E. C. GOLDMAN ROOFING AND RISK MANAGEMENT SERVICES, INC., APPELLANTS,
v.
JAMES H. ROGERS, APPELLEE
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In this workers' compensation appeal, the Florida District Court of Appeal affirmed an award of wage loss benefits to an injured worker but reversed an award of attorney's fees, finding that none of the statutory criteria for awarding fees under Florida law were satisfied.
The court affirmed the wage loss benefits award, finding that appellants' challenge to the medical rating basis was not preserved for appeal because it was not raised before the deputy commissioner. The court reversed the attorney's fee award, holding that none of the statutory criteria under Section 440.34(2) were met since there were no findings of bad faith and the employer had admitted liability and paid some benefits.
[1] A contention not raised before the deputy commissioner is not preserved for appellate review.
[2] An attorney's fee is not awardable under Section 440.34(2)(b) Florida Statutes when an order contains no findings of bad faith.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This contention was not raised before the deputy commissioner, thus any error was not preserved for this court's review.”
Establishes that appellants' challenge to the medical rating basis failed because it was not preserved at the administrative level.
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Join FLexlaw to unlock all legal intelligenceClaimant James H. Rogers was injured and awarded wage loss benefits from January 1, 1981, through May 31, 1981. Dr. Webb provided a medical rating sup…
The full statement of facts, procedural history, and disposition for this case are member content.
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JOANOS, Judge.
Having considered the appellee’s motion for rehearing, we grant the motion and withdraw the decision and opinion filed June 11, 1982, substituting the following decision and opinion in lieu thereof.
This is an appeal from the deputy commissioner’s order awarding claimant wage loss benefits from January 1, 1981, through May 31, 1981, and an attorney’s fee. We affirm the award of wage loss benefits. Appellants contend that the rating assigned claimant by Dr. Webb is not a sufficient basis for the award of wage loss benefits because the rating was not based on the American Medical Association Guides to Evaluation of Permanent Impairment. This contention was not raised before the deputy commissioner, thus any error was not preserved for this court’s review. Sunland Hospital/State of Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982).
The deputy erred in awarding claimant an attorney’s fee. None of the statutory criteria for an award of fees is present in this case. Appellee contends the fee was properly awarded under either Section 440.-34(2)(b) or Section 440.34(2)(c). Section 440.34(2)(b) is clearly inapplicable since the order contains no findings of bad faith; in fact bad faith is not mentioned at all in the order. Neither does Section 440.34(2)(c) apply, under the circumstances of this case, in which TTD benefits were paid from November 14, 1980, up to the date of MMI. “[W]hen an employer/carrier admits an accident and pays some disability benefits but denies others are due, an attorney’s fee is not awardable under Section 440.34(2)(c) Florida Statutes (1979).” Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981), Walt Disney World Co. v. May, 397 So. 2d 1003 (Fla. 1st DCA 1981), Ardmore Farms v. Squires, 395 So. 2d 268 (Fla. 1st DCA 1981). Appellee cites Dolphin Tire Co. v. Ellison, 402 So. 2d 36 (Fla. 1st DCA 1981) in support of its argument, but Ellison involved a special situation which distinguishes it from the present case. See City of Miami v. Wright, 414 So. 2d 24 (Fla. 1st DCA 1982).
The award of wage loss benefits is AFFIRMED. The award of an attorney’s fee is REVERSED.
THOMPSON and WIGGINTON, JJ., concur.
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Tampa BAY Moving Sys., Inc. v. Frederick, 433 So. 2d 628 (Fla. 1st DCA 1983)…order became final, raise the issue now argued. We decline in these circumstances to measure the quality of the evidence against the prescribed standards when the issue is presented for the first time on appeal. E.C. Goldman Roofing Inc. v. Rogers, 418 So. 2d 426 (Fla. 1st DCA 1982). In this case, where there was presented no evidence that the doctor’s impairment rating was substantively incorrect under the Guides, and the E/C had ample opportunity to so prove or demonstrate by specific argument, the deputy…
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Wilhoit Int'l & Aetna Life & Cas. Co. v. Tidwell, 497 So. 2d 958 (Fla. 1st DCA 1986)…v. Hilbum, 472 So. 2d 1309 (Fla. 1st DCA 1985), but not when additional benefits are refused on account of one compensable injury. See Four Quarters [*962] Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981); E.C. Goldman Roofing v. Rogers, 418 So. 2d 426 (Fla. 1st DCA 1982); West Florida Hospital v. Washington, 418 So. 2d 1134 (Fla. 1st DCA 1982); Hillsbor-ough Co. School Board, supra. Here, the E/C accepted Tidwell’s back injury as compensable and paid him temporary benefits for four years; it sim…
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W. Fla. Hosp. & Ideal Mut. Ins. Co. v. Washington, 418 So. 2d 1134 (Fla. 1st DCA 1982)…l the date of maximum medical improvement. See Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981); City of Miami v. Wright, 414 So. 2d 24 (Fla. 1st DCA 1982); E. C. Goldman Roofing and Risk Management Services, Inc. v. Rogers, 418 So. 2d 426 (Fla. 1st DCA 1982). Wage loss is an incidental benefit, the denial of which does not constitute denial of a compensable injury for which the employer/carrier is liable. REVERSED. ROBERT P. SMITH, Jr., C. J., and ERVIN, J., concur.…
Authorities Cited
- Sunland Hospital/State OF Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982)
- Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981)
- Ardmore Farms, Inc. v. Squires, 395 So. 2d 268 (Fla. 1st DCA 1981)
- Dolphin Tire Co. & Sentry Ins. Co. v. Ellison, 402 So. 2d 36 (Fla. 1st DCA 1981)
- Walt Disney World Co. v. MAY, 397 So. 2d 1003 (Fla. 1st DCA 1981)
- Johnson v. Stanfill Drywall Serv., 414 So. 2d 24 (Fla. 1st DCA 1982)