Russell Corp. v. Brooks, No. 96-3265

CourtCourt of Appeal of Florida (US)
Writing for the CourtBENTON; KAHN; ERVIN; ERVIN
Citation698 So.2d 1334
Parties22 Fla. L. Weekly D2153 RUSSELL CORPORATION and Thomas Howell Group/GAB Robbins, Appellants, v. Kelley A. BROOKS, Appellee.
Docket NumberNo. 96-3265
Decision Date12 September 1997

Page 1334

698 So.2d 1334
22 Fla. L. Weekly D2153
RUSSELL CORPORATION and Thomas Howell Group/GAB Robbins, Appellants,
v.
Kelley A. BROOKS, Appellee.
No. 96-3265.
District Court of Appeal of Florida,
First District.
Sept. 12, 1997.

Mary E. Cruickshank and Patrick E. Weaver of McConnaughhay, Maida & Cherr, Tallahassee, and Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, Tallahassee, for appellants.

T. Rhett Smith of Kinsey, Troxel, Johnson and Walborsky, P.A., Pensacola, for appellee.

Page 1335

BENTON, Judge.

Because neither Russell Corporation (the employer) nor Thomas Howell Group/GAB Robbins (the employer's insurance carrier) filed a notice of denial after receiving Kelley Brooks' petition for benefits, the judge of compensation claims awarded her temporary total disability benefits, wage loss benefits, a penalty on past due indemnity benefits, medical expenses incurred for the treatment of her injury, interest on all past due benefits awarded, costs, and attorney's fees. In entering this compensation order, the judge of compensation claims relied on Waffle House v. Hutchinson, 673 So.2d 883 (Fla. 1st DCA 1996), review denied, 683 So.2d 486 (Fla.1996), which we have since repudiated, originally in North River Insurance Company v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996). *

On the authority of Wuelling, we reverse the order under review, and remand for consideration of the merits of Ms. Brooks' claim. The carrier's failure to file a notice of denial with the division in response to a petition for benefits sent by certified mail violated section 440.192(8), Florida Statutes (Supp.1994), inasmuch as neither appellant paid the benefits the claimant requested. The carrier did not invoke the "pay and investigate" provisions of section 440.20(4), Florida Statutes (Supp.1994), nor was the claim accepted. But, as explained in Wuelling, the penalties for failing to file a notice of denial do not include forfeiture of the appellants' right to contest compensability. See Wuelling, 683 So.2d at 1092 n. 1 (describing penalties that may be imposed).

In practical effect, the appellants' failure to respond to the petition for benefits in the present case operated not as an admission of compensability but as a denial of every allegation in the petition for benefits. Appellants' failure to act within fourteen days did not alter the timetable either for giving notice of a mediation conference or for actually holding the conference; both deadlines depend on when the petition for benefits is filed, not when or whether a notice of denial is filed. § 440.25(1), Fla. Stat. (Supp.1994).

If mediation does not succeed, the judge of compensation claims must hold a pretrial hearing and, if necessary, a final hearing. § 440.25(4), Fla. Stat. (1995). By ordering the parties to enter into a prehearing stipulation, the judge of compensation claims can require issues to be narrowed well before the merits hearing, notwithstanding the absence of a notice of denial. Appellants' position is procedurally equivalent to that of an employer or carrier who timely denies a petition for all benefits requested, willing to take its chances at mediation and, that failing, litigation with all its attendant risks.

Reversed and remanded.

KAHN, J., concurs.

ERVIN, J., concurs with opinion.

ERVIN, Judge, concurring.

In Waffle House v. Hutchinson, 673 So.2d 883 (Fla. 1st DCA), review denied, 683 So.2d 486 (Fla.1996), we interpreted section 440.192(8), Florida Statutes (Supp.1994), to mean that an insurance carrier which fails to do anything after the lapse of 14 days from the service of a petition for...

To continue reading

Request your trial
17 practice notes
  • Begley's Cleaning Service v. Costa, No. 1D04-4087.
    • United States
    • United States State Supreme Court of Florida
    • November 10, 2005
    ...nothing in response to a request for benefits, the E/C have denied the claim. See Bussey, 867 So.2d at 545-46; Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA 1997). In those cases, "an E/C which neither denies a petition for benefits within 14 days of receipt nor elects to pay ......
  • Heflin v. G.R. Hammonds Roofing, Inc., No. COA08-1309.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 8, 2009
    ...An employer who fails to initiate payments or respond to the petition is deemed to have denied the claim. Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla.Dist.Ct.App.1997). An employer who denies a workers' compensation claim is estopped from raising the exclusivity of the workers' compe......
  • Alachua County Bd. of County Com'rs v. Starling, No. 96-4269
    • United States
    • Court of Appeal of Florida (US)
    • September 18, 1997
    ...to contest compensability. See Wuelling, 683 So.2d at 1092 n. 1 (describing penalties that are available)." Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA 1997). Because the JCC based his decision only on the procedural default, we reverse and remand for further proceedings con......
  • Allen v. Tyrone Square 6 AMC Theaters, No. 98-1017.
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 1999
    ...with the division." Hendry County Sch. Bd. v. Mitchell, 716 So.2d 814, 815 (Fla. 1st DCA 1998). We held in Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA In practical effect, the appellants' failure to respond to the petition for benefits... [within fourteen days] operated not ......
  • Request a trial to view additional results
17 cases
  • Begley's Cleaning Service v. Costa, No. 1D04-4087.
    • United States
    • United States State Supreme Court of Florida
    • November 10, 2005
    ...nothing in response to a request for benefits, the E/C have denied the claim. See Bussey, 867 So.2d at 545-46; Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA 1997). In those cases, "an E/C which neither denies a petition for benefits within 14 days of receipt nor elects to pay ......
  • Heflin v. G.R. Hammonds Roofing, Inc., No. COA08-1309.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 8, 2009
    ...An employer who fails to initiate payments or respond to the petition is deemed to have denied the claim. Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla.Dist.Ct.App.1997). An employer who denies a workers' compensation claim is estopped from raising the exclusivity of the workers' compe......
  • Alachua County Bd. of County Com'rs v. Starling, No. 96-4269
    • United States
    • Court of Appeal of Florida (US)
    • September 18, 1997
    ...to contest compensability. See Wuelling, 683 So.2d at 1092 n. 1 (describing penalties that are available)." Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA 1997). Because the JCC based his decision only on the procedural default, we reverse and remand for further proceedings con......
  • Allen v. Tyrone Square 6 AMC Theaters, No. 98-1017.
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 1999
    ...with the division." Hendry County Sch. Bd. v. Mitchell, 716 So.2d 814, 815 (Fla. 1st DCA 1998). We held in Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA In practical effect, the appellants' failure to respond to the petition for benefits... [within fourteen days] operated not ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT