All American Vending v. Kunzelman

THOMPSON, Judge. Employer/carrier. (E/C) appeal a workers’ compensation order finding appellee to have been an employee rather than an independent contractor at the time of his death and awarding compensation, funeral expenses and interest. Because the finding is supported by competent substantial evidence, we affirm. On cross-appeal, appellee urges that the deputy commissioner (deputy) erred in failing to award penalties as the (E/C) failed to controvert the claim for benefits and did not demonstrate that their nonpayment was the result of conditions beyond their control. The final order found that the E/C was given proper notice of Kunzel-man’s death but specifically did not award penalties. The E/C bear the burden of proving that penalties are not due. Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). Here the E/C did not show why a notice to controvert was not filed and presented no evidence concerning their failure to pay death benefits. Therefore the deputy erred in failing to award penalties. Sears, Roebuck and Co. v. Viera, 440 So.2d 49 (Fla. 1st DCA 1983). The portion of the order declining to award penalties is reversed. Upon remand the deputy shall impose penalties as provided by statute. 440.20(7), Fla.Stat. (1983). In all other respects, the order is affirmed. ZEHMER and BARFIELD, JJ., concur.