Alachua County Bd. of County Com'rs v. Starling, No. 96-4269

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation699 So.2d 310
Parties22 Fla. L. Weekly D2210 ALACHUA COUNTY BOARD OF COUNTY COMMISSIONERS and Palmer & Cay/Carswell, Appellants, v. Emanuel STARLING, Appellee. First District
Docket NumberNo. 96-4269
Decision Date18 September 1997

Page 310

699 So.2d 310
22 Fla. L. Weekly D2210
ALACHUA COUNTY BOARD OF COUNTY COMMISSIONERS and Palmer & Cay/Carswell, Appellants,
v.
Emanuel STARLING, Appellee.
No. 96-4269.
District Court of Appeal of Florida,
First District.
Sept. 18, 1997.

Suzanne M. Himes, Ocala, for appellants.

F. Emory Springfield of the Law Offices of Springfield & Fine, P.A., Gainesville, for appellee.

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 medical

Page 311

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.

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* 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)(reversing award of permanent total disability benefits where judge of compensation claims relied on Waffle House ); Crawford and Co. v. Barnes, 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...

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2 practice notes
  • Bussey v. Wal-Mart Store# 725, No. 1D02-4804.
    • United States
    • Court of Appeal of Florida (US)
    • February 27, 2004
    ...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 th......
  • Mitchell v. Sunshine Companies, No. 1D02-2767.
    • United States
    • Court of Appeal of Florida (US)
    • July 24, 2003
    ...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 ......
2 cases
  • Mitchell v. Sunshine Companies, No. 1D02-2767.
    • United States
    • Court of Appeal of Florida (US)
    • July 24, 2003
    ...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 ......
  • Bussey v. Wal-Mart Store# 725, No. 1D02-4804.
    • United States
    • Court of Appeal of Florida (US)
    • February 27, 2004
    ...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 th......

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