Foster v. EG & G FLORIDA, INC.

Decision Date04 September 2001
Docket NumberNo. 1D00-2838.,1D00-2838.
PartiesLorie FOSTER, Appellant, v. E G & G FLORIDA, INC. and Liberty Mutual Insurance Company, Appellees.
CourtFlorida District Court of Appeals

Robert A. Wohn, Jr., Cocoa and Bill McCabe, Esquire of Shepherd, McCabe & Cooley, Longwood, for Appellant.

Jeffrey Hussey, and George W. Boring, III, Esquire of Langston, Hess, Bolton, Znosko & Helm, P.A., Maitland, for Appellees.


This workers' compensation case asks whether penalties otherwise authorized by section 440.20(6), Florida Statutes (1997) for failure to pay "any installment of compensation... payable without an award... within 7 days after it became due" are foreclosed, if not demanded at an emergency conference at which entitlement to the indemnity payments themselves is established.

On or about December 28, 1998, Lori Foster filed a petition for benefits seeking temporary partial or temporary total disability benefits from October 22, 1998, and continuing, together with statutory penalties and interest. She alleged disability arising out of her employment with E G & G Florida, Inc. (E G & G) on September 9, 1997. In the pending case thus initiated, she filed a motion for emergency relief on or about March 2, 1999, that alleged:

The Employee/Claimant is unable and has been unable to work since September 11, 1997, has no source of income and is suffering extreme financial hardship.
Additionally, the Employee/Claimant's authorized treating physician and independent medical examiner have advised that the Employee/Claimant is unable to work and additional surgery is recommended. It does not appear that the Employee/Claimant will be able to return to work in the immediate future as she has not reached maximum medical improvement. The Employee/Claimant is entitled to temporary disability benefits and denial of indemnity benefits has caused extreme hardship as contemplated by Section 440.25(4)(h), Florida Statutes.

Six days after hearing the motion for emergency relief at an emergency conference on May 20, 1999, the original judge of compensation claims entered an order finding a bona fide emergency and awarding Ms. Foster temporary total disability benefits from January 21, 1999, to the date of the order and continuing. (The propriety of this ruling is not before us.) The order on the motion for emergency relief expressly reserved jurisdiction to determine entitlement to penalties and all other issues raised in Ms. Foster's petition for benefits.

Eventually the petition for benefits itself came on for hearing before a successor judge of compensation claims. He awarded Ms. Foster temporary total disability benefits for the period from November 1, 1998, through January 20, 1999 (the day before the emergency period began), subject only to the statutory 104 week cap on temporary disability benefits. See generally § 440.15(2)(a) & (4)(b), Fla. Stat. (1997); Okeechobee Health Care v. Collins, 726 So.2d 775, 776-78 (Fla. 1st DCA 1998). Under section 440.20(6), Florida Statutes (1997), the compensation order awarded penalties and interest on the temporary total disability benefits awarded for November 1, 1998, through January 20, 1999, but did not award penalties on the temporary total disability benefits the predecessor judge of compensation claims had earlier awarded on an emergency basis for the period from January 21, 1999, to May 26, 1999.

Ms. Foster then filed a motion to assess penalties on the temporary total disability benefits awarded for the period beginning January 21, 1999, relying on section 440.20(6), Florida Statutes (1997), which provides:

If any installment of compensation for... disability ... payable without an award is not paid within 7 days after it becomes due, ... there shall be added to such unpaid installment a punitive penalty of an amount equal to 20 percent of the unpaid installment or $5, which shall be paid at the same time as, but in addition to, such installment of compensation, unless notice is filed under subsection (4) or unless such nonpayment results from conditions over which the employer or carrier had no control.

Acting on an amended motion to assess penalties, the judge of compensations claims declined to award the disputed penalties, explaining:

The wording of the Statute indicates that the issue is prosecuted before a Judge of Compensation Claims without specifically claiming the additional compensation in the nature of a penalty under this section, he will be deemed to have acknowledged that owing to conditions over which the employer or carrier had no control, such installment could not be paid within the period prescribed for payment and to have waived his right to claim such penalty. The Employee/Claimant elected to proceed under a Motion for Emergency Relief to obtain reinstatement of indemnity benefits. In seeking reinstatement of the benefits, the Claimant failed to raise in her Motion the request for imposition of penalties. Since the Claimant proceeded under § 440.25(4)(h), Florida Statutes, rather than a merit hearing and further failed to raise the issue of penalties in the Motion for Emergency Relief, that issue in effect was waived. I further find that pursuant to Statute, the Employer/Carrier had no control over the conditions that were the subject of the Emergency Relief Motion and no penalties are warranted.

Here as below, E G & G and its workers' compensation insurance carrier, Liberty Mutual Insurance Company (Liberty Mutual), contend that Ms. Foster's failure to ask for penalties at the emergency conference, coupled with the absence of any mention of penalties in her motion for emergency relief, precludes an award of penalties on the indemnity benefits for the period between January 21, 1999, and May 26, 1999. E G & G and Liberty Mutual rely on this statutory language:

When any installment of compensation payable without an award has not been paid within 7

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