Woolworth's Restaurant v. Cubillos

PER CURIAM. In this workers’ compensation case, the employer/carrier (e/c) challenge an order of the Judge of Compensation Claims (JCC) finding claimant’s injuries compensable and awarding benefits and penalties. Competent substantial evidence supports com-pensability, and we affirm the JCC’s finding without further elaboration. However, the award of penalties must be reversed and remanded for further consideration in light of the following. Penalties should not be imposed where the e/c timely file a notice to controvert. § 440.20(6) and (7), Fla.Stat. (Supp. 1990); Glades General Hospital v. Sullenger, 584 So.2d 109 (Fla. 1st DCA 1991). Although the record in the instant case does not contain a notice to controvert, a portion of the JCC’s order states that “[t]his claim was totally controverted.” Because no explanation is offered, we must reverse the award of penalties and remand the case for clarification of the JCC’s order as we did in Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). On remand, the JCC should state explicitly whether the e/c sufficiently controverted the claim, or, if the claim was not timely controverted, whether e/c have a valid excuse for not doing so. AFFIRMED in part, REVERSED in part and REMANDED for reconsideration. MINER, ALLEN and KAHN, JJ., concur.