Marion Correctional Inst., Florida Dept. of Corrections v. Kriegel

• Citation: 13 Fla. L. Weekly 327,522 So.2d 45
• Decision Date: 04 February 1988
• Docket Number: No. 86-1476,86-1476
• Parties: 13 Fla. L. Weekly 327 MARION CORRECTIONAL INSTITUTION, FLORIDA DEPARTMENT OF CORRECTIONS, Appellant, v. Robert KRIEGEL, Appellee.
• Court: Florida District Court of Appeals

Page 45

522 So.2d 45

13 Fla. L. Weekly 327

MARION CORRECTIONAL INSTITUTION, FLORIDA DEPARTMENT OF CORRECTIONS, Appellant, v. Robert KRIEGEL, Appellee.

No. 86-1476.

District Court of Appeal of Florida,

Fifth District.

Feb. 4, 1988.

Rehearing Denied March 14, 1988.

Ernest L. Reddick, Asst. Gen. Counsel, Dept. of Corrections, Tallahassee, for appellant.

Phil Trovillo, P.A., Ocala, for appellee.

PER CURIAM.

The employer/carrier (e/c), Marion Correctional Institution, appeals the circuit court's order granting appellee's motion to enforce his earlier entered workers' compensation order. The deputy commissioner (dc) in the workers' compensation claim had ordered the e/c to pay the appellee temporary total disability benefits (TTD) and to reinstate the leave and sick time which the e/c had used as a substitute for workers' compensation benefits. The e/c argued before the circuit court that the dc lacked subject matter jurisdiction to reinstate leave benefits; therefore the workers' compensation order could not be enforced. We find that, although the issue of subject matter jurisdiction can be raised at any time, even in a proceeding to enforce a workers' compensation order, the dc acted within his jurisdiction and the circuit court's order enforcing the dc's ruling is affirmed.

The appellee, Robert Kriegel, was employed by Marion Correctional Institution on January 30, 1983, when he sustained a compensable industrial injury. On February 8, 1985, Kriegel again was injured and sought compensation, claiming that he had aggravated his 1983 injury. The e/c maintained that the second injury was not compensable, and refused to pay workers' compensation benefits. Kriegel, only able to work a total of 11 hours from February 8 through April 18, 1985, used all of his accrued sick, annual, and special compensatory leave to draw paychecks totaling $2959.75.

The dc subsequently determined that the injury of February 8, 1985 was an aggravation of the pre-existing January 30, 1983 injury, and ordered the e/c to pay the claimant TTD benefits from February 8 through July 10, 1985, and, in addition, to "reinstate the leave and sick time which it [had] used as a substitute for workers' compensation benefits from the date of February 8, 1985." The e/c paid the TTD benefits, but did not reinstate Kriegel's leave time.

Pursuant to Section 440.24(1), Florida Statutes, ¹ Kriegel then filed a petition for rule nisi to enforce the compensation order, alleging that the e/c had failed to reinstate leave and sick time, as required by the order, which had never been appealed and therefore became final 30 days after its entry. The e/c, in opposing the petition, argued that the dc did not possess subject matter jurisdiction to reinstate the employee's leave and sick time, and, if the leave time were reinstated, the employee would receive both full pay as well as workers' compensation benefits for the same period, thereby obtaining a sum greater than his average weekly wage. The claimant's response was that the e/c's argument was not properly before the court in a proceeding on a rule nisi, because the circuit court has no jurisdiction except to determine whether the compensation order remains unsatisfied, and, if so, to enforce its provisions.

Initially, we agree with the claimant that generally a circuit court has no authority in a rule nisi proceeding under section 440.24(1) to consider the merits of the underlying compensation order, or to do anything other than require its enforcement when it remains in full force and effect and unsatisfied. Benne v. Kleuver, 435 So.2d 350 (Fla. 3d DCA 1983); Lillard v. City of Miami, 220 So.2d 413 (Fla. 3d DCA 1969). It is also clearly the law that the defense of lack of jurisdiction of the subject matter may be raised at any time. Jurisdiction of a tribunal's subject matter cannot be conferred by consent, failure to object, or waiver. Wilds v. Permenter, 228 So.2d 408 (Fla. 4th DCA 1969). 20 Am.Jur.2d Courts § 95 (1965) states: "[A]n objection based on the ground of absence of jurisdiction over the subject matter must be considered and may be effectively raised at any time. Hence,...