ANDREA MCCLURE, APPELLANT,
v.
GOLDMAN, KLASFELD, HORKEY & FERRARO AND ST. PAUL FIRE & MARINE COMPANY, APPELLEES
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A workers' compensation claimant appealed an order that awarded various benefits but denied claims for penalties, interest, costs, and attorney's fees. The court reversed, finding that penalties and interest should have been awarded for underpayments and excess recoupments, and that the trial judge failed to adequately explain the denial of the attorney's fee claim.
Penalties and interest must be awarded for both the excess recoupment and the unpaid wage loss benefits under Florida Statutes sections 440.20(7) and (9). The trial judge's order denying the attorney's fee claim lacks adequate explanation and must be reconsidered on remand with proper findings. The claimant is entitled to costs for prevailing on various claims.
[1] Penalties and interest may be assessed upon an underpayment of workers' compensation benefits when the employer/carrier fails to demonstrate circumstances beyond its cont…
[2] An employer/carrier may not avoid penalties and interest by failing to provide necessary forms and information for wage loss claims.
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“Sections 440.20(7) and (9), Florida Statutes, permit the assessment of penalties and interest upon an underpayment of compensation.”
Establishes the statutory basis for awarding penalties and interest in workers' compensation cases.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe claimant sustained a compensable workplace injury and received compensation benefits. The carrier suspended and later reduced payments after disco…
The full statement of facts, procedural history, and disposition for this case are member content.
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ALLEN, Judge.
The claimant appeals a workers compensation order by which various benefits were awarded, but claims for penalties, interest, costs, and an attorneys fee were denied. We conclude that the order does not reveal the basis for the denial of an attorney’s fee, and that the circumstances of this case require an award of penalties, interest, and costs.
The claimant sustained an injury which was accepted as compensable, and for which compensation benefits were paid. The carrier suspended payment, and then resumed payment at a reduced rate, after discovering that the claimant had worked during a period for which temporary total benefits were paid. The carrier subsequently recommenced payment at the full rate, but then ceased all payments after determining that the claimant was at maximum medical improvement. Claims were eventually made for wage loss and additional temporary total benefits, together with penalties, interest, costs, and a bad faith attorney’s fee.
At a hearing on the claims, the carrier indicated that it had reduced the claimant’s temporary total benefits in order to recoup the prior overpayment when the claimant had unreported earnings. But the recoupment was not limited to the amount of the claimant’s earnings, so the judge ordered that the claimant be credited for the excess recoupment. Sections 440.20(7) and (9), Florida Statutes, permit the assessment of penalties and interest upon an underpayment of compensation. See Santana v. Atlantic Envelope Co., 568 So. 2d 528 (Fla. 1st DCA 1990). The excess recoupment produced an underpayment, and the employer/carrier has not shown that this resulted from circumstances beyond its control. The carrier persisted in the underpayment even after ascertaining the amount of the claimant’s earnings. Accordingly, penalties and interest should have been awarded upon the excess recoupment.
Penalties and interest should also have been awarded upon the wage loss payments which the judge ordered, and which the employer/carrier had failed to provide. As indicated in Hulbert v. Avis Rent-A-Car Systems, 469 So. 2d 235 (Fla. 1st DCA 1985), the employer/carrier may not avoid the assessment of penalties and interest by awaiting the submission of wage loss forms after they have failed to furnish the claimant with the necessary forms and information.
The claimant sought a bad faith attorney’s fee under section 440.34(3)(b), Florida Statutes (1987). Various benefits were ultimately secured through the intervention of the claimant’s attorney. A bad faith claim may be predicated upon a delay in payment which is occasioned by a reckless failure to ascertain the claimant’s rights. See Holiday Care Center v. Scri-ven, 418 So. 2d 322 (Fla. 1st DCA 1982); Florida Erection Services, Inc. v. McDonald, 395 So. 2d 203 (Fla. 1st DCA 1981); see also, Johnson v. Marriott Hotel, 523 So. 2d 730 (Fla. 1st DCA 1988). The appealed order does not indicate why the attorney’s fee claim was denied. On remand, the judge should reconsider this matter and provide new findings. The judge should either award an attorney’s fee or explain why the fee claim is denied.
Because she prevailed upon various claims in the proceedings below, the claimant is also entitled to an award of costs in accordance with section 440.34(3), Florida Statutes. The order is reversed insofar as it denies the claim for penalties, interest, costs, and an attorney’s fee, and the cause is remanded.
SMITH and ZEHMER, JJ., concur.
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Citator
Cited By
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Escambia Cnty. Bd. of Cnty. Comm'rs v. Reeder, 648 So. 2d 222 (Fla. 1st DCA 1994)…section 440.20(7) & (9) as applying to situations where any installment is paid in part but the rest is withheld incorrectly. Under such circumstances, interest and penalties shall attach. Id. at 530; McClure v. Goldman, Klasfeld, Horkey & Ferraro, 594 So. 2d 353 (Fla. 1st DCA 1992) (reversing order insofar as it denied claim for penalties, interest, costs, and attorney’s fees where compensation was underpaid). In the case at bar, Employer paid compensation but improperly withheld 25 percent. Claimant reque…
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City OF W. Palm Beach & Johns E. Co., Inc. v. Zeilter McGILL, 807 So. 2d 686 (Fla. 1st DCA 2001)…agree. The JCC’s order must set forth the ultimate facts upon which the penalties are based. See Davis v. Broward County Health Dep’t, 570 So. 2d 371 (Fla. 1st DCA 1990). Here, the JCC merely cited McClure v. Goldman, Klasfeld, Horkey, and Ferraro, 594 So. 2d 353 (Fla. 1st DCA 1992), as support for imposing penalties. This was insufficient as the JCC did not include any ultimate facts apart from the citation. Therefore, we reverse the imposition of penalties on the underpayment and remand to the JCC for a de…
Authorities Cited
- Fla. Erection Servs., Inc. v. Raymer McDONALD, 395 So. 2d 203 (Fla. 1st DCA 1981)
- Holiday Care Ctr. v. Scriven, 418 So. 2d 322 (Fla. 1st DCA 1982)
- Hulbert v. AVIS Rent-A-Car Sys., Inc., 469 So. 2d 235 (Fla. 1st DCA 1985)
- Katrelia Johnson v. Marriott Hotel & Crawford & Co., 523 So. 2d 730 (Fla. 1st DCA 1988)
- Leocadio Santana v. Atl. Envelope Co. & GAB Bus. Servs., 568 So. 2d 528 (Fla. 1st DCA 1990)