Orange County School Bd. v. Perkins

• Citation: 619 So.2d 1
• Decision Date: 05 April 1993
• Docket Number: No. 92-832,92-832
• Court: Court of Appeal of Florida (US)
• Parties: 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.

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 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 again the finding of the undersigned Judge of Compensation Claims, that the employer/carrier's motion to dismiss is denied. Not only was there a filing of pleadings within the one year period, but, also it is clear there was non-recorded [sic] activity occurring, pertaining to the outstanding issue of additional medical care for claimant, within the one year period.

In Anthony v. Collier County School Board, 420 So.2d 895 (Fla. 1st DCA 1982), we held that the mailing of a claim acknowledgment letter by the Division of Workers' Compensation is not action within the meaning of former Rule 11(b), Florida Workers' Compensation Rules of Procedure. Likewise, in the present case, the transmittal letter may not be said to be the type of activity contemplated by Rule 4.110(b). ³ The transmittal letter, which sent the file back to Tallahassee, certainly did nothing to move the matter toward a resolution.

We next consider whether the JCC's finding that there was nonrecord activity pertaining to the issue of claimant's medical care is supported by competent substantial evidence, and is sufficient to uphold the JCC's refusal to dismiss the case. We first note that the JCC's mention of letters written March 27, 1989 and September 14, 1989 is irrelevant, since these letters predate the one-year period leading up to the E/SA's motion to dismiss. We focus, therefore, upon the November 8, 1989 letter from the E/SA to claimant's attorney, and the November 14, 1989 letter from the attorney to the claimant.

In Jerry Chapman, Inc. v. Ivey, 448 So.2d 11 (Fla. 1st DCA 1984), this court held in a 2-1 decision that negotiation between counsel concerning a fee did not constitute action within the meaning of former Rule 11(b). Upon close consideration, we now recede from Jerry Chapman, Inc.

In her dissent in Jerry Chapman, Inc., supra, Judge Wentworth compared the text of former Rule 11(b) with its counterpart in the Florida Rules of Civil Procedure, Rule 1.420(e). Rule 11(b), now Rule 4.110(b), requires dismissal where "no action has been taken by request for hearing, filing of pleadings, order of judge of compensation claims, payment of compensation, provision of medical care, or otherwise for a period of one year" (e.s.).

Rule 1.420(e), Florida Rules of Civil Procedure, provides:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed.... (e.s.)

Thus, in the context of...