WEST FLORIDA HOSPITAL AND IDEAL MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
CATHERINE R. WASHINGTON, APPELLEE
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The appellate court reversed a deputy commissioner's award of attorney's fees, holding that the employer/carrier's denial of wage loss benefits, while accepting the injury as compensable, did not meet the statutory threshold for awarding fees when the major part of the claim is contested.
No, the denial of wage loss benefits, which are considered incidental to a compensable injury, does not constitute the "major part of the claim" being contested for the purpose of awarding attorney's fees under section 440.34(2)(c) when the injury itself is not denied.
[1] An employer/carrier is not required to pay attorney's fees under section 440.34(2)(c), Florida Statutes, when the major part of the claim is contested and the claimant pr…
[2] Denial of wage loss benefits, where the employer/carrier accepts the injury as compensable, does not constitute a denial of a compensable injury for which attorney's fees…
Previewing 2 of 4 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“Dolphin Tire construed the controversion of the catastrophic loss claim as a denial of an injury for which compensation benefits were payable, not as the denial of attendant benefits to a compensable injury.”
Explains the distinction between denying the injury itself versus denying attendant benefits.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe employer/carrier paid temporary total disability benefits but contested the claimant's entitlement to wage loss benefits. A deputy commissioner aw…
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SHAW, Judge.
The appellants claim that the deputy commissioner has misconstrued Dolphin Tire Co. v. Ellison, 402 So. 2d 36 (Fla. 1st DCA 1981), as requiring the employer/carrier to pay attorney’s fees under section 440.-34(2)(c), Florida Statutes (1979), when “the major part of the claim is contested and the claimant prevails.” We agree with appellants and reverse. In Dolphin Tire fees were awarded because the carrier denied that the claimant suffered a compensable catastrophic injury as defined by section 440.15(2)(b), Florida Statutes (1979), and the claimant prevailed in obtaining compensable benefits. Dolphin Tire construed the controversion of the catastrophic loss claim as a denial of an injury for which compensation benefits were payable, not as the denial of attendant benefits to a compensable injury.
The claimant urges, under the rationale of Dolphin Tire, supra, that an attorney’s fee is sustainable where the carrier accepts the injury as compensable but denies that there has been a wage loss. On the contrary, the case cautions against a construction that would authorize an attorney’s fee “where the only issue is over the average weekly wage or some other incidental benefit where the carrier does not deny that an injury occurred for which benefits are payable and the claimant is not forced to prove his injury and entitlement to compensation.” Id. at 37.
The fact that some benefits were denied does not justify an attorney’s fee award under section 440.-34(2)(c), especially where, as here, the employer/carrier paid temporary total disability benefits until 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.
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Citator
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Wilhoit Int'l & Aetna Life & Cas. Co. v. Tidwell, 497 So. 2d 958 (Fla. 1st DCA 1986)…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 simply denied his claim for further benefits based on that original compensab…
Authorities Cited
- Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981)
- Dolphin Tire Co. & Sentry Ins. Co. v. Ellison, 402 So. 2d 36 (Fla. 1st DCA 1981)
- Johnson v. Stanfill Drywall Serv., 414 So. 2d 24 (Fla. 1st DCA 1982)
- E. C. Goldman Roofing & Risk Mgmt. Servs., Inc. v. Rogers, 418 So. 2d 426 (Fla. 1st DCA 1982)