LEHIGH PORTLAND CEMENT CO. AND TRAVELERS INSURANCE COMPANY, PETITIONERS,
v.
WESLEY BRANCH AND INDUSTRIAL RELATIONS COMMISSION, RESPONDENTS
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The Florida Supreme Court reviewed an Industrial Relations Commission decision awarding attorneys' fees to an injured worker, holding that an employer is not liable for attorneys' fees under Section 440.34(1) when the 21-day payment period begins from actual notice of a claim, not from a medical examination date.
The employer is not liable for attorneys' fees because the 21-day period under Section 440.34(1) begins from the date on which the employer and carrier have actual notice of a claim, which in this case was July 27 when the physician reported his disability rating determination, not June 13 when the examination occurred. The employer could not have known prior to notification that the June 13 examination would result in a permanent partial disability rating.
[1] The twenty-one-day period for an employer to pay benefits, triggering liability for attorneys' fees, begins to run from the date the employer has notice of a claim.
[2] An employer cannot have notice of a permanent partial disability claim until the physician dictates a report and arrives at a disability rating.
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“Section 440.34(1) unambiguously states that the 21-day period begins to run from the date on which the employer and carrier "have notice of (a claim)".”
Establishes the plain language interpretation that triggers the 21-day payment obligation from actual notice of a claim.
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Join FLexlaw to unlock all legal intelligenceRespondent was injured in employment on September 28, 1972, and petitioner timely paid temporary benefits. Respondent returned to work in November 197…
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ENGLAND, Justice.
By petition for writ of certiorari we are asked to review a decision of the Industrial Relations Commission awarding attorneys’ fees. We have jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution (1972).
The sole issue to be determined is whether petitioner is liable for attorneys’ fees under Section 440.34(1), Florida Statutes (1973), which requires the award of fees where an employer fails to pay benefits on or before the twenty-first day after notice of a claim.
Respondent was injured in the course of his employment on September 28, 1972 and he was promptly provided medical treatment. Petitioner timely paid, without contest, all of respondent’s temporary benefits required under the workman’s compensation law. On November 6, 1972, respondent returned to full employment with petitioner. From April 4 to mid-May, 1973, petitioner again voluntarily paid temporary benefits to respondent while he was undergoing medical treatment. Respondent again returned to full employment with petitioner on May 17 and has remained on the job since that time.
Respondent’s treating physician routinely examined him on June 13, 1973, but in contrast to previous visits he concluded that further treatment was unwarranted. The physician delayed until July 27 his decision and report on the appropriate disability rating, at which time he notified petitioner of his conclusion. On August 6, petitioner voluntarily commenced payment of permanent partial disability benefits based on the physician’s report.
Petitioner filed a claim and contested the physician’s disability rating. The Judge of Industrial Claims approved the physician’s rating and denied respondent any attorneys’ fees. The Industrial Relations Commission reversed as to attorneys’ fees, holding that the employer failed to provide benefits within 21 days of the physician’s examination. The Commission erred.
Section 440.34(1) unambiguously states that the 21-day period begins to run from the date on which the employer and carrier “have notice of (a claim)”. Notice in this case was not given until July 27, when the physician dictated his report and arrived at his rating. There was no possible way that the employer could know, prior to being notified, that the physician’s examination on June 13 would result in a permanent partial disability rating. This case is similar to and governed by Paul Smith Constr. Co. v. Florida Ind. Comm’n, 93 So. 2d 735 (Fla.1957).1 The decision of the Industrial Relations Commission as to attorneys’ fees is quashed and that portion of the order of the Judge of Industrial Claims is reinstated.
ROBERTS, BOYD and OVERTON, JJ., concur. ADKINS, C. J., dissents.
. There is no evidence in the record to support the Commission’s conclusions either (i) that the physician determined the permanent rating on June 13 rather than July 27, or (ii) that petitioner insulated itself from information available on that earlier date.
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G & S Packing Co. & Fla. Farm Bureau Ins. Co. v. Driggers, 382 So. 2d 446 (Fla. 1st DCA 1980)…an employee’s disability rating where there was “no possible way that the employer could know, prior to being notified, that the physician’s examination . would result in a permanent partial disability rating.” Lehigh Portland Cement Co. v. Branch, 319 So. 2d 13 (Fla.1975). However, as indicated in Davis v. Edwin M. Green, Inc., 240 So. 2d 4 (Fla.1970): An employer who does not exercise his right to investigate and who forces the burden of proving liability on the claimant to the extent the claimant requir…
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Smith v. Dixie Packers, Inc., 384 So. 2d 709 (Fla. 1st DCA 1980)…en, Inc., 240 So. 2d 4 (Fla.1970). The cases relied upon by the employer-carrier are not applicable. This case does not involve a simple matter of a physician’s delay in reporting the appropriate disability, Lehigh Portland Cement Company v. Branch, 319 So. 2d 13 (Fla.1975); there was no retroactive finding of a maximum medical improvement date, Genera] Services of Florida v. Acquaviva, IRC Order 2-3151 (April 29, 1977), cert. dismissed 354 So. 2d 978 (Fla.1977); and the date of notice of the claimant’s incr…
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Nat'l Airlines, Inc. v. Wikle, 451 So. 2d 908 (Fla. 1st DCA 1984)…om the carrier’s failure to follow through on its request, and responsibility for such breakdown is, therefore, fairly and properly placed on the carrier rather than the claimant. The Supreme Court decision in Lehigh Portland Cement Co. v. Branch, .319 So. 2d 13 (Fla.1975), appears to be closely on point, but it is not. In that case, the Court expressly found that there was no proof that the physician determined the extent of disability on the date of examination rather than six weeks later when the report…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Paul Smith Constr. Co. v. Fla. Indus. Comm'n, 93 So. 2d 735 (Fla. 1957)