BEE GEE SHRIMP, INC. AND NORTHBROOK PROPERTY & CASUALTY, APPELLANTS,
v.
PETRA CARRERAS, APPELLEE
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Bee Gee Shrimp, Inc. and its carrier appealed a deputy commissioner's order striking their defenses and awarding the claimant medical benefits and wage determination as sanctions for failure to appear at a pretrial conference. The court reversed, finding the sanctions unduly harsh, the failure to appear was not willful, and the deputy improperly entered a merits determination at a pretrial conference without competent and substantial evidence.
The court held that the deputy commissioner abused his discretion by imposing unduly harsh sanctions, as the failure to appear resulted from a simple misunderstanding rather than willful disobedience. The court further held that the deputy improperly entered an order on the merits at the pretrial conference, as Florida Workers' Compensation Rules do not provide for default judgments and the claimant must present competent and substantial evidence to establish entitlement to benefits, regardless of the employer/carrier's failure to appear.
[1] A deputy commissioner abuses discretion by imposing unduly harsh sanctions for an employer/carrier's failure to attend a pretrial conference when the failure appears to b…
[2] A deputy commissioner cannot enter an order on the merits at a pretrial conference, as Florida Workers' Compensation Rules of Procedure do not provide for the entry of a…
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Join FLexlaw to unlock all legal intelligence“Although it is indeed within the deputy's discretion to determine whether the facts of a particular case constitute excusable neglect, mistake, or inadvertence, so as to support a motion to vacate a compensation order, we hold that in the instant case the deputy abused his discretion and that the sanctions imposed for the employer/carrier's failure to appear were unduly harsh.”
Establishes the standard for discretionary review of motions to vacate and the court's conclusion that sanctions were improper.
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Join FLexlaw to unlock all legal intelligenceOn July 21, 1986, the employer/carrier filed a notice to controvert the claimant's industrial injury claim. The deputy commissioner ordered a pretrial…
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WIGGINTON, Judge.
This cause is before us from an order of the deputy commissioner denying the em ployer/carrier’s motion to vacate a prior order imposing sanctions, determining claimant’s average weekly wage, and awarding the claimant medical benefits. We reverse.
On July 21, 1986, the employer/carrier filed a notice to controvert claimant’s alleged industrial injury. On that same day, claimant, by and through her attorney, filed a formal claim. Later, on October 30, claimant filed an application for hearing.
On January 5, 1987, the deputy commissioner ordered the employer/carrier and claimant’s attorney to set a pretrial conference. The letter specifically directed counsel for claimant to call the carrier to determine who would be representing the employer/carrier. Thereafter, on January 19, claimant’s counsel wrote a letter to the carrier’s adjuster requesting the adjuster to advise him as soon as possible of the names of the carrier’s attorneys who would be handling the matter so that a pretrial conference might be scheduled with his office.
The record does not reflect any response to that letter.
However, certain of the deputy commissioner’s notes reflect that on February 2, 1987, his office called the carrier to inquire of the name of its attorney, but received no answer. The next day, the deputy commissioner’s office sent an “Order and Notice of Hearing” to all parties which specifically requested the employer and the carrier to notify their attorney immediately.
On February 4, counsel for the employer/carrier filed a Notice of Appearance with the Division of Workers’ Compensation.
Subsequently, on February 19, a pretrial conference was held before the deputy, whose notes reflect that no one attended on behalf of the employer/carrier. As a result thereof, the deputy entered an order on February 27 striking the employer/carrier’s defenses as a sanction for their failure to attend1 and finding claimant entitled to payment by the employer/carrier of her outstanding medical bills, as well as to evaluation and treatment by an orthopedic surgeon or hand specialist. The order also found that claimant had not reached maximum medical improvement and determined her average weekly wage.
Upon receipt of the deputy’s order, the employer/carrier filed a “Motion to Vacate, Remove Sanctions and Application for Hearing.” The motion was denied, the deputy finding that his earlier orders had been “ignored,” and that not only had claimant been frustrated but also that the functions of his office had been frustrated by the employer/carrier’s delinquency.
Although it is indeed within the deputy’s discretion to determine whether the facts of a particular case constitute excusable neglect, mistake, or inadvertence, so as to support a motion to vacate a compensation order,2 we hold that in the instant case the deputy abused his discretion and that the sanctions imposed for the employer/carrier’s failure to appear were unduly harsh. There has been no showing that the employer/carrier arbitrarily or wilfully disobeyed an order of the deputy commissioner; rather, their failure to attend the pretrial conference was apparently the result of a simple misunderstanding. Since the Notice of Appearance was not filed by the employer/carrier until February 4, 1987, and since it was filed with the division, it was not available, in hand, when the deputy sent out the Order and Notice of Hearing on February 3.
