Betancourt v. Sears Roebuck & Co., 95-3582

• Court: Court of Appeal of Florida (US)
• Writing for the Court: ERVIN; BARFIELD
• Citation: 693 So.2d 680
• Parties: 22 Fla. L. Weekly D1189 . SEARS ROEBUCK & CO. and Kemper Insurance Company, Appellees. District Court of Appeal of Florida, First District
• Docket Number: No. 95-3582,95-3582
• Decision Date: 08 May 1997

Page 680

693 So.2d 680 22 Fla. L. Weekly D1189 Norma BETANCOURT, Appellant,
v.
SEARS ROEBUCK & CO. and Kemper Insurance Company, Appellees. No. 95-3582. District Court of Appeal of Florida,
First District. May 8, 1997.

Page 681

Jay M. Levy of Jay M. Levy, P.A., Miami, for Appellant.

Eduardo E. Neret of Akerman, Senterfitt & Eidson, P.A., Miami, for Appellees.

EN BANC

ERVIN, Judge.

This court, pursuant to Florida Rule of Appellate Procedure 9.331, directs that this case be determined en banc in order to maintain uniformity of this court's decisions. The issue giving rise to the need for en banc determination is whether this court has jurisdiction to consider an appeal from an order wherein the judge of compensation claims (JCC) failed to rule on a claim that was ripe for adjudication and properly before him. We hold that under the circumstances presented, this court has jurisdiction to consider the appeal. Nevertheless, because the case law relating to this issue has not been clearly expressed, we establish the following guidelines to be applied to situations wherein rulings have been omitted from workers' compensation orders.

The order on appeal arose from a claim for temporary partial disability (TPD) benefits from December 18, 1993, through November 11, 1994. Although the JCC found that there was no competent, substantial evidence (CSE) to support the TPD claim for the period from December 18, 1993, through March 15, 1994, he nonetheless found CSE to support an award for the succeeding period from March 16 through October 15, 1994. While the JCC indicated in the order that benefits for the period from October 16 through November 11, 1994, were at issue, he made no ruling on that claim.

Due to the absence of an adjudication on a matured claim for disability benefits during the period from October 16 to November 11, 1994, this court issued an order to show cause why the case should not be dismissed for lack of jurisdiction in light of the holding in Emro Marketing v. Schwier, 670 So.2d 1141 (Fla. 1st DCA 1996). We also referred to Florida Rule of Appellate Procedure 9.110(m), and we allowed the JCC, without further leave of this court, to enter another order within the 30-day period of remand.

Instead of seeking an amended order from the JCC, claimant filed a response asserting

Page 682

that Emro Marketing is distinguishable, because the JCC in that case specifically reserved ruling on an issue that was ripe for adjudication, whereas, in the present case, the JCC made no ruling or reservation of jurisdiction. Claimant also points out that Emro Marketing followed a long line of cases holding that this court does not have jurisdiction to consider appeals from orders in which the JCC reserved jurisdiction on mature issues, and she cites Southern Wine & Spirits, Inc. v. Hernandez, 442 So.2d 1061 (Fla. 1st DCA 1983); Town of Palm Beach v. Watts, 426 So.2d 1312 (Fla. 1st DCA 1982); and Sheffield Steel Products v. Tripp, 433 So.2d 46 (Fla. 1st DCA 1983), as supporting authority.

Claimant contends that the outcome of the jurisdictional question is instead controlled by such cases as Dunn Lumber & Supply Co. v. Roy, 382 So.2d 51 (Fla. 1st DCA 1980); Estech General Chemicals Corp. v. Graham, 424 So.2d 138 (Fla. 1st DCA 1982); Washington Square Associates, Ltd. v. Bourne, 408 So.2d 809 (Fla. 1st DCA 1982); and Thomas v. T & T Trucking, 382 So.2d 449 (Fla. 1st DCA 1980). These cases stand for the proposition that when a ripe claim is presented, and the JCC fails to rule on it, the proper resolution is to reverse and remand the case for entry of an appropriate order, because the JCC failed his or her duty to adjudicate a ripe claim. Since this court reached the merits of the disputes in the above cases, they demonstrate that this court has jurisdiction over an appeal from an order which omits a ruling on a claim that was mature for adjudication.

Claimant also identifies in her response a third line of cases which holds that the absence of a ruling constitutes a waiver of the issue or a sub silentio denial, depending upon whether the claimant presented evidence in support of the claim at trial. For example, in Green Thumb Corp. v. Britten, 393 So.2d 613 (Fla. 1st DCA 1981), the claimant made a claim for reimbursement of travel expenses associated with medical treatment, but presented no evidence on the claim at the hearing, and the JCC made no ruling thereon in the order. Thereafter, claimant renewed her claim for mileage reimbursement, which the JCC allowed. In reversing, this court held in Green Thumb that because claimant had neither withdrawn the prior claim, nor sought a continuation of the hearing or a reservation of jurisdiction, the doctrine of res judicata barred the subsequent claim for mileage.

Claimant additionally refers to Buckhalter v. University of Florida, 411 So.2d 1327 (Fla. 1st DCA 1982), for the same principle of law. There the JCC failed to address several issues...