [*606] the order was excessive, and required a de novo hearing. In that case, we emphasized that where the chief issue is the credibility of the claima…
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Palmieri v. Naaco & Am. Policyholders Ins. Co., 677 So. 2d 1310 (Fla. 1st DCA 1996)…eanor. It would be difficult for anyone to recall five testimony after seven months and in all probability the decision below was based upon the transcript. In our opinion the interests of justice require a new hearing. Rappoport v. American Hosp., 406 So. 2d 1244, 1244-45 (Fla. 1st DCA 1981), review denied, 413 So. 2d 875 (Fla.1982); see also Harrington v. Vida Appliance Corp., 542 So. 2d 1006, 1007 (Fla. 1st DCA 1988) (order reversed and remanded for de novo hearing where JCC entered order 245 days after he…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scottie-Craft Boat Corp. & Fed. Ins. Co. v. Thomas Smith & the Indus. Relations Comm'n, 336 So. 2d 1150 (Fla. 1976)
- Oswald Miller v. Oolite Indus., Inc., 336 So. 2d 1152 (Fla. 1976)