SHOP & GO, INC., D/B/A CIRCLE-K AND GALLAGHER BASSETT SERVICES, APPELLANTS,
v.
LISA COPELAND, APPELLEE
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In this workers' compensation appeal, the Florida First District Court of Appeal affirmed awards of temporary partial disability and medical benefits to an injured employee, but reversed the award of attorney's fees due to the failure to hold a separate hearing on the bad faith issue as required by statute.
The court affirmed the awards of temporary partial disability benefits (rather than temporary total disability) and medical benefits, finding no error because the employer and carrier failed to advise the claimant of her job search requirement, which excused her non-compliance. However, the court reversed the attorney's fees award because Florida law explicitly requires a separate fact-finding proceeding on the bad faith issue.
[1] An employer's failure to advise a claimant of their entitlement to workers' compensation benefits and their responsibility to conduct a good faith job search excuses the…
[2] Temporary partial disability benefits may be awarded for total wage loss during periods of unemployment when the employer fails to inform the claimant of their rights and…
Previewing 2 of 5 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“we find no error in the award of temporary wage loss benefits during this entire period, however, because neither the employer nor the carrier advised claimant of her entitlement to workers' compensation benefits and her responsibility to conduct a good faith job search.”
Establishes that failure to advise the claimant of job search requirements excused non-compliance and supported the wage loss benefits award
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLisa Copeland suffered a compensable industrial accident while working for Shop & Go, Inc. Following the accident, she obtained and left several jobs …
The full statement of facts, procedural history, and disposition for this case are member content.
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ZEHMER, Judge.
The employer, Shop & Go, Inc., and its carrier, Gallagher Bassett Services, appeal a workers’ compensation order awarding the claimant, Lisa Copeland, temporary total disability benefits, temporary partial disability benefits, medical benefits, and attorney’s fees. Except for the award of attorney's fees, we affirm the order in its entirety. Only two of appellant’s five points on appeal warrant discussion.
The employer and carrier contend that the award of temporary total disability benefits for the periods during which claimant was unemployed following the industrial accident was error because the claimant was not incapable of performing any work for remuneration and, in fact, left jobs she acquired after the accident for reasons unrelated to her compensable injury.
We agree that the deputy commissioner mis-characterized the benefits to which claimant was entitled during this period as temporary total disability because the evidence established only that claimant was suffering a temporary partial disability. See Tallahassee Coca Cola Bottling v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981).
We find no error in the award of temporary wage loss benefits during this entire period, however, because neither the employer nor the carrier advised claimant of her entitlement to workers’ compensation benefits and her responsibility to conduct a good faith job search. See Christian v. Greater Miami Academy, 541 So. 2d 701 (Fla. 1st DCA 1989).
The deputy properly found that failure to advise claimant of the job search requirement excused her failure to comply with that requirement. See Morris v. Metal Indus., 491 So. 2d 312 (Fla. 1st DCA 1986); DeFrees v. Colt and DuMont/Hit Sales, 483 So. 2d 848 (Fla. 1st DCA 1986); Dan’s Plumbing v. Smith, 410 So. 2d 941 (Fla. 1st DCA 1982).
We direct that the order be modified to award temporary partial disability benefits for total wage loss during these periods of unemployment and, as so modified, we affirm the award of these benefits. See Jones Mahoney Corp. v. Hutto, 421 So. 2d 703 (Fla. 1st DCA 1982).
The employer and carrier also contend that the deputy erred in awarding claimant “a reasonable attorney’s fee” based on a total controversion of disability benefits for two reasons. They point out that, first, they had previously stipulated to the compensability of the injury, and second, the deputy did not conduct a separate hearing on the specific issue of bad faith.
The record before us supports the award of attorney’s fees for bad faith under section 440.34(3)(b), Florida Statutes (1987), and the award appears to be sustainable under, our decision in O.T. Sims & Associates v. Merchant, 435 So. 2d 884 (Fla. 1st DCA 1983).
