CITRUS CENTRAL AND PROFESSIONAL ADMINISTRATORS, INC., APPELLANTS,
v.
ROBERT GARDNER, APPELLEE
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Citrus Central appeals a workers' compensation judge's denial of its motion to dismiss a claimant's claim for lack of prosecution. The court affirmed, holding that a claim pending upon a claimant's request for hearing is not subject to dismissal merely because a judge has failed to schedule the hearing.
The motion to dismiss was properly denied. Although Rule 4.110(b) permits dismissal when no action has been taken for one year, the rule does not require dismissal when the delay results from the judge's failure to schedule a hearing after claimant has filed an application for hearing. The judge's duty is to set the matter for hearing upon such application, and failure to do so does not constitute lack of prosecution by the claimant.
[1] A workers' compensation claim is not subject to dismissal for lack of prosecution when the claimant has filed an application for hearing, even if the judge delays in sett…
[2] A hearing de novo in an administrative proceeding may encompass the presentation of new and additional evidence.
Previewing 2 of 3 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“While under Florida Workers' Compensation Rule of Procedure 4.110(b) a claim is subject to dismissal for lack of prosecution when it "affirmatively appears that no action has been taken ... for a period of one year," this rule does not require dismissal of a claim upon the judge's delay in setting the matter for hearing after an application for hearing has been filed.”
Establishes that the rule does not mandate dismissal when the delay is attributable to judicial scheduling rather than claimant inaction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1984, the claimant was found to have sustained a compensable workers' compensation injury and was awarded temporary disability and medical benefits…
The full statement of facts, procedural history, and disposition for this case are member content.
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WENTWORTH, Judge.
Employer/carrier appeal a workers’ compensation order by which claimant was awarded various benefits after employer/carrier’s motion to dismiss was denied. We find that the motion, based upon an alleged failure to prosecute, was properly denied since the outstanding claim was pending upon claimant’s request for a hearing. We therefore affirm the order appealed.
Claimant was found to have sustained a compensable accident and injury, and awarded temporary disability and medical benefits by a 1984 order.
In April 1987 a claim for additional benefits was filed together with an application for hearing.
In June 1988 employer/carrier filed a motion to dismiss based upon a lack of prosecution, asserting that “no significant activity” had taken place in more than a year. A hearing was held and the motion to dismiss was denied. Employer/carrier appealed this order, and because the hearing had not been transcribed and the parties and judge could not agree upon a statement of the evidence the order was reversed and the matter remanded for a hearing de novo. See Citrus Central v. Gardner, 543 So. 2d 440 (Fla. 1st DCA 1989).
At this hearing de novo the judge indicated that the motion to dismiss would be considered upon argument of counsel as at the prior hearing, and employer/carrier were not allowed to present the testimony of a new witness. Although this has not been presented as an issue in the present appeal, we note that a hearing de novo may encompass the presentation of new and additional evidence, by which the matter might be determined as if it had not been previously addressed. See 2 Am.Jur.2d Administrative Law, sec. 698; cf. Carnegie v. Department of Public Safety, 60 So. 2d 728 (Fla. 1952).
At the hearing on remand the judge determined that the claim had been pending for over a year, but had been filed with an application for hearing. While under Florida Workers’ Compensation Rule of Procedure 4.110(b) a claim is subject to dismissal for lack of prosecution when it “affirmatively appears that no action has been taken ... for a period of one year,” this rule does not require dismissal of a claim upon the judge’s delay in setting the matter for hearing after an application for hearing has been filed. See Brown v. U.S. Sugar Corp., 562 So. 2d 752 (Fla. 1st DCA 1990).
As in Brown, there is no indication in the present case that the delay was attributable to any subsequent action by claimant. It thus remained the judge’s duty to set the matter for a hearing upon claimant’s application, and the judge properly concluded that his failure to do so does not constitute a lack of prosecution by claimant. The judge therefore correctly denied employer/carrier’s motion to dismiss.
The order appealed is affirmed.
JOANOS and ALLEN, JJ., concur.
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Ford Motor Co. v. Starling, 721 So. 2d 335 (Fla. 5th DCA 1998)…brief, Ford argues that it is not bound by its presentation before the arbitration board and that it is free to submit such new and additional evidence it chooses as though there has been no arbitration decision. It cites Citrus Central v. Gardner, 569 So. 2d 936 (Fla. 1st DCA 1990), for this proposition. Citrus Central, in dictum, did say: "[W]e note that a hearing de novo may encompass the presentation of new or additional evidence, by which the matter may be determined as if it had not been previously add…
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Dixon v. Marion Cnty. Rest. Equip. & the Hartford, 579 So. 2d 416 (Fla. 1st DCA 1991)…PER CURIAM. REVERSED. Mikos v. Sarasota Cattle Company, 453 So. 2d 402 (Fla.1984); Citrus Central v. Gardner, 569 So. 2d 936 (Fla. 1st DCA 1990); Brown v. U.S. Sugar Corp., 562 So. 2d 752 (Fla. 1st DCA 1990). ZEHMER, ALLEN and WOLF, JJ., concur.…
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Kimmins Corp. & Crawford & Co. v. Van Truc, 941 So. 2d 1257 (Fla. 1st DCA 2006)…98 petition as well. The rule is firmly established that a claim will not be dismissed for lack of prosecution if claimant has provided notice of readiness for trial and the JCC subsequently fails to set the case for trial. Citrus Cent. v. Gardner, 569 So. 2d 936 (Fla. 1st DCA 1990). Claimant argues, relying on Brown v. U.S. Sugar Corporation, 562 So. 2d 752, 754 (Fla. 1st DCA 1990), that his petition for attorney’s fees and costs, filed in 1998, furnished such notice. The facts in Brown, however, are distin…
Authorities Cited
- Citrus Cent. & Prof'l Administrators, Inc. v. Gardner, 543 So. 2d 440 (Fla. 1st DCA 1989)
- Brown v. U.S. Sugar Corp. & Gallagher Bassett Servs., 562 So. 2d 752 (Fla. 1st DCA 1990)