VETERANS SEPTIC TANK SERVICE, AND AETNA INSURANCE COMPANY, APPELLANTS,
v.
CARL WALLACE, APPELLEE
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In this workers' compensation case, the First District Court of Appeal affirmed the deputy commissioner's findings that the claimant conducted a good faith work search and did not voluntarily limit employment, but reversed and remanded regarding the award of attorney's fees and the wage loss benefits award for technical deficiencies in how those issues were handled.
The Court affirmed the findings regarding good faith work search, voluntary employment limitation, and cost assessment. However, the Court reversed the attorney's fee award because the claimant's attorney never asserted bad faith at the hearing and the record lacked meaningful litigation on that issue, requiring a separate hearing on remand. The Court also reversed the wage loss benefits language that included 'and continuing,' requiring the deputy to substitute proper limiting language on remand.
[1] A deputy commissioner may not infer bad faith from general testimony; bad faith must be specifically litigated with factual evidence presented directly to that issue.
[2] A deputy commissioner must conduct a separate hearing on the question of entitlement to attorney's fees if bad faith was not meaningfully determined at the regular hearin…
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Join FLexlaw to unlock all legal intelligence“the deputy's order as to attorney's fees is reversed and remanded with directions to the deputy to conduct a separate hearing, necessitated by the failure to meaningfully determine entitlement to attorney's fees at the regular hearing, on the question of claimant's entitlement to attorney's fees”
Establishes that attorney's fees require meaningful litigation of bad faith as a separate issue with specific factual evidence, not mere inference from general testimony
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Join FLexlaw to unlock all legal intelligenceCarl Wallace, the claimant, sought wage loss benefits in a workers' compensation claim against his employer Veterans Septic Tank Service and carrier A…
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SHIVERS, Judge.
The employer/carrier appeal the order of the deputy commissioner awarding claimant wage loss benefits, costs, and directing the employer/carrier to pay claimant’s attorney a reasonable attorney’s fee.
We affirm as to the issues raised on appeal with respect to the deputy’s findings that claimant made a good faith and adequate work search, that claimant did not voluntarily limit his employment, and that costs of the proceedings should be taxed against the employer/carrier, since we find competent, substantial evidence in the record to support these findings.
We reverse and remand with directions as to the award of attorney’s fees and the decretal portion of the order awarding claimant wage loss benefits for the period August 1, 1982 to April 1, 1983 and continuing. We discuss only these latter two points.
Neither in the application for hearing nor at the hearing itself did claimant’s attorney assert that the carrier’s bad faith handling of the claim was the basis for his claim for attorney’s fees. Although this court has interpreted the language contained in section 440.34(3)(b), Florida Statutes (1980), as not requiring the deputy to conduct a completely separate hearing on the question of entitlement to attorney’s fees on the basis of bad faith, but only that the question of bad faith be specifically litigated as a separate issue with factual evidence presented going directly to that issue, Embry-Riddle Aeronautical U. v. Vestal, 399 So. 2d 1033, 1035 (Fla. 1st DCA 1981), this court has also held that the deputy may not infer from general testimony that bad faith exists, see, e.g., Closet Maid Corp. v. Wilson, 429 So. 2d 419, 421 (Fla. 1st DCA 1983); Jess Parrish Memorial Hospital v. Layer, 420 So. 2d 917 (Fla. 1st DCA 1982).
Here, the record is devoid of any forthright assertion of bad faith, or any meaningful litigation on that subject at the hearing before the deputy.
Accordingly, the deputy’s order as to attorney’s fees is reversed and remanded with directions to the deputy to conduct a separate hearing, necessitated by the failure to meaningfully determine entitlement to attorney’s fees at the regular hearing, on the question of claimant’s entitlement to attorney’s fees.
As to the decretal portion of the order awarding claimant wage loss benefits for the period August 1, 1982 to April 1, 1983, and continuing, we agree with the employer/carrier that the language “and continuing” is error, since by law wage loss benefits are a monthly benefit, section 440.-20(4), Florida Statutes (1980); with the employer/carrier having fourteen days from the date of receipt of the wage loss request to accept or reject the same. See Hattaways, Inc. v. Smith, 414 So. 2d 643 (Fla. 1st DCA 1982).
Upon remand, the deputy is therefore directed to strike the word “continuing” from the order on review, and substitute in lieu thereof, the language “so long as such benefits are proper” or “so long as claimant is entitled to such benefits.” See Deltona Corp. v. Morris, 418 So. 2d 1274, 1276 (Fla. 1st DCA 1982).
AFFIRMED in part, REVERSED in part and REMANDED with directions.
JOANOS and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Haas v. Seekell, 538 So. 2d 1333 (Fla. 1st DCA 1989)…g with factual evidence presented going directly to that issue. Charles Sales Corp. v. Filmare, 518 So. 2d 304 (Fla. 1st DCA 1987); Rivers v. SCA Services of Florida, Inc., 465 So. 2d 634 (Fla. 1st DCA 1985); Veterans Septic Tank Service v. Wallace, 445 So. 2d 389 (Fla. 1st DCA 1984). In the present case, entitlement to attorney’s fees based on bad faith was not specifically litigated as a separate issue at the hearing. Although claimant had made a claim for attorney’s fees from the outset, at no time did cla…
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Wiley Jackson Co. & Underwriters Adjusting Co. v. Webster, 522 So. 2d 987 (Fla. 1st DCA 1988)…these general principles, this court has recognized that an order awarding wage-loss benefits to be paid “to the date of hearing and continuing" is improper. Deltona Corporation, 418 So. 2d at 1276. See also Veterans Septic Tank Service v. Wallace, 445 So. 2d 389 (Fla. 1st DCA 1984) (holding that the language “and continuing” in the decretal portion of the order awarding claimant wage-loss benefits for the period August 1, 1982 to April 1, 1983, and continuing was error). We recognized in those cases, howeve…
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Rivers v. SCA Servs. OF Fla., Inc., 465 So. 2d 634 (Fla. 1st DCA 1985)…y that entitlement be specifically litigated as a separate issue with factual evidence presented going directly to that issue. The deputy may not infer bad faith, or lack of bad faith, from general testimony. Veterans Septic Tank Service v. Wallace, 445 So. 2d 389 (Fla. 1st DCA 1984); Embry-Riddle Aeronautical University v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981). Here, the issue was never separately litigated with factual evidence going directly to it. The fee denial must be reversed and remanded for fu…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Embry-Riddle Aeronautical Univ. & the Hartford Ins. Grp. v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981)
- Deltona Corp. & Home Indem. Co. v. Morris, 418 So. 2d 1274 (Fla. 1st DCA 1982)
- Closet Maid Corp. & Zurich-American Ins. Cos. v. Demetris Wilson, 429 So. 2d 419 (Fla. 1st DCA 1983)
- Woullard v. State, 420 So. 2d 917 (Fla. 1st DCA 1982)
- Hattaways, Inc. v. Smith, 414 So. 2d 643 (Fla. 1st DCA 1982)