GEIGER-RICKETTS DEV. CO. AND AETNA CASUALTY & SURETY CO., APPELLANTS,
v.
LARRY ALSMAN, APPELLEE
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The Florida First District Court of Appeal reversed a workers' compensation deputy commissioner's order awarding benefits to an injured claimant based solely on the employer/carrier's failure to appear at the hearing, holding that even when a defendant fails to appear, the claimant must still present competent substantial evidence to support an award of benefits.
No. Even though the employer/carrier failed to appear, the claimant retains the burden of presenting competent substantial evidence to support an award of benefits. A deputy commissioner cannot award benefits based solely on the non-appearance of the employer/carrier without evidence in the record.
[1] A deputy commissioner cannot enter a default order awarding benefits in a workers' compensation case without evidence supporting the award, even if the employer/carrier f…
[2] A claimant in a workers' compensation case bears the burden of presenting competent substantial evidence to establish entitlement to benefits, even when the claim has bee…
Previewing 2 of 4 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“there is no presumption that a claimant whose claim has been controverted is entitled to the benefits requested in the absence of any evidence. The claimant still has the burden of presenting competent substantial evidence from which the deputy can determine such entitlement.”
Establishes that even with non-appearance by the opposing party, the claimant must present evidence to support benefit awards.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceClaimant was allegedly injured in a compensable accident and received outpatient treatment, causing him to miss one day of work. Claimant filed a clai…
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NIMMONS, Judge.
The employer and carrier appeal an order of the deputy commissioner awarding claimant remedial and palliative care on the stated grounds that “[n]either the Employer or (sic) the Carrier nor their representative appeared for the hearing ...” We reverse.
This case presents the issue of whether a deputy commissioner is empowered, because of the employer/carrier’s failure to appear at a compensation hearing, to enter a “default judgment” awarding benefits to claimant where no evidence is presented. Claimant was allegedly injured in a compensable accident and was treated in an outpatient clinic, causing him to miss a day of work. Claimant, initially without benefit of counsel, filed a claim for additional care, which was controverted. Claimant then retained an attorney who filed the claim again and properly noticed a hearing. At the appointed time for the hearing, only the claimant, his counsel and the deputy commissioner were present. The employer/carrier failed to appear. Without taking any evidence, the deputy entered an order in favor of claimant granting all benefits requested along with an attorney’s fee.
In this appeal, the E/C do not argue that they failed to appear because of excusable neglect. Rather, they argue that the deputy commissioner was not entitled to enter a “default order” awarding benefits without there being some evidence in the record supporting the award. We agree.
It is fundamental that our scope of review in determining whether there is evidence sufficient to sustain an order is that where there is competent substantial evidence to support the deputy’s factual findings, we must accept his findings. Swanigan v. Dobbs House, 442 So. 2d 1026 (Fla. 1st DCA 1983). In this case, there is no evidence to support the order and in fact there are no findings save the one that appellee is entitled to the requested benefits. Such an order must be reversed. Venable v. Grandeur Arabians, 464 So. 2d 625 (Fla. 1st DCA 1985).
Nor is the deputy commissioner’s order affirmable based on the E/C’s failure to be present at the hearing. There is no presumption that a claimant whose claim has been controverted is entitled to the benefits requested in the absence of any evidence. The claimant still has the burden of presenting competent substantial evidence from which the deputy can determine such entitlement. See e.g. Fort Pierce Growers Association v. Storey, 155 Fla 769, 21 So. 2d 451 (1945).
Unlike the Rules of Civil Procedure, the Florida Workers’ Compensation Rules of Procedure do not provide for the entry of a default or judgment thereon. Nevertheless, claimant/appellee points to this Court’s decision in Threat v. Rogers, 443 So. 2d 149 (Fla. 1st DCA 1983) as authority therefor. In Threat, this court affirmed a deputy commissioner who granted rehearing and vacated an order where the employer and carrier demonstrated that the employer’s failure to appear at the hearing was due to excusable neglect and that the employer had an arguably meritorious defense. Compare Drexel Properties Inc. v. Brown, 443 So. 2d 150 (Fla. 1st DCA 1983) (Smith, Robert P. Jr., J., dissenting). Ap-pellee reads too much into Threat. Nothing in the Threat opinion indicates that the initial order, which was later vacated, had been entered without any evidence in the record to support it or that such would be permissible.
In the instant case, upon the E/C’s failure to appear, the proper procedure would have been for the deputy to have taken evidence presented by the claimant and to make a determination of claimant’s entitlement to compensation benefits based on such evidence.
REVERSED and REMANDED.
JOANOS and THOMPSON, JJ., concur.
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BEE GEE Shrimp, Inc. v. Petra Carreras, 516 So. 2d 1121 (Fla. 1st DCA 1987)…d accordingly did not forward the February 3 notice to counsel.3 [*1123] Additionally, we find improper the deputy’s entering an order on the merits at the pretrial conference. We reemphasize our position taken in Geiger-Ricketts Dev. Co. v. Alsman, 499 So. 2d 40 (Fla. 1st DCA 1986), that the Florida Workers’ Compensation Rules of Procedure do not provide for the entry of a default or judgment thereon. There is no presumption that a claimant whose claim has been controverted is entitled to the benefits reque…
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Avon Park Corr. Inst. & Alexisis Risk Mgmt. Serv. v. Campbell, 565 So. 2d 375 (Fla. 1st DCA 1990)…points by their failure to appear. We find merit only in appellant’s second point on appeal. The Florida Workers’ Compensation Rules of Procedure do not provide for the entry of a default or a judgment thereon. Geiger-Ricketts Dev. Co. v. Alsman, 499 So. 2d 40 (Fla. 1st DCA 1986). If an employer/earrier fails to appear at a hearing, claimant still has the burden of presenting evidence of entitlement to benefits. Bee Gee Shrimp, Inc. v. Carreras, 516 So. 2d 1121 (Fla. 1st DCA 1987). In order to include cla…
Authorities Cited
- Swanigan v. Dobbs House & Am. Motorists Ins. Co., 442 So. 2d 1026 (Fla. 1st DCA 1983)
- Threat v. Rogers, 443 So. 2d 149 (Fla. 1st DCA 1983)
- Drexel Props., Inc. v. Brown, 443 So. 2d 150 (Fla. 1st DCA 1983)
- Venable v. Grandeur Arabians & Fla. Farm Bureau, 464 So. 2d 625 (Fla. 1st DCA 1985)
- Fort Pierce Growers Ass'n & Standard Accident Ins. Co. v. Storey, 155 Fla. 769 (Fla. 1945)