JEFFRY SIGG, APPELLANT,
v.
SEARS, ROEBUCK & CO. AND ALLSTATE INSURANCE CO., APPELLEES
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Sigg appeals a judge of compensation claims' (JCC) denial of statutory penalties for late payment of workers' compensation benefits. The court reversed, holding that the carrier had constructive notice of the compensation order and therefore must pay the mandatory 20% penalty under Florida Statutes § 440.20(8) for failing to pay benefits within 30 days.
The court held that the carrier had at least constructive notice of the compensation order's entry by April 12, 1990 (seven days after the joint petition was filed, as required by § 440.20(12)(c)), and therefore the statutory penalty of 20% of unpaid compensation was mandatory and could not be waived.
[1] A judge of compensation claims must enter an order approving a lump-sum stipulation within seven days of its filing.
[2] An employer/carrier is on constructive notice of a compensation order when the statutory deadline for its entry has passed.
Previewing 2 of 5 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“If any compensation, payable under the terms of an award, is not paid within 30 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof, which shall be paid at the same time as, but in addition to, such compensation, unless review of the compensation order making such award is had as provided in s. 440.25.”
States the statutory basis for the mandatory penalty at issue
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Join FLexlaw to unlock all legal intelligenceSigg filed a joint petition and stipulation for a lump-sum settlement on April 5, 1990. The JCC entered an order approving the settlement on April 6, …
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WOLF, Judge.
Jeffry Sigg (claimant) appeals from a final order of the judge of compensation claims (JCC) which denies claimant’s request for penalties pursuant to section 440.20(8), Florida Statutes (1989). While appellant raises three issues on appeal, all of the issues relate to whether, based on the facts of this case, the JCC erred in denying appellant’s request for penalties. We find that the JCC’s findings that the employer/carrier was not on notice of entry of the compensation order is inconsistent with section 440.20(12)(c), Florida Statutes, which requires a JCC to enter an order approving the lump-sum stipulation “within seven days of the filing of such joint petition and stipulation.” We therefore reverse.
The JCC found that the carrier had not received notice of entry of the order approving the lump-sum settlement which was entered and mailed on April 6, 1990. Though compensation was not paid until May 17, 1990, the JCC denied the claimant’s request for sanctions pursuant to sec tion 440.20(8), Florida Statutes, based upon the lack of notice.
The record reflects, however, that the carrier was on notice that the joint stipulation had been presented to the JCC on April 5, 1990. The requirements of section 440.20(12)(c), Florida Statutes (1989), would mandate that the JCC’s order would have to be entered no later than April 12, 1990. The carrier would at least be on constructive notice of the entry of the compensation order at that time. Benefits were not paid until more than 30 days after that date.
Section 440.20(8), Florida Statutes (1989), provides as follows:
If any compensation, payable under the terms of an award, is not paid within 30 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof, which shall be paid at the same time as, but in addition to, such compensation, unless review of the compensation order making such award is had as provided in s. 440.25.
In light of the clear intent of section 440.20(8), Florida Statutes (1989), to promptly get benefits into the hands of the claimant, the facts of this case would not support relieving the carrier of its statutory responsibility. See Steinbrecher v. Better Constr. Co., 587 So. 2d 492 (Fla. 1st DCA 1991).
We, therefore, reverse and remand to the JCC for entry of an order assessing penalties pursuant to section 440.20(8), Florida Statutes (1989).1
The appellant’s request for attorney’s fees is denied. See ACD Corp. v. Walker, 413 So. 2d 33 (Fla. 1st DCA 1981), and cases cited therein.
WIGGINTON and BARFIELD, JJ., concur. . We are not unmindful of the apparent conflict in cases in this district concerning § 440.20(8), Fla.Stat. (1989).
The majority of the cases from this court have determined that the language of the statute is clear and unambiguous and that assessment of the penalty is mandatory when compensation has not been paid within 30 days after it became due. See, for example, Stein-brecher v. Better Constr. Co., 587 So. 2d 492 (Fla. 1st DCA 1991); Etheridge v. McKenzie Tank Lines, 557 So. 2d 962 (Fla. 1st DCA 1990); City of Miami v. Watkins, 579 So. 2d 759 (Fla. 1st DCA 1991).
