PANTRY PRIDE AND ALEXSIS, INC., APPELLANTS,
v.
VIRGINIA CARTER, APPELLEE
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Florida appellate court reversed workers' compensation order, holding that contesting psychiatric care benefits does not trigger attorney's fees and that imposing a penalty without affording the employer due process violates statutory requirements.
An employer/carrier's contestation of psychiatric care benefits does not subject it to attorney's fees, and a penalty cannot be imposed without the deputy raising the question at hearing and affording the employer opportunity to be heard.
[1] Contestation of incidental benefits such as psychiatric care does not subject an employer/carrier to attorney's fees in workers' compensation proceedings.
[2] A deputy commissioner may not impose a penalty without raising the question at the hearing and affording the employer/carrier an opportunity to be heard, as denial of suc…
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Join FLexlaw to unlock all legal intelligence“This claim for psychiatric care was merely a claim for a benefit incidental to the injury.”
Explaining why contesting psychiatric care does not subject employer to attorney's fees
The employer/carrier admitted compensability of the claimant's injury and paid disability benefits, but later contested the claimant's entitlement to …
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MILLS, Judge.
The employer/earrier appeal a workers’ compensation order contending the deputy commissioner erred in awarding an attorney’s fee and a penalty to claimant. We reverse
The employer/earrier admitted the compensability of claimant’s injury and began paying disability benefits. They later contested claimant’s entitlement to psychiatric care. This action does not subject the employer/earrier to payment of an attorney’s fee. Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981). This claim for psychiatric care was merely a claim for a benefit incidental to the injury.
The deputy erroneously assessed a penalty against the employer/earrier. Section 440.20(7), Florida Statutes (1980 Supp.), states that the claimant will be deemed to have waived his claim for penalties if not made prior to the conclusion of the prosecution of his claim before the deputy. No claim for penalties was made by claimant. The statute also states that the deputy may raise on his own motion the question of whether a penalty should be awarded or excused. In this case, the deputy did not raise the question at the hearing. He assessed the penalty in his order but without affording the employer/earrier an opportunity to be heard. The imposition of the penalty was erroneous because the employer/carrier were denied due process.
The order is reversed for proceedings consistent with this opinion.
LARRY G. SMITH and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Teitelbaum Concrete v. Sandelier, 506 So. 2d 1122 (Fla. 1st DCA 1987)…arvey, 474 So. 2d 4 (Fla. 1st DCA 1985) (fee approved where etc, although accepting claimant’s orthopedic injury as compensable, denied compensability of psychiatric condition as not causally related to the accident) (compare Pantry Pride v. Carter, 413 So. 2d 865 (Fla. 1st DCA 1982). The instant case is closer to Wackenhut Corp. v. Freilich, 464 So. 2d 217 (Fla. 1st DCA 1985), in which the e/c contested the extent of the injury. There, the e/c denied that claimant suffered brain damage or [*1125] that claim…
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Farm Stores, Inc. v. Harvey, 474 So. 2d 4 (Fla. 1st DCA 1985)…ertain injuries from an accident but denies the causal relation of another injury, i.e., a heart attack occurring months after a back injury in that case. That decision requires that we narrowly construe the earlier ruling in Pantry Pride v. Carter, 413 So. 2d 865 (Fla. 1st DCA 1982), denying a fee for contesting “entitlement to psychiatric care.” That claim was characterized as one “for a benefit incidental to the injury,” 413 So. 2d 658. The denial of the claim was therefore merely a denial of the need for…
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Perkins Rest. & Wausau Ins. Co. v. Cruz, 541 So. 2d 1279 (Fla. 1st DCA 1989)…s specifically claimed prior to the conclusion of the prosecution of the claim before the deputy. The statute also provides that the deputy may, on his own motion, raise the question of the propriety of an award of penalties. Pantry Pride v. Carter, 413 So. 2d 865 (Fla. 1st DCA 1982). See also La Croix Construction Company v. Bush, 471 So. 2d 134 (Fla. 1st DCA 1985), holding that penalties may not be awarded unless claimed. The facts in this case establish that the unrepresented claimant did not learn of her…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981)