ALACHUA COUNTY BOARD OF COUNTY COMMISSIONERS AND PALMER & CAY/CARSWELL, APPELLANTS,
v.
EMANUEL STARLING, APPELLEE
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The Florida First District Court of Appeal reversed a workers' compensation judge's award of benefits to an employee based solely on the employer's failure to timely file a notice of denial of compensability. The court held that procedural default in filing the notice does not result in forfeiture of the right to contest compensability on the merits.
The court held that there is no procedural default, and failure to file a timely notice of denial does not result in forfeiture of the right to contest compensability. The case must be remanded for the JCC to address the merits of compensability rather than relying solely on the procedural failure.
[1] Failure to timely file a notice of denial of compensability does not result in a forfeiture of the employer's or carrier's rights to contest compensability.
[2] A judge of compensation claims may not deem a condition compensable solely on the basis of an employer/servicing agent's procedural default in failing to timely file a no…
Previewing 2 of 4 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“the penalties for failing to file a [timely] notice of denial do not include forfeiture of the appellants' rights to contest compensability”
Establishes that procedural failure to file timely notice does not strip the employer of substantive right to contest compensability
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Join FLexlaw to unlock all legal intelligenceEmanuel Starling filed a workers' compensation claim. Alachua County Board of County Commissioners and Palmer & Cay/Carswell (the employer/servicing a…
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PER CURIAM.
Alachua County Board of County Commissioners and Palmer & Cay/Carswell appeal an order in which the judge of compensation claims awarded Emanuel Starling temporary total disability benefits, past and future med ical care, attorney’s fees, and taxable costs, because the employer/servicing agent did not comply with the provisions of section 440.192(8), Florida Statutes (1995), in that a notice of denial of compensability was not timely filed. In deeming the condition compensable, the JCC relied on Waffle House v. Hutchinson, 673 So. 2d 883 (Fla. 1st DCA 1996), review denied, 683 So. 2d 486 (Fla.1996), and did not have the benefit of this court’s opinion in North River Insurance Company v. Wuelling, 683 So. 2d 1090 (Fla. 1st DCA 1996).*
We find no procedural default. “[T]he penalties for failing to file a [timely] notice of denial do not include forfeiture of the appellants’ rights to contest compensability. See Wuelling, 683 So. 2d at 1092 n. 1 (describing penalties that are available).” Russell Corp. v. Brooks, 698 So. 2d 1334, 1335 (Fla. 1st DCA 1997). Because the JCC based his decision only on the procedural default, we reverse and remand for further proceedings consistent with this opinion. “Appellants’ position is procedurally equivalent to that of an employer or carrier who timely denies a petition for all benefits requested, willing to take its chances at mediation and, that failing, litigation with all its attendant risks.” Russell Corp., 698 So. 2d at 1335.
Reversed and remanded.
ERVIN, DAVIS and BENTON, JJ., concur. *
See also Russell Corp. v. Brooks, 698 So. 2d 1334 (Fla. 1st DCA 1997); Commercial Carrier Corp. v. Madsen, 695 So. 2d 770 (Fla. 1st DCA 1997)(re-versing award of permanent total disability benefits where judge of compensation claims relied on Waffle House); Crawford and Co. v. Barites, 691 So. 2d 1142 (Fla. 1st DCA 1997)(holding error to award permanent total disability benefits on' grounds that employer/carrier failed to file notice of denial within fourteen days of claim for benefits); Spence v. Trader Publ'g Co., 688 So. 2d 4 (Fla. 1st DCA 1997); Jupiter Hosp. v. Wall, 688 So. 2d 3 (Fla. 1st DCA 1997)(reversing order which determined compensability on the basis of Waffle House)-, Mellon Sec. & Sound v. Custer, 687 So. 2d 1372, 1373 (Fla. 1st DCA 1997); Olsten Staffing Servs. v. Cooks, 694 So. 2d 52 (Fla. 1st DCA 1997)(treating appellee’s motion to dismiss as confession of error and reversing for further proceedings in light of Wuelling); E.H. v. Temporary Labor Source, Inc., 687 So. 2d 884 n. 1 (Fla. 1st DCA 1997)(remanding to JCC to resolve claimant's contention that employer/carrier untimely denied compensability in light of Wuell-ing)-, Home Shopping Network v. Skaggs-Webb, 694 So. 2d 46 (Fla. 1st DCA 1997).
Cases With Similar Vibessemantic neighbors from the corpus
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Mitchell v. Sunshine Cos., 850 So. 2d 632 (Fla. 1st DCA 2003)…did not then accept the claim, and the failure to timely respond is treated as the procedural equivalent of a notice of denial. Russell Corp. v. Brooks, 698 So. 2d 1334 (Fla. 1st DCA 1997); see also Alachua County Bd. of County Comm’rs v. Starling, 699 So. 2d 310 (Fla. 1st DCA 1997). As indicated in McDonald’s Restaurant # 7160 v. Montes, 736 So. 2d 768 (Fla. 1st DCA 1999), the claimant was therefore entitled to a fee award if his attorney then successfully prosecuted the permanent total disability claim.…
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Bussey v. Wal-Mart Store # 725 & Integrated Administrators, 867 So. 2d 542 (Fla. 1st DCA 2004)…est. # 7160 v. Montes, 736 So. 2d 768, 769 (Fla. 1st DCA 1999) (noting that a “carrier that fails to respond to a claimant’s petition for benefits within 14 days is deemed to have denied the claim”); Alachua County Bd. of County Comm’rs v. Starling, 699 So. 2d 310, 311 (Fla. 1st DCA 1997) (holding that failure to respond does not amount to a procedural default). Thus, our precedent establishes that the E/C’s decision not to respond within 14 days operates as a denial. Bussey, nevertheless, places a great deal…
Authorities Cited (15 total)
- The N. River Ins. Co. v. Wuelling, 683 So. 2d 1090 (Fla. 1st DCA 1996)
- Russell Corp. & Thomas Howell Group/GAB Robbins v. Brooks, 698 So. 2d 1334 (Fla. 1st DCA 1997)
- Waffle House & O'Steen Adjusting Servs. v. Lecia Hutchinson, 673 So. 2d 883 (Fla. 1st DCA 1996)
- Ivory Lee Robinson v. State, 694 So. 2d 46 (Fla. 1st DCA 1997)
- Mellon Sec. & Sound & PCA Solutions, Inc. v. Custer, 687 So. 2d 1372 (Fla. 1st DCA 1997)
- Miles v. Hon. Marlene M. Alva, 687 So. 2d 884 (Fla. 5th DCA 1997)
- In the Interest of L.M.G. v. State, 687 So. 2d 884 (Fla. 2d DCA 1997)
- R. J. Higbee, Inc. v. Wright, 688 So. 2d 4 (Fla. 1st DCA 1997)
- Commercial Carrier Corp. & Comcar Indus., Inc. v. Merdin Madsen, 695 So. 2d 770 (Fla. 1st DCA 1997)
- Mings v. State, 688 So. 2d 3 (Fla. 1st DCA 1997)