Consequently, that order was not served on counsel for the employer/carrier. Further, as the carrier had retained counsel, it assumed, albeit incorrectly, that any notice of pretrial conference or notice of hearing would be served directly on its attorney, and accordingly did not forward the February 3 notice to counsel.3 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 requested in the absence of any evidence, and, despite the fact that the employer/carrier may fail to be present at the hearing, the claimant still has the burden of presenting competent and substantial evidence from which the deputy could determine such entitlement.
Moreover, in light of the supreme court’s opinion in Blackwood v. Penwoven, Inc., 140 So. 2d 108 (Fla.1962), we seriously doubt that a pretrial conference can be the basis for an order determining the rights of the parties absent a stipulation to that effect or an otherwise clear waiver of their right to a hearing. As was held in Black-wood, the informality of the proceedings before a deputy commissioner “does not mean that the formalities of notice, hearing, and the necessary introduction of competent substantial evidence which accords with logic and reason to support any order can be dispensed with_” 140 So. 2d at 111.
In the instant case, the only notice was a “conference,” during which the only “evidence” before the deputy commissioner consisted of pleadings and some unauthenticated emergency room reports. The deputy has made no finding in his order as to the compensability of claimant’s injury and we can glean no evidence of such from the record. The order on its face is deficient, as lacking adequate findings, rendering it impossible for this Court to carry out its duty of review,4 and certainly is not based on competent and substantial evidence in accord with logic and reason.
Accordingly, we reverse the deputy’s order denying the employer/carrier’s motion 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 Tampa office, was not forwarded to the Jacksonville office as had been done with the initial claim and a prior order. It was also shown that the carrier probably precipitated the miscommunication by providing the Tampa address, as opposed to the Jacksonville address.
. Venable v. Grandeur Arabians, 464 So. 2d 625, 626 (Fla. 1st DCA 1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Horizon Healthcare & U.S.F. & G. v. Murphy, 660 So. 2d 1065 (Fla. 1st DCA 1995)…fees, or such other sanctions as the judge of compensation claims shall deem appropriate. (Emphasis added.) We nevertheless agree with the employer that the instant sanctions are an abuse of the JCC’s discretion. Bee Gee Shrimp, Inc. v. Carreras, 516 So. 2d 1121 (Fla. 1st DCA 1987). There is competent, substantial evidence to support the conclusion that the employer’s attorney deliberately ignored the JCC’s order.2 Brooks, the employer’s lawyer, admits that opposing counsel’s memorandum was served on him th…
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Amerimark, Inc. v. Hutchinson, 882 So. 2d 1114 (Fla. 1st DCA 2004)…r bad faith); Plouffe v. Lake County Sheriff's Office, 653 So. 2d 507 (Fla. 1st DCA 1995) (concluding that sanctions were not warranted absent a showing that the employer/servicing agent had defied the JCC’s order); Bee Gee Shrimp, Inc. v. Carreras, 516 So. 2d 1121 (Fla. 1st DCA 1987) (holding that striking the E/C’s defenses was unduly harsh, absent a showing that the E/C had arbitrarily or willfully disobeyed the JCC’s order). Because the JCC’s order did not consider whether the E/C’s mailing of the payment…
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Avon Park Corr. Inst. & Alexisis Risk Mgmt. Serv. v. Campbell, 565 So. 2d 375 (Fla. 1st DCA 1990)…t 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 claimant’s fringe benefits in the calculation of average weekly wage, there must be some evidence that said benefits were vested. Munroe Regional Medical Center v. Ricker, 489 So. 2d 785 (Fla. 1st DCA 1986).…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Threat v. Rogers, 443 So. 2d 149 (Fla. 1st DCA 1983)
- Venable v. Grandeur Arabians & Fla. Farm Bureau, 464 So. 2d 625 (Fla. 1st DCA 1985)
- Blackwood v. Penwoven, Inc., 140 So. 2d 108 (Fla. 1962)
- Geiger-Ricketts DEV. Co. & Aetna Cas. & Sur. Co. v. Alsman, 499 So. 2d 40 (Fla. 1st DCA 1986)
- Johnson's v. Pitchford, 496 So. 2d 951 (Fla. 1st DCA 1986)