City of Crestview v. Howard, No. 94-3658
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | KAHN |
| Citation | 657 So.2d 73 |
| Docket Number | No. 94-3658 |
| Decision Date | 13 July 1995 |
| Parties | 20 Fla. L. Weekly D1614 CITY OF CRESTVIEW and Insurance Servicing Adjusting Co., Appellants, v. James D. HOWARD, Appellee. |
Page 73
v.
James D. HOWARD, Appellee.
First District.
Millard L. Fretland and Douglas F. Miller of Clark, Partington, Hart, Larry, Bond, Stackhouse & Stone, Pensacola, for appellants.
Barry Silber of Myrick, Silber & Davis, P.A., Pensacola, for appellee.
KAHN, Judge.
The employer and carrier (E/C) seek review of an order entered by the Judge of Compensation Claims (JCC) finding that claimant's attorney is entitled to a fee under section 440.192(8), Florida Statutes (Supp.1994). We must reverse the attorney's fee award because no such award is due under the fee statute that applies to this case.
Page 74
Claimant James Howard suffered an industrial injury on December 1, 1989. In 1994, he petitioned for permanent total disability benefits, costs and attorney's fees. On March 10, 1994, the docketing judge, see section 440.45(3), Florida Statutes (Supp.1994), found the petition sufficient and referred it to the JCC for disposition on the merits. The petition alleged a date of maximum medical improvement (MMI) of April 28, 1993. The E/C sought confirmation from claimant's treating physician of MMI date and was informed that claimant had not yet reached MMI. Then, on July 1, 1994, E/C received notification from the treating physician that claimant reached MMI on June 23, 1994. E/C accepted claimant as permanently and totally disabled on July 20, 1994, and mailed checks for accrued benefits on July 21, 1994. Only claimant's entitlement to attorney's fees remained for adjudication.
At the hearing, E/C argued that the substantive law in force at the time of claimant's injury was section 440.34(3)(b), Florida Statutes (1989), allowing a 21-day grace period to provide the requested benefits without being subject to liability for claimant's attorney's fees. E/C argued that it mailed the checks on July 21, 1994, within 21 days of receiving the July 1, 1994 letter indicating MMI. Accordingly, no attorney's fees could be assessed under the 1989 statute.
Claimant argued, however, that the 1989 version of section 440.34(3)(b) did not control. Rather, the JCC should look to section 440.192(8), Florida Statutes (Supp.1994):
Within 14 days after receipt of a petition for benefits by certified mail, the carrier must either pay the requested benefits without prejudice to its right to deny within 120 days from receipt of the petition or file a notice of denial with the Division.
Claimant argued that because E/C had not acted in 14 days, liability for...
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Stolzer v. Magic Tilt Trailer, Inc., No. 1D03-2747.
...991 (Fla. 1st DCA 1999); Baptist Manor Nursing Home v. Madison, 658 So.2d 1228, 1230 (Fla. 1st DCA 1995); City of Crestview v. Howard, 657 So.2d 73, 74 (Fla. 1st DCA 1995); Kraft Dairy Group v. Sorge, 634 So.2d 720, 721 (Fla. 1st DCA 1994); Mueller v. Searcy, 418 So.2d 397, 399 (Fla. 1st DC......
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Vilches v. City of Dunedin, No. 98-2434.
...fees in this case. See Baptist Manor Nursing Home v. Madison, 658 So.2d 1228, 1230 (Fla. 1st DCA 1995); City of Crestview v. Howard, 657 So.2d 73, 74 (Fla. 1st DCA 1995). Yet, 738 So.2d 992 because claimant's claims for PTD and PTD supplemental benefits did not mature until after the effect......
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Waffle House v. Hutchinson, No. 95-1097
...'is deemed to have accepted the employee's injuries as compensable' " under subsection 440.192(8). City of Crestview v. Howard, 657 So.2d 73 (Fla. 1st DCA 1995) (emphasis added). 1 Certainly, the penalty should be no less stringent for a carrier who does nothing after the filing of a petiti......
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Spence v. Trader Pub. Co., No. 95-1566
...we considered and rejected an argument that section 440.192(8) is a substantive enactment. We relied upon City of Crestview v. Howard, 657 So.2d 73 (Fla. 1st DCA 1995), and noted that "a carrier that neither pays nor timely denies compensation 'is deemed to have accepted the employee's inju......
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Stolzer v. Magic Tilt Trailer, Inc., No. 1D03-2747.
...991 (Fla. 1st DCA 1999); Baptist Manor Nursing Home v. Madison, 658 So.2d 1228, 1230 (Fla. 1st DCA 1995); City of Crestview v. Howard, 657 So.2d 73, 74 (Fla. 1st DCA 1995); Kraft Dairy Group v. Sorge, 634 So.2d 720, 721 (Fla. 1st DCA 1994); Mueller v. Searcy, 418 So.2d 397, 399 (Fla. 1st DC......
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Vilches v. City of Dunedin, No. 98-2434.
...fees in this case. See Baptist Manor Nursing Home v. Madison, 658 So.2d 1228, 1230 (Fla. 1st DCA 1995); City of Crestview v. Howard, 657 So.2d 73, 74 (Fla. 1st DCA 1995). Yet, 738 So.2d 992 because claimant's claims for PTD and PTD supplemental benefits did not mature until after the effect......
-
Waffle House v. Hutchinson, No. 95-1097
...'is deemed to have accepted the employee's injuries as compensable' " under subsection 440.192(8). City of Crestview v. Howard, 657 So.2d 73 (Fla. 1st DCA 1995) (emphasis added). 1 Certainly, the penalty should be no less stringent for a carrier who does nothing after the filing of a petiti......
-
Spence v. Trader Pub. Co., No. 95-1566
...we considered and rejected an argument that section 440.192(8) is a substantive enactment. We relied upon City of Crestview v. Howard, 657 So.2d 73 (Fla. 1st DCA 1995), and noted that "a carrier that neither pays nor timely denies compensation 'is deemed to have accepted the employee's inju......