However, section 440.34(3)(b) explicitly provides for a separate fact-finding proceeding on the issue of bad faith, and we have repeatedly enforced that provision. See Fleetwood Homes of Florida v. Biagiano, 543 So. 2d 459 (Fla. 1st DCA 1989); Haas v. Seekell, 538 So. 2d 1333 (Fla. 1st DCA 1989); Baron Transport v. Riley, 526 So. 2d 1028 (Fla. 1st DCA 1988). For this reason, we find it necessary to vacate the award of attorney’s fees and remand for a separate hearing on the bad faith issue.
AFFIRMED IN PART AND REVERSED IN PART.
WENTWORTH, J., concurs; NIMMONS, J. specially concurs with opinion.
NIMMONS, Judge,
specially concurring.
Although I agree that the award of attorneys fees should be vacated and that the case should be remanded for a separate hearing on the bad faith issue, I do not join in that portion of Judge Zehmer’s opinion wherein the gratuitous statement is made that the present record before us supports the award of attorneys fees based on bad faith.
I concur in the balance of the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Xerographics & Claims Ctr. v. Bender, 558 So. 2d 514 (Fla. 1st DCA 1990)…ary total disability benefits because the evidence established only that the claimant was suffering a temporary partial disability. See Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981); Shop & Co, Inc. v. Copeland, 549 So. 2d 803 (Fla. 1st DCA 1989). Neither claimant’s treating physician nor the JCC considered claimant totally disabled. Claimant’s treating physician testified that claimant had riot reached maximum medical improvement and repeatedly indicated that claimant wa…
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Fleetwing Corp. v. Knight, 566 So. 2d 337 (Fla. 1st DCA 1990)…CA 1988); Pasco County v. Green, 382 So. 2d 798 (Fla. 1st DCA 1980). Because claimant requested TPD benefits, submitted appropriate forms, and established an entitlement to such benefits, we could, under the holdings of Shop & Go, Inc. v. Copeland, 549 So. 2d 803 (Fla. 1st DCA 1989), and Jones Mahoney Corp. v. Hutto, 421 So. 2d 703 (Fla. 1st DCA 1982), strike the TTD award and modify the order to award TPD benefits. However, we have concluded that e/c’s other meritorious point on appeal, i.e., the award of p…
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HRS Dist. I & Div. of Risk Mgmt. v. Bedford, 767 So. 2d 667 (Fla. 1st DCA 2000)…verse because the order was not preceded by a separate hearing addressing the issue of bad faith and does not contain “specific findings of fact” on the issue of bad faith, as required by section 440.34(3)(b). See, e.g., Shop & Go, Inc. v. Copeland, 549 So. 2d 803 (Fla. 1st DCA 1989) (reversing an attorney fee award because section 440.34(3)(b) requires that a separate fact-finding hearing on the issue of bad faith be held before an award may be made); Baron Transport v. Riley, 526 So. 2d 1028 (Fla. 1st DCA 1…
Authorities Cited
- Tallahassee Coca Cola Bottling Co. & Hartford Ins. Co. v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981)
- Morris v. Metal Indus., 491 So. 2d 312 (Fla. 1st DCA 1986)
- DeFREES v. Colt & Dumont/HIT Sales & Hartford Ins. Co., 483 So. 2d 848 (Fla. 1st DCA 1986)
- Haas v. Seekell, 538 So. 2d 1333 (Fla. 1st DCA 1989)
- Dan's Plumbing & CNA Ins. v. Smith, 410 So. 2d 941 (Fla. 1st DCA 1982)
- O.T. Sims & Assocs. v. Merchant, 435 So. 2d 884 (Fla. 1st DCA 1983)
- Jones Mahoney Corp. & U.S. Fid. & Guar. Co. v. Hutto, 421 So. 2d 703 (Fla. 1st DCA 1982)
- Baron Transp. & Claims Ctr. v. Riley, 526 So. 2d 1028 (Fla. 1st DCA 1988)
- Christian v. Greater Miami Acad. & Crawford & Co., 541 So. 2d 701 (Fla. 1st DCA 1989)
- Fleetwood Homes OF Fla. & Crawford & Co. v. Ouida Biagiano, 543 So. 2d 459 (Fla. 1st DCA 1989)