MITCHELL B. BAILEY, APPELLANT,
v.
HAWES CHRYSLER-PLYMOUTH AND LYNN UNDERWRITING COMPANY, APPELLEES
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In this workers' compensation appeal, the Florida District Court of Appeal reversed a deputy commissioner's compensation order on the issue of temporary partial disability (TPD) benefits, finding the deputy failed to rule on the TPD claim despite addressing related disability claims. The court also reversed on the attorney's fee issue where both parties agreed such a fee was warranted, though it upheld the denial of rehabilitation services.
The court held that the deputy erred in failing to rule on the TPD claim and reversed that decision. The court upheld the denial of rehabilitation services because the claimant failed to apply for a rehabilitation evaluation with the Division of Workers' Compensation as required by statute. The court reversed the denial of attorney's fees because both parties agreed the attorney was entitled to a reasonable fee, and remanded for the deputy to determine the appropriate amount.
[1] A deputy commissioner errs by failing to rule on a claimant's temporary partial disability claim.
[2] An appellate court will not assume a scrivener's error regarding a denial of benefits when the employer/carrier failed to seek correction from the deputy commissioner bef…
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Join FLexlaw to unlock all legal intelligence“If the E/C were of that opinion, they should have requested the deputy to make that correction before the compensation order became final. This court cannot make that assumption on appeal. The issue of TPD was ripe and should have been decided by the deputy.”
Establishes that the court cannot infer that a denial of one benefit type constitutes a ruling on another benefit type; the deputy was required to explicitly address the TPD claim.
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Join FLexlaw to unlock all legal intelligenceBailey, a claimant in a workers' compensation case, sought temporary partial disability benefits, permanent partial disability benefits, rehabilitatio…
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THOMPSON, Judge.
The claimant appeals a compensation order, contending that the deputy commissioner (the deputy) erred in failing to rule on his claim for temporary partial disability (TPD), in failing to award rehabilitation services, and in failing to award a fee to his attorney. We agree the deputy erred in failing to rule on the TPD claim and reverse on that issue.
The deputy’s order awarded additional medical benefits but denied temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, reha bilitation services, and a fee to claimant’s attorney. .The employer/carrier (E/C) contend that the denial of PPD benefits was merely a scrivener’s error, that the intended reference was to TPD benefits, and therefore the deputy did rule on and deny TPD benefits. If the E/C were of that opinion, they should have requested the deputy to make that correction before the compensation order became final. This court cannot make that assumption on appeal. The issue of TPD was ripe and should have been decided by the deputy.
The deputy did not err by denying rehabilitation services to the claimant. Section 440.49, Fla.Stat. provides that where an employer does not voluntarily offer rehabilitation services, the employee must apply to the Division of Workers’ Compensation for a rehabilitation evaluation before seeking an award of such services from the deputy. The claimant has not applied for a rehabilitation evaluation and his claim for these services was properly denied by the deputy.
The deputy correctly determined that claimant’s attorney was not entitled to a fee for his recovery of additional medical benefits. Section 440.34(2)(a), Fla.Stat. (1979) provides that the claimant can recover a reasonable attorney’s fee from a carrier or employer against whom he has successfully asserted a claim for medical benefits only, if the claimant has not filed or is not entitled to file a claim for disability or certain other benefits. Here, the claimant filed a claim for disability in addition to the claim for medical benefits and § 440.-34(2)(a) is not applicable. However, both parties agree that claimant’s attorney is entitled to a reasonable fee, and for that reason only we reverse and remand on this issue for the deputy to award claimant’s attorney a reasonable fee.
Reversed and remanded for further proceedings consistent with this opinion.
MILLS and WENTWORTH, JJ., concur.
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The Exceptional Child's. Home & Nursery, Inc. v. Fortuna, 414 So. 2d 1130 (Fla. 1st DCA 1982)…efits were due from September 4, 1979 to date. Although the record indicates these benefits were paid, this claim was never withdrawn. Thus, claimant is not entitled to an attorney’s fee under Section 440.34(2)(a). Bailey v. Hawes Chrysler-Plymouth, 410 So. 2d 986 (Fla. 1st DCA 1982). Although there is some confusion as to the extent of the claimant’s reliance upon the bad faith provision, the carrier argued on appeal that the deputy’s order impliedly found the carrier guilty of bad faith in each of the four…
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Paradise Fruit Co. & Mission Ins. Co. v. Floyd, 425 So. 2d 9 (Fla. 1st DCA 1982)…ion 440.49, Florida Statutes (1979), requires that an application for such services be made to the Division of Workers’ Compensation for an evaluation before an award of such services can be sought from the deputy. Bailey v. Hawes Chrysler-Plymouth, 410 So. 2d 986 (Fla. 1st DCA 1982). We do, however, find competent substantial evidence in the record to support the deputy’s finding that the claimant’s hospitalization for a rash was emergency in nature. Accordingly, the order of the deputy commissioner is AFF…
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C & H Constr. & Aetna Ins. Co. v. Leyman, 453 So. 2d 1163 (Fla. 1st DCA 1984)…unds that the claimant did not first apply to the Division of Workers’ Compensation for evaluation before embarking on a rehabilitation program. The legal predicate for the appeal is that two cases from this court, Bailey v. Hawes Chrysler-Plymouth, 410 So. 2d 986 (Fla. 1st DCA 1982) and Paradise Fruit [*1164] Company v. Floyd, 425 So. 2d 9 (Fla. 1st DCA 1982) conflict with Walker v. New Fern Restorium, 409 So. 2d 1201 (Fla. 1st DCA 1982) and Hurricane Fence Industries v. Bozman, 413 So. 2d 822 (Fla. 1st DCA…
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