Opinion
No. BM-428.
April 30, 1987.
Appeal from the Department of Labor and Employment Security.
Carolyn Cummings, Dept. of Labor Employment Sec., for appellant.
Thomas J. Maida and Michael G. Maida, of Karl, McConnaughhay, Toland, Maida Beal, Tallahassee, for appellee.
The Department of Labor and Employment Security, Division of Workers' Compensation (hereinafter Division), appeals an administrative order by which Fla. Admin. Code Rule 38F-24.13 was invalidated as an improper exercise of delegated authority. We find that the hearing officer erred in this determination, and we reverse the order appealed.
Appellee Mission Insurance Company was assessed a $100 penalty for late filing of a progress report on a workers' compensation claim. By Fla. Admin. Code Rule 38F-3.16 the Division prescribed the time within which such reports are to be filed, in accordance with section 440.185(5), Florida Statutes, which provides that carriers shall file reports "at such times and in such manner as the division may prescribe." Appellee's penalty was assessed pursuant to Rule 38F-24.13, which states that:
Any carrier which fails to timely send any forms, reports or notice required by statute or the rules . . . shall be subject to a civil penalty of up to $100 for each such failure.
The hearing officer determined that in enacting this rule the Division exceeded its delegated authority under section 440.185(9), Florida Statutes. This enactment, as then effective, provided that:
Section 440.185(9) was amended in 1986 so as to now expressly authorize a penalty for failure to timely file required reports. We find this amendment to be a clarification and expression of prior intent. Compare e.g., Lowry v. Parole Probation Commission, 473 So.2d 1248 (Fla. 1985).
Any employee or carrier who fails or refuses to send any form, report, or notice required by this section shall be subject to a civil penalty not to exceed $100 for each such failure or refusal. . . .
The hearing officer concluded that a failure to file under section 440.185(9) does not include untimely filing as addressed by Rule 38F-24.13. However, the Division's interpretation is a permissible construction of section 440.185(9) in context with section 440.185(5), allowing the assessment of a penalty upon a failure to file required reports at such times and in such manner as the Division prescribes. Rule 38F-24.13 comports with this interpretation of the statutes, and in enacting the rule the Division has therefore not exceeded its delegated authority.
The order appealed is reversed.
WIGGINTON and NIMMONS, JJ., concur.