Several cases from this court, however, have stated that the JCC has discretion as to whether to assess the statutory penalty. Eller-bee v. Concorde Roofing Co., 461 So. 2d 206 (Fla. 1st DCA 1984); Paver Dev. Co. v. McDevitt, 419 So. 2d 1156 (Fla. 1st DCA 1982); Crowell v. South Broward Hosp. Dist., 378 So. 2d 801 (Fla. 1st DCA 1979), cert, denied, 392 So. 2d 1373 (Fla.1980).
In the latest case from this court, Steinbrecher, supra, the panel recognized the apparent conflict, determined that the preferable position was to hold that the provision was mandatory, and said that the cases drawing a contrary conclusion were factually distinguishable.
The facts in the instant case also do not support a waiver of the penalty.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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City OF Miami v. Bell, 606 So. 2d 1183 (Fla. 1st DCA 1992)…dge of facts that require payment of PTD benefits under chapter 440), “there shall be added to such unpaid installment a punitive penalty” of 10%. The use of the word "shall” in this context is mandatory in meaning. See Sigg v. Sears, Roebuck & Co., 594 So. 2d 329 n. 1 (Fla. 1st DCA 1992); City of Miami v. Watkins, 579 So. 2d 759 (Fla. 1st DCA 1991). Payment of the statutory penalty required by subsection (7) can be excused only if a timely and appropriate notice to controvert has been filed in accordance wit…
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Bell v. Univ. OF Fla. & Div. of Risk Mgmt., 652 So. 2d 460 (Fla. 1st DCA 1995)…of the “facts and circumstances” of the case. More recent decisions of this court, with which we agree, have held that such penalties are mandatory, in contrast to the authority cited by the JCC in his order. Compare Sigg v. Sears, Roebuck and Co., 594 So. 2d 329 (Fla. 1st DCA 1992); Steinbrecher v. Better Construction Co., 587 So. 2d 492 (Fla. 1st DCA 1991); City of Miami v. Watkins, 579 So. 2d 759 (Fla. 1st DCA 1991) with Paver Development Corp. v. McDevitt, 419 So. 2d 1156 (Fla. 1st DCA 1982); Crowell v.…
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Ocala Geriatric Ctr. & Preferred Works v. Tonna L. Davis, 684 So. 2d 228 (Fla. 1st DCA 1996)…each County Sch. Bd. v. Miller-Neal, 674 So. 2d 759, 760 (Fla. 1st DCA 1996), and that the statute allowed an additional seven days, for a total of twelve. While the Miller-Neal court did not expressly overrule Bell (or Sigg v. Sears, Roebuck & Co., 594 So. 2d 329 (Fla. 1st DCA 1992)), the Miller-Neal decision clearly has that effect, insofar as it interprets Florida Rule of Workers’ Compensation Procedure 4.030(c) to allow five days for mailing of the order before compensation “becomes due.” The parties’ se…
Authorities Cited
- Steinbrecher v. Better Constr. Co., 587 So. 2d 492 (Fla. 1st DCA 1991)
- Balboa Ins. Co. v. Julian E. Johnson & Sons, Inc., 378 So. 2d 801 (Fla. 1st DCA 1979)
- Wisdom Ellerbee v. Concorde Roofing Co., 461 So. 2d 206 (Fla. 1st DCA 1984)
- Paver Dev. Corp. & Aetna Ins. Co. v. McDEVITT, 419 So. 2d 1156 (Fla. 1st DCA 1982)
- The ACD Corp. OF Fla. v. Freeman Walker, 413 So. 2d 33 (Fla. 1st DCA 1981)
- City OF Miami v. Watkins, 579 So. 2d 759 (Fla. 1st DCA 1991)
- Etheridge v. McKENZIE Tank Lines, Inc., 557 So. 2d 962 (Fla. 1st DCA 1990)