Brantley v. Allen
| Citation | 538 So.2d 1338,14 Fla. L. Weekly 486 |
| Decision Date | 17 February 1989 |
| Docket Number | No. 88-838,88-838 |
| Parties | 14 Fla. L. Weekly 486 Willard BRANTLEY, Appellant, v. Ronald ALLEN d/b/a Lake Glass and Auto-Owners, Appellees. |
| Court | Court of Appeal of Florida (US) |
George J. Adler, P.A., Orlando, for appellant.
Kurt Preston Hampp, and Jeffrey W. Hensley, of Hampp & Schneikart, P.A., St. Petersburg, for appellees.
The claimant in this workers' compensation case appeals an order of the deputy commissioner (DC) denying his claim for increased average weekly wage (AWW) and compensation rate. We reverse the denial of the claim, and remand for further proceedings.
The record on appeal indicates that the claimant was injured in a compensable accident in June of 1979 and filed his first claim for benefits on July 16, 1979. The employer/carrier (E/C) gave notice the following day that they would accept responsibility for payment of medical treatment and "appropriate comp benefits," and the claim was never heard. In September of 1979, claimant amended his original claim to include a request for attendant care. Although a hearing was set for February of 1980, claimant notified the DC prior to that date that the issues had been resolved by the parties and, consequently, the hearing was cancelled.
On May 6, 1985, claimant filed a claim for reinstatement of attendant care and an application for hearing. After cancelling two scheduled hearings, a pretrial conference by telephone was eventually set for January 10, 1986. One week before the hearing date, claimant filed an offer to stipulate, listing his position as "reinstatement of nursing services and attendant care, costs, interest, penalties, and attorney's fees." AWW and comp rate were specifically noted not to be at issue. The E/C filed their offer to stipulate several days later, filling in the spaces marked AWW and comp rate with "N/A." A pretrial conference was conducted by telephone on January 10, 1986 and, on the same date, the DC entered a stipulation stating the claimant's and E/C's positions. The spaces beside AWW and comp rate on the DC's stipulation were also left blank. Prior to the scheduled hearing date, the E/C agreed to pay attendant care and attorney's fees, and the hearing was cancelled.
On September 22, 1986, the claimant filed the claim which is the subject of this appeal, in which he requested the correct determination of AWW and corresponding comp rate. In September of the following year, claimant filed an application for hearing on the matter, in which he stated the issue to be "correct determination of claimant's average weekly wage and corresponding compensation rate, to include cost of conversion of group insurance...." Claimant's offer to stipulate was filed on November 19, 1987, stating his position to be "AWW and corresponding compensation rate does not include cost of group insurance to employer or cost of conversion...." No live testimony was presented at the February 11, 1988 hearing; however, the claimant introduced into evidence a statement of weekly wages filed by the E/C on July 3, 1979 showing claimant's wages as not including any gratuities, and a January 18, 1988 deposition...
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