Orange County School Bd. v. Perkins, No. 92-832

CourtCourt of Appeal of Florida (US)
Writing for the CourtKAHN; JOANOS
Citation619 So.2d 1
Parties83 Ed. Law Rep. 883, 18 Fla. L. Weekly D920 ORANGE COUNTY SCHOOL BOARD and Gallagher Bassett Services, Inc., Appellants, v. Mary Jane PERKINS, Appellee.
Decision Date05 April 1993
Docket NumberNo. 92-832

Page 1

619 So.2d 1
83 Ed. Law Rep. 883, 18 Fla. L. Weekly D920
ORANGE COUNTY SCHOOL BOARD and Gallagher Bassett Services,
Inc., Appellants,
v.
Mary Jane PERKINS, Appellee.
No. 92-832.
District Court of Appeal of Florida,
First District.
April 5, 1993.
Rehearing Denied June 24, 1993.

Timothy F. Stanton, of Moore & Peterson, Orlando, for appellants.

Douglas H. Glicken, Douglas H. Glicken, P.A., Orlando, for appellee.

EN BANC

KAHN, Judge.

Orange County School Board and Gallagher Bassett Services, Inc. (E/SA) appeal an order entered by the Judge of Compensation Claims (JCC) in which the judge refused to dismiss appellee's workers' compensation claim for lack of prosecution, pursuant to Rule 4.110(b), Florida Workers' Compensation Rules of Procedure, and proceeded to authorize Dr. Thomas Brodrick as appellee's authorized treating physician. On appeal, the E/SA argue that the JCC committed error by refusing to dismiss the claim. We affirm.

The facts are without dispute. On April 3, 1987, appellee Perkins settled all aspects of her workers' compensation claim excluding medical expenses for future treatment. Pursuant to agreement between Perkins and the E/SA, Dr. Stanford was to be Ms. Perkins' only authorized treating physician. Subsequently, however, Dr. Stanford retired from practice, leaving Perkins without an authorized treating physician.

On January 10, 1989, Perkins filed a claim for benefits seeking medical care and specifically seeking an authorized treating physician. A notice of hearing mailed February 8, 1989 set the hearing on the petition for October 4, 1989. Prior to that date, however, the JCC cancelled the hearing and returned the file to the Department of Labor and Employment Security in Tallahassee. Along with the file, the JCC sent a form transmittal letter noting the cancellation of the October 4, 1989 hearing. The file and transmittal letter were logged in by the Department of Labor and Employment Security on September 28, 1989, according to records in the Division of Workers' Compensation file.

On September 27, 1990, the E/SA moved for an order of dismissal for lack of prosecution of the claim. On January 24, 1991,

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the JCC denied the motion to dismiss. 1 The E/SA again raised the issue of failure to prosecute at the merits hearing.

The JCC again rejected the E/SA's contention finding as follows:

3. The hearing of October 4, 1989 was canceled by the Judge of Compensation Claims. The Order 2 canceling the October 4, 1989 hearing was filed and received by the Department of Labor and Security [sic], in the Records Department, in Tallahassee, Florida, on September 28, 1989. I base this finding on the records contained in the division file.

. . . . .

6. In addition to the pleadings contained in the record, admitted into evidence was correspondence between counsel for claimant and counsel for the employer/carrier. Specifically, on February 6, 1989, counsel for the employer/carrier asked what additional medical is claimant requesting. On March 27, 1989, counsel for the employer/carrier wrote to counsel for claimant.

'Please let me know what doctor Ms. Perkins would like to see. I thought we have agreed to several in the Apopka area, but due to some problems, there have been difficulties in getting her in to see various practitioner. A phone call will probably resolve this matter.'

On September 14, 1989, counsel for claimant wrote to counsel for employer/carrier.

'I am at this time requesting continuing medical care for my client by Dr. Bookhardt in Altamonte Springs.'

On November 8, 1989, counsel for the employer/carrier wrote to counsel to claimant.

'Would your client be interested in seeing Dr. Gomez at the Mid-Florida Orthopedic Group.'

On November 14, 1989, counsel for claimant wrote to claimant.

'At this time, the insurance company has authorized Dr. Juan Gomez at the Mid-Florida Orthopedic Group in Altamonte Springs for your continuing care.'

7. It is...

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6 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...released without antecedent publication of panel decision), quashed by 660 So.2d 668 (Fla.1995); Orange County Sch. Bd. v. Perkins, 619 So.2d 1 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Zundell v. Dade County Sch. Bd., 609 So.2d 1367 (......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...released without antecedent publication of panel decision), quashed by 660 So.2d 668 (Fla. 1995); Orange County Sch. Bd. v. Perkins, 619 So.2d 1 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Zundell v. Dade County Sch. Bd., 609 So.2d 1367 ......
  • v. Limith, No. 1D13–5357.
    • United States
    • Court of Appeal of Florida (US)
    • June 9, 2014
    ...erred in denying the motion to dismiss. In fact, precedent from this court would indicate otherwise.*See Orange Cnty. Sch. Bd. v. Perkins, 619 So.2d 1, 2 n. 1 (Fla. 1st DCA 1993) (explaining appellate [140 So.3d 1067]court denied e/c's petition for writ of certiorari challenging JCC's order......
  • v. Limith, CASE NO. 1D13-5357
    • United States
    • Court of Appeal of Florida (US)
    • June 9, 2014
    ...in denying the motion to dismiss. In fact, precedent from this court would indicate otherwise.* SeePage 3Orange Cnty. Sch. Bd. v. Perkins, 619 So. 2d 1, 2 n.1 (Fla. 1st DCA 1993) (explaining appellate court denied e/c's petition for writ of certiorari challenging JCC's order denying motion ......
  • Request a trial to view additional results
6 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...released without antecedent publication of panel decision), quashed by 660 So.2d 668 (Fla.1995); Orange County Sch. Bd. v. Perkins, 619 So.2d 1 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Zundell v. Dade County Sch. Bd., 609 So.2d 1367 (......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...released without antecedent publication of panel decision), quashed by 660 So.2d 668 (Fla. 1995); Orange County Sch. Bd. v. Perkins, 619 So.2d 1 (Fla. 1st DCA 1993) (en banc decision released without antecedent publication of panel decision); Zundell v. Dade County Sch. Bd., 609 So.2d 1367 ......
  • v. Limith, No. 1D13–5357.
    • United States
    • Court of Appeal of Florida (US)
    • June 9, 2014
    ...erred in denying the motion to dismiss. In fact, precedent from this court would indicate otherwise.*See Orange Cnty. Sch. Bd. v. Perkins, 619 So.2d 1, 2 n. 1 (Fla. 1st DCA 1993) (explaining appellate [140 So.3d 1067]court denied e/c's petition for writ of certiorari challenging JCC's order......
  • v. Limith, CASE NO. 1D13-5357
    • United States
    • Court of Appeal of Florida (US)
    • June 9, 2014
    ...in denying the motion to dismiss. In fact, precedent from this court would indicate otherwise.* SeePage 3Orange Cnty. Sch. Bd. v. Perkins, 619 So. 2d 1, 2 n.1 (Fla. 1st DCA 1993) (explaining appellate court denied e/c's petition for writ of certiorari challenging JCC's order denying motion ......
  • Request a trial to view additional results

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