Brevard Community College v. Barber

• Citation: 11 Fla. L. Weekly 831,488 So.2d 93
• Decision Date: 08 April 1986
• Docket Number: No. BA-255,BA-255
• Parties: 11 Fla. L. Weekly 831 BREVARD COMMUNITY COLLEGE and Gallagher-Bassett Insurance Service, Appellants, v. Anderson BARBER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 93

488 So.2d 93

11 Fla. L. Weekly 831

BREVARD COMMUNITY COLLEGE and Gallagher-Bassett Insurance Service, Appellants, v. Anderson BARBER, Appellee.

No. BA-255.

District Court of Appeal of Florida First District.

April 8, 1986.

Rehearing Denied June 4, 1986.

Thomas A. Moore, of Pitts, Eubanks, Hannah, Hilyard & Marsee, Orlando, for appellants.

O. John Alpizar, Palm Bay, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.

ZEHMER, Judge.

The employer, Brevard Community College, and its servicing agent, Gallagher-Bassett Insurance Service, appeal a final order entered June 28, 1984, awarding claimant an attorney's fee upon a finding that the carrier acted in bad faith regarding the handling of claimant's claim and that, as a result, claimant suffered an economic loss. § 440.34(3)(b), Fla.Stat. (1983). Appellants' points on appeal (1) contend that the deputy commissioner erred in compelling on the bad faith issue the production of certain documents that were privileged as attorney-client communications or as work product, (2) challenge the fairness of the deputy's in camera inspection of such documents, (3) complain that the evidence is insufficient to support a finding of bad faith, and (4) assert that the $20,000 fee award is not supported by competent, substantial evidence and is excessive as a matter of law. Although the deputy's handling of the discovery issues is not without error, we nevertheless conclude that such error is harmless and does not affect the validity of the order entered. Finding no merit to the remaining points, we affirm.

Claimant, Anderson Barber, sustained an injury to his low back in the course of his employment with the college on December 8, 1982. His injury and claim were accepted as compensable, and benefits were voluntarily authorized and paid by the employer and servicing agent during the period claimant received treatment. The parties agreed that claimant reached maximum medical improvement on June 10, 1983, but the doctor imposed substantial restrictions on his work activities. The employer and servicing agent decided these restrictions were not substantial enough to prevent claimant from performing all work and, after supposedly offering claimant work within his limitations at his former position, unilaterally suspended payment of compensation benefits on August 31, 1983. Claimant twice returned and attempted to perform the work during September but, because of his injuries, was unable to perform his assigned duties.

On August 26, 1983, claimant's counsel filed a claim seeking permanent total disability benefits or, alternatively, wage-loss benefits. Because the employer had omitted certain fringe benefits in calculating average weekly wage, he also sought an adjustment increasing his average weekly wage and compensation rate and asked for interest, penalties, costs, and attorney's fees. All claims were controverted by the employer and servicing agent, and the matter was heard in January 1984. The deputy commissioner entered an order on February 16, 1984, finding claimant permanently and totally disabled from September 1, 1983, and granted all relief requested by claimant. This order was not appealed. No benefits had been paid by the employer and servicing agent between August 31, 1983, and the date of this order.

As required by section 440.34(3)(b), a separate hearing on claimant's request for attorney's fees was set for May 9, 1984. Prior to this hearing, claimant's counsel engaged in discovery on the issue of bad faith. At the deposition of the servicing agent's adjuster in charge of this claim, claimant's counsel sought production of the adjuster's entire file, less whatever documents the adjuster and counsel for the employer and servicing agent considered to be privileged as attorney-client communications or work product. The adjuster removed a number of documents and the deposition was adjourned to allow claimant's counsel to obtain an in camera inspection of these documents by the deputy commissioner. After reviewing the documents, the deputy orally granted claimant's motion in part and denied it in part. Approximately fifteen of the documents previously removed by counsel were made available by the deputy to claimant's counsel for his review at the hearing. Immediately following the hearing before the deputy, the deposition of the adjuster was completed. The attorney's fee hearing was held May 9, as scheduled. On June 28, 1984, the deputy entered an order awarding a fee in the amount of $20,000, based upon extensive findings of fact by the deputy commissioner, which we summarize as follows:

1. The employer and servicing agent improperly determined claimant's average weekly wage and compensation rate by omitting certain fringe benefits from the calculations. This information was exclusively within the possession of the employer, and although claimant's initial claim (filed in August) raised this issue, the servicing agent initiated no inquiry of this matter until November 1983. It was not until the hearing in January 1984 that the employer and servicing agent conceded they had incorrectly determined the average weekly wage. "Under the circumstances, a delay of almost five months in investigating the claimant's correct compensation rate is totally unreasonable" (R. 820).

2. Claimant's physician discharged him upