CITY OF MIAMI, APPELLANT,
v.
CHARLES SMITH, APPELLEE
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The City of Miami appealed a workers' compensation judge's finding that it abandoned its challenge to compensation benefits for a specified period. The appellate court reversed, holding that the City had clearly raised the issue in its initial brief and that abandonment rules must be construed narrowly.
The City did not abandon its challenge. The City clearly raised the issue of the propriety of the potential $20,431.00 award in its initial brief, and even if ambiguous, the claimant's own challenge to the award within the specified time frame would have preserved the issue. Abandonment rules must be construed narrowly to avoid the appellate court ruling on matters within its jurisdiction following notice of appeal.
[1] A challenge to benefits certified as affected by appeal, but not raised, argued, or encompassed in an appellant's initial brief, shall be deemed abandoned.
[2] A party's prayer for relief in an initial brief may clearly raise an issue even if the request for relief is ambiguous.
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Join FLexlaw to unlock all legal intelligence“Abandonment. Any challenge to benefits certified as affected by appeal under Rule 4.160(a) of these rules, but not raised, argued or encompassed in appellant's (or cross-appellant's) initial brief, shall be deemed abandoned by the appellant (or cross-appellant).”
The applicable rule governing abandonment of issues in workers' compensation appeals
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Join FLexlaw to unlock all legal intelligenceThe City of Miami and Charles Smith had a prior dispute regarding pension offset in a workers' compensation case. An order stated that despite total b…
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PER CURIAM.
In this worker’s compensation case, appellant City of Miami appeals the order of the judge of compensation claims (JCC) finding, pursuant to Florida Workers’ Compensation Rule of Procedure 4.161(c), that the City abandoned any challenge to compensation benefits from January 1, 1977 through July 31, 1989. We reverse.
Rule 4.161(c) states:
Abandonment. Any challenge to benefits certified as affected by appeal under Rule 4.160(a) of these rules, but not raised, argued or encompassed in appellant’s (or cross-appellant’s) initial brief, shall be deemed abandoned by the appellant (or cross-appellant).
The JCC’s ruling on the question of abandonment relates to the prior pension offset dispute between the parties ruled upon by this court in City of Miami v. Smith, 602 So. 2d 542 (Fla. 1st DCA 1992) (on motion for rehearing and/or clarification). In that case, the order from which the City took an appeal stated that should the total of claimant’s workers’ compensation and pension benefits exceed his average monthly wage, claimant is nonetheless entitled to maximum compensation benefits until such time as he is properly credited for $20,431.00 in personal accumulated contributions which were retained by the City and out of which, in part, his disability benefits were paid. In its initial brief on appeal the City prayed “that claimant be reimbursed for the pension offset taken for the period commencing in 1977 through July 31, 1989, and omit any finding or award related to the $20,431.00” (emphasis added). In our view, appellant clearly raised as an issue the propriety of the potential award of $20,431.00 even as it pertains to the specified time period. Moreover, even if one were to conclude that the City’s request for relief was ambiguous, we would still find that claimant did in fact challenge the propriety of the potential award of $20,431.00 to the extent that such award may exceed claimant’s average monthly wage within the specified time frame. We reach this conclusion because Rule 4.160(a) must be construed broadly in order that abandonment be found only in the most obvious of circumstances. To hold otherwise would be to invite the JCC to rule on matters which may be within the jurisdiction of this court following notice of appeal.
REVERSED.
BOOTH, SHIVERS and MINER, JJ., concur.