CITY OF COCOA AND CONTINENTAL INSURANCE COMPANY, APPELLANTS,
v.
RUBY L. ADAMS, APPELLEE
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In this workers' compensation appeal, the employer/carrier challenged a deputy commissioner's award of temporary total disability benefits, wage loss benefits, and attorney's fees based on a finding of bad faith. The First District Court of Appeal reversed the TTD and wage loss awards but struck the bad faith finding for lack of proper litigation.
The court reversed the awards of TTD benefits for the entire period and wage loss benefits based on total wage loss, finding the medical evidence showed the claimant was not totally disabled and she made no work search until after February 1981. The court struck the bad faith finding because the issue was not separately and specifically litigated with factual evidence presented directly on that issue. On remand, the deputy should determine entitlement to temporary partial disability and reconsider wage loss benefits under the voluntary limitation of income provisions.
[1] An award of temporary total disability benefits is erroneous when medical evidence shows the claimant was not totally disabled.
[2] Wage loss benefits are improperly awarded for periods of total wage loss subsequent to maximum medical improvement but prior to the claimant actively seeking appropriate…
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Join FLexlaw to unlock all legal intelligence“Because the medical evidence showed that the claimant was not totally disabled, and because the claimant admitted that she made no work search until sometime after February 19, 1981, the award of TTD benefits for the entire period from the date of the accident to the date of MMI was erroneous, and is reversed.”
Establishes the basis for reversing the temporary total disability award—lack of total disability and claimant's failure to seek work.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA 33-year-old garbage collector suffered a compensable back injury on March 20, 1980. Her treating family physician, Dr. Appen, found no objective sig…
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THOMPSON, Judge.
The employer/carrier (E/C) appeal a workers’ compensation order, contending, inter alia, that the deputy commissioner (deputy) erred in awarding temporary total disability (TTD) benefits and wage loss benefits, and in finding that the E/C exhibited bad faith in its handling of the claim, and was therefore obligated to pay claimant’s attorney’s fees pursuant to § 440.34(3)(b), Fla.Stat. We agree and reverse as to these issues, but we conclude that the E/C’s remaining contentions are without merit.
The claimant is a 33-year-old woman who sustained a compensable back injury on March 20, 1980, while working as a garbage collector for the employer. She sought treatment from Dr. Appen, a family practitioner who saw her on three occasions after the accident. Dr. Appen found no objective signs of injury, and he released claimant as having reached maximum medical improvement (MMI) and as being able to return to work as of April 7, 1980.
However, Dr. Appen recommended to the employer that claimant be given a new job assignment, since he was of the opinion that she would be unable to continue to perform the heavy lifting tasks of a garbage collector without re-injuring her back. The employer thereafter offered claimant less strenuous work as a groundskeeper, but claimant refused to accept the position and her employment was then terminated. On August 14, 1980 claimant sought treatment from Dr. Maxwell, an orthopedic surgeon. Dr. Maxwell diagnosed chronic lumbar sprain superimposed upon congenital scoliosis, and prescribed a course of physical therapy.
On November 14, 1980; Dr. Maxwell discharged claimant as having reached MMI with a 25% permanent impairment of the body as a whole. Dr. Maxwell placed restrictions on claimant’s activities with respect to heavy lifting, repetitive bending, and working from ladders or scaffolds. Dr. Maxwell testified that during the period when he was treating the claimant she was disabled from performing strenuous manual labor, but that she was capable of performing work of a light and sedentary nature. Because the medical evidence showed that the claimant was not totally disabled, and because the claimant admitted that she made no work search until sometime after February 19, 1981, the award of TTD benefits for the entire period from the date of the accident to the date of MMI was erroneous, and is reversed. Similarly, the award of wage loss benefits must be reversed insofar as it requires payment of benefits based on total wage loss for the period subsequent to MMI but prior to the date claimant began actively seeking appropriate employment. On remand, the deputy should determine whether claimant is entitled to temporary partial disability benefits, and should reconsider claimant’s entitlement to wage loss benefits.
