ALL AMERICAN VENDING AND CLAIMS CENTER, APPELLANTS/CROSS-APPELLEES,
v.
JERRY KUNZELMAN, DECEASED, APPELLEE/CROSS-APPELLANT
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The court held that the employer/carrier failed to meet their burden to prove why penalties were not due for failure to pay death benefits.
An employer/carrier appealed a workers' compensation order finding the deceased to be an employee, not an independent contractor. The appellee cross-a…
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THOMPSON, Judge.
Employer/carrier. (E/C) appeal a workers’ compensation order finding appellee to have been an employee rather than an independent contractor at the time of his death and awarding compensation, funeral expenses and interest. Because the finding is supported by competent substantial evidence, we affirm.
On cross-appeal, appellee urges that the deputy commissioner (deputy) erred in failing to award penalties as the (E/C) failed to controvert the claim for benefits and did not demonstrate that their nonpayment was the result of conditions beyond their control. The final order found that the E/C was given proper notice of Kunzel-man’s death but specifically did not award penalties.
The E/C bear the burden of proving that penalties are not due. Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981). Here the E/C did not show why a notice to controvert was not filed and presented no evidence concerning their failure to pay death benefits. Therefore the deputy erred in failing to award penalties. Sears, Roebuck and Co. v. Viera, 440 So. 2d 49 (Fla. 1st DCA 1983).
The portion of the order declining to award penalties is reversed. Upon remand the deputy shall impose penalties as provided by statute. 440.20(7), Fla.Stat. (1983).
In all other respects, the order is affirmed.
ZEHMER and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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City OF Miami v. Bell, 606 So. 2d 1183 (Fla. 1st DCA 1992)…s is immaterial unless compliance with the requirements of the statutory exception is shown. The burden of proving that penalties are not due based on the exceptions in subsection (7) is on the employer or carrier. All American Vending v. Kunzelman, 482 So. 2d 609 (Fla. 1st DCA 1986). The City failed to carry that burden in this case. The City accepted and had been paying Bell’s claim for PTD compensation benefits. It impermissibly withheld payments under the pension offset provision subsequently held illega…
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Spenco Indus. & Fla. Ins. Guar. Ass'n v. Ines Molano, 537 So. 2d 1016 (Fla. 1st DCA 1988)…ination of compensation payments nor instructed FIGA to continue payments or to settle amicably after the court so instructed the parties. The employer/carrier bear the burden of proving that penalties are not due. All American Vending v. Kunzelman, 482 So. 2d 609 (Fla. 1st DCA 1986). The employer failed to meet this burden and is liable for penalties in which it is at fault and for prejudgment interest which FIGA is not required to pay. Id. Accordingly, we reverse and remand for proceedings consistent herew…
Authorities Cited
- Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981)
- Kronz v. State, 440 So. 2d 49 (Fla. 1st DCA 1983)
- Sears v. Viera, 440 So. 2d 49 (Fla. 1st DCA 1983)