HOWARD JOHNSON'S AND AETNA LIFE & CASUALTY COMPANY, APPELLANT,
v.
HELEN PITCHFORD, APPELLEE

Fla. 1st DCA | 1986-10-29
No. BL-98
BOOTH, C.J., and WENTWORTH, J., concur.
496 So. 2d 951 Florida District Court of Appeal, First District (1986) Positive Treatment
Cited by 2 cases

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Synopsis

Howard Johnson's and Aetna Life & Casualty appealed a workers' compensation order granting temporary total disability and medical benefits to an employee who suffered a heart attack at work, arguing the carrier should be excused from the default judgment due to failure to receive notice of the hearing. The court affirmed, finding no excusable neglect.


Holding

The court affirmed the deputy commissioner's denial of the motion to vacate, finding the carrier failed to establish excusable neglect. The carrier's explanation that the notice was sent to the wrong office was insufficient because the carrier had previously received other claim documents at the Tampa office which were properly transferred to Jacksonville, and the carrier failed to notify the deputy commissioner of the address discrepancy.


Headnotes

[1] A deputy commissioner has discretion to determine whether facts constitute inadvertence, mistake, or excusable neglect for vacating an order.

[2] An appellate court will affirm a deputy commissioner's decision regarding excusable neglect absent an abuse of discretion.

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Key Quotes

“the carrier's statement that 'for some unknown reason' neither their Tampa office nor the employer notified the Jacksonville office of the hearing date is not sufficient evidence to establish excusable neglect”

Establishes that the carrier's vague explanation of office miscommunication does not meet the standard for excusable neglect

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Facts & Procedural History

Helen Pitchford, age 57, suffered a heart attack on March 11, 1985, while working as a manager at a Howard Johnson's restaurant. A hearing was held on…

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

This is a workers’ compensation appeal from an order granting, inter alia, temporary total disability and medical benefits. Howard Johnson’s and Aetna Life & Casualty Company (E/C) contend the order should be reversed and vacated on the grounds that the carrier was not represented at the hearing because of alleged excusable neglect. We find no error and affirm.

Pitchford, 57 years old, suffered a heart attack while working as a manager for a Howard Johnson’s restaurant on 11 March 1985. A hearing was held on her claim for compensation on 6 December 1985. The claimant and her employer were present at the hearing; however, the carrier failed to attend.

Thereafter, on 30 December 1985, an order was entered which found Pitchford’s heart attach was a compensable injury arising out of and in the course and scope of her employment, due to unusual stress and strain she was required to undergo. As a result of this finding, the deputy commissioner ordered the E/C to pay to Pitchford all of her incurred medical expenses related to the industrial injury, authorized Dr. Po-coski to continue to treat Pitchford as he deems necessary, required the E/C to pay temporary total disability benefits from the date of the accident and continuing until Pitchford has reached maximum medical improvement, and ordered the E/C to pay costs.

Following this, on 22 January 1986, the E/C filed a motion for rehearing and a motion to vacate the order, raising the ground of excusable neglect. The deputy denied the motion and this timely appeal then ensued.

The carrier’s chief complaint herein is that the notice of hearing was erroneous ly sent to a Tampa office when their Jacksonville office was handling the claim, and thus they were deprived of proper notice. This argument ignores the fact that Pitch-ford’s initial claim was sent to the Tampa office and was subsequently received in Jacksonville, as evidenced by the timely claim acknowledgment and notice to controvert sent to the claimant.

The carrier’s statement that “for some unknown reason” neither their Tampa.office nor the employer notified the Jacksonville office of the hearing date is not sufficient evidence to establish excusable neglect. Pitchford’s initial claim, as well as the December order, were sent to Tampa and obviously were transferred in due course to Jacksonville. Some explanation should have been offered as to why the notice of hearing was not also sent to Jacksonville.

Additionally, the notice of injury form provided by the carrier in the instant case contained a printed address locating the carrier in Tampa, Florida. If this was incorrect, the carrier should have informed the deputy commissioner after receiving and processing the initial claim via their Tampa location. Instead, nothing was done to put the deputy commissioner on notice that the carrier’s Jacksonville office was in fact handling Pitchford’s claim.

Rule 4.141(b) of Florida’s Workers’ Compensation Rules of Procedure allows a deputy commissioner to vacate an order which has not yet become final on the grounds of inadvertence, mistake or excusable neglect. Threat v. Rogers, 443 So. 2d 149 (Fla. 1st DCApp 1983). However, it is within the deputy commissioner’s discretion to determine whether the facts of a particular case constitute one of these grounds, and unless an abuse of discretion can be demonstrated, the deputy commissioner’s decision must be affirmed on appeal. Id. Under the circumstances of this case, as outlined above, we find no abuse of discretion has been demonstrated and affirm the deputy commissioner’s order. Affirmed.

BOOTH, C.J., and WENTWORTH, J., concur.


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Citator

Cited By

  • BEE GEE Shrimp, Inc. v. Petra Carreras, 516 So. 2d 1121 (Fla. 1st DCA 1987)
    …n to vacate the order of March 10, 1987, and remand the cause for further proceedings. BOOTH and BARFIELD, JJ., concur. . See FIa.W.C.R.P. 4.100(b). . Threat v. Rogers, 443 So. 2d 149 (Fla. 1st DCA 1983). . Compare Howard Johnson’s v. Pitchford, 496 So. 2d 951 (Fla. 1st DCA 1986), wherein it was held that the deputy commissioner did not abuse his discretion in denying a motion to vacate on grounds of excusable neglect, since the carrier failed to explain why the notice of hearing, sent to the carrier’s Ta…

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