With respect to these determinations, the deputy should consider the provisions of § 440.-15(3)(b)2 and § 440.15(4)(b), Fla.Stat., relating to voluntary limitation of income by a claimant. Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981); Duro Paperbag Mfg. Co. v. Graham, 415 So. 2d 809 (Fla. 1st DCA 1982).
In his order, the deputy found that the E/C had “committed bad faith in the handling of this case, under § 440.34(2)(b) of the Florida Statutes ... ”, and based on this finding reserved jurisdiction to award attorney’s fees. This finding was premature. Although we have previously held that a deputy need not in all cases hold an entirely separate hearing on the question of bad faith, Embry-Riddle Aeronautical University v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981), both the statute and our prior rulings on the issue make it abundantly clear that a deputy cannot decide the issue of bad faith unless the issue is separately and specifically litigated and unless factual evidence is presented which goes directly to the issue. Embry-Riddle, supra; Silver Springs, Inc. v. Scardo, 408 So. 2d 844 (Fla. 1st DCA 1982).
The record in this case reveals that the issue of bad faith on the part of the E/C was not specifically litigated, and, accordingly, we strike that portion of the order finding bad faith.
AFFIRMED in part, REVERSED in part and REMANDED.
MILLS and BOOTH, JJ., concur.
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Publix Supermarkets, Inc. v. Franklin, 467 So. 2d 1031 (Fla. 1st DCA 1985)…the employee is able to earn ... shall be deemed to be the amount which would have been earned if the employee did not limit his or her in-come_” (e.s.)3 Leffler v. Grand Union, 409 So. 2d 1145 (Fla. 1st DCA 1982). See also City of Cocoa v. Adams, 419 So. 2d 720 (Fla. 1st DCA 1982); Vida Appliances, Inc. v. Gates, 416 So. 2d 1186 (Fla. 1st DCA 1982); Pompano Roofing Co. v. O’Neal, 410 So. 2d 971 (Fla. 1st DCA 1982). The deputy found that (1) two physicians restricted claimant to light duty jobs not requiri…
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Anderson v. S & S Diversified, Inc., 477 So. 2d 591 (Fla. 1st DCA 1985)…is able to earn ... shall be deemed to be the amount which would have been earned if the employee did not limit his or her income ...” (emphasis supplied) Leffler v. Grand Union, 409 So. 2d 1145 (Fla. 1st DCA 1982). See also City of Cocoa v. Adams, 419 So. 2d 720 (Fla. 1st DCA 1982); Vida Appliances, Inc. v. Gates, 416 So. 2d 1186 (Fla. 1st DCA 1982); [*594] Pompano Roofing Co. v. O’Neal, 410 So. 2d 971 (Fla. 1st DCA 1982). The deputy improperly rejected the statutory formula for the two months when he foun…
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Hillsborough Cnty. Emps. Credit Union & Cumis Ins. Co. v. Tamargo, 477 So. 2d 652 (Fla. 1st DCA 1985)…mployee did not limit his income, (emphasis supplied) Section 440.15(3)(b)2, P.S. Anderson v. S & S Diversified, 477 So. 2d 591 (Fla. 1st DCA 1985); Publix Supermarkets, Inc. v. Franklin, 467 So. 2d 1031 (Fla. 1st DCA 1985); City of Cocoa v. Adams, 419 So. 2d 720 (Fla. 1st DCA 1982); Vida Appliances, Inc. v. Gates, 416 So. 2d 1186 (Fla. 1st DCA 1982); Leffler v. Grand Union, 409 So. 2d 1145 (Fla. 1st DCA 1982). Appellants’ contention that absence of work search per se precludes wage loss benefits in all circ…
Authorities Cited
- Tallahassee Coca Cola Bottling Co. & Hartford Ins. Co. v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981)
- Embry-Riddle Aeronautical Univ. & the Hartford Ins. Grp. v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981)
- Silver Springs, Inc. v. Candy Scardo, 408 So. 2d 844 (Fla. 1st DCA 1982)
- Duro Paperbag MFG. Co. & Transamerica Ins. Co. v. Ruther Graham, 415 So. 2d 809 (Fla. 1st DCA 1982)