Opinion
Case No. 96-947
Opinion filed November 22, 1996. Rehearing Denied January 7, 1997
An appeal from an order of the Judge of Compensation Claims. Jonathan D. Ohlman, Judge.
Valerie A. Marshall of Jack, Wyatt, Tolbert Thompson, P.A., Maitland, for Appellants.
Mark N. Tipton, Ocala, for Appellee.
Ocala Geriatric Center and Preferred Works, the employer and carrier, respectively (collectively the E/C), appeal a final workers' compensation order directing them to pay the 20 percent penalty required by section 440.20(7), Florida Statutes (Supp. 1994), for not timely paying a compensation award. At issue is whether the terms of the parties' stipulation, agreeing upon a lump sum payment to the claimant, and requiring the E/C to pay the same within 14 days from the date of the order approving the stipulation, controls over the provisions of Florida Workers' Compensation Rule of Procedure 4.030(c), authorizing an additional five days to the time allowed for the performance of any act required to be done following service. It is clear from the record that if the time set out in the rule applies, the penalty could not be lawfully imposed; whereas, if the parties' agreement governs, as the judge of compensation claims (JCC) decided, it could. We affirm.
On April 20, 1995, an order was entered approving the parties' stipulation and mailed on the same date. The evidence discloses that the E/C received the order on April 24, 1995, but that claimant's attorney did not receive the E/C's check until May 8, 1995, in an envelope that was postmarked May 5, 1995. The JCC directed the E/C to pay penalties, because the payment was mailed more than 14 days after the date of the order, and specifically rejected the E/C's argument that it was permitted an additional five days to make payment because the check had been mailed.
In workers' compensation cases, the date of mailing is the date of rendition or entry. See Fla. R. Workers Comp. P. 4.160(a)(2).
Rule 4.030(c) provides as follows:
When service is effectuated by mail, 5 days shall be added to the time allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service.
Thus, under the express terms of the rule, an additional five days is only added when performance is required to be done within a certain time of service.
In relying upon the language of the above rule, the E/C citesPalm Beach County School Board v. Miller-Neal, 674 So.2d 759 (Fla. 1st DCA 1996). In that case, the JCC approved a washout settlement agreement and the order was mailed to the parties on February 18, 1994. When the E/C did not pay the settlement within seven days, as required under section 440.20(7), claimant sought the 20 percent penalty. The E/C defended, asserting it had five additional days under rule 4.030(c), because the order had been mailed. In determining that the JCC's award of the 20 percent penalty was error, this court noted that the date the order is mailed to the parties determines the time frame for payment, and that payment is deemed made on the date the E/C mails the check.Id. at 760. Next, this court determined that rule 4.030(c) applied to service of orders mailed by the JCC. Therefore, the court concluded that the settlement became due under rule 4.030(c) on February 23, five days after it was mailed, and that the E/C timely mailed the settlement proceeds on March 2, which was within seven days of February 23.
We find that Miller-Neal is distinguishable from the case at bar, because the parties' agreement in that case provided that the 20 percent penalty would be assessed against payment not made within seven days "after it becomes due." Hence, Miller-Neal answered the question of when such orders become due under section 440.20(7). In the instant case, however, the parties explicitly stipulated that payment was due as of "the date of entry of the Order." Thus, the E/C was required, by the terms of the agreement, to pay the lump sum amount within 14 days from the entry of the order, not within 14 days from service of the order.
Case law in the civil sector construing rules with language similar to that contained in rule 4.030(c) furnish persuasive support for our decision. For example, Florida Rule of Appellate Procedure 9.420(d) provides:
If a party, court reporter, or clerk is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, 5 days shall be added to the prescribed period.
In its construction of this rule, the Second District concluded that it permits an additional five days only if the act is required to be completed after service of a document by mail, not if the act is directed to be accomplished after rendition or filing of an order or judgment, even though mailing of the document rendered or filed may have been involved. Bouchard v. Department of Business Reg., 448 So.2d 1126 (Fla. 2d DCA 1984).
Similarly, Florida Rule of Civil Procedure 1.090(e) provides:
When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.
In D'Best Laundromat, Inc. v. Janis, 508 So.2d 1325 (Fla. 3d DCA 1987), the Third District determined that the plaintiff was not entitled to five additional days in which to file an amended complaint, because the order directing the filing of the complaint ran, pursuant to its terms, from the date the order was signed.
Thus, the above cases construing the civil rules, while recognizing that the rules allow the addition of five days for mailing, hold that the terms of the order control if those terms provide otherwise. Because the rule 4.030(c) is similarly worded, we agree with claimant that the stipulation, by its terms, precludes the addition of five days, in that payment was specified to be made within 14 days from the entry of the order.
AFFIRMED.
ERVIN and DAVIS, JJ., CONCUR. BENTON, J., DISSENTS WITH WRITTEN OPINION.
The court today affirms a decision arrived at by application — in a factually flawed fashion — of a recently repudiated rule. In requiring payment of $19,700 as a penalty for failure to transmit a settlement check promptly, the judge of compensation claims reasoned:
The time limit for mailing payment in this case without incurring a penalty is seven days after the Order [approving joint petition for lump sum settlement] is mailed, pursuant to Bell v. University of Florida, 652 So.2d 460 (Fla. 1st DCA 1995). Based on the testimony of Ms. Hamer, I find that the check was not mailed within the applicable time limit of seven days.
8. I further reject the Employer/Carrier's argument that there existed an additional five day period for mailing the check in addition to the allowable seven day period. I base this finding on the reasoning in Bell . . . .
The factual flaw was the failure to consider the parties' express agreement — duly incorporated in an order — to allow fourteen days, instead of the seven days otherwise specified by section 440.20(7), Florida Statutes (1995). The repudiated rule is "the reasoning in Bell."
We have explicitly rejected the approach we sanctioned inBell. There, as the judge of compensation claims in the present case observed, we did not allow five days for mailing of an order approving settlement. But, in a subsequent penalty dispute case arising out of a washout settlement, we "conclude[d] that payment to the claimant . . . `became due' . . . five days after the order approving the washout agreement was mailed to the parties," Palm Beach County Sch. Bd. v. Miller-Neal, 674 So.2d 759, 760 (Fla. 1st DCA 1996), and that the statute allowed an additional seven days, for a total of twelve. While the Miller-Neal court did not expressly overrule Bell (or Sigg v. Sears, Roebuck Co., 594 So.2d 329 (Fla. 1st DCA 1992), the Miller-Neal decision clearly has that effect, insofar as it interprets Florida Rule of Workers' Compensation Procedure 4.030(c) to allow five days for mailing of the order before compensation "becomes due."
The parties' settlement agreement, a stipulation which was adopted by the judge of compensation claims, provided:
WAIVER OF PENALTIES, INTEREST AND FORMAL NOTICE — The Claimant does hereby waive any right she may have to any and all penalties or interest on account of the accident or occupational disease referenced herein and expressly agrees that the Employer-Carrier will have fourteen days (14) from the date of the entry of the Order approving this Joint Stipulation and Joint Petition to make payment without incurring penalties and/or interest notwithstanding the time limitations set forth in Section 440.20(11)[sic][,] Florida Statute[s] ([Supp.] 1994). The Parties may present this Joint Stipulation to the Judge for consideration and approval without the necessity of a formal notice which requirement is hereby expressly waived.
The judge of compensation claims made no mention of the agreement or of the order incorporating it, in this regard.
Instead of remanding so the judge of compensation claims can consider this language — after making the necessary findings of fact — under case law superseding Bell, the majority construes the waiver of penalties provision — not to "waive any right . . . to any and all penalties" — but to extend the deadline two days (from twelve days after mailing to fourteen days after mailing); and concludes that a penalty is due because — it asserts — payment was not made until the fifteenth day after mailing.
No settlement which, like this one, terminates a claimant's rights to future benefits, can take effect unless approved by order entered by a judge of compensation claims. § 440.20(11) and (12), Fla. Stat. (1995). Under Miller-Neal, the order approving joint petition for lump sum settlement only became effective five days after mailing. The majority concedes that payment was made no later than ten days thereafter. Miller-Neal, 674 So.2d at 760 ("payment is deemed made on the date the E/C mails the check");Clay Hyder Truck Lines v. Atherton, 400 So.2d 1295, 1296 (Fla. 1st DCA 1981)("date of mailng . . . [is] considered in law to be the payment date").
The order under review should be reversed, and the case should be remanded to the judge of compensation claims for reconsideration, in light of our decision in Miller-Neal and the waiver of penalties incorporated in the parties' agreement and duly adopted by the order that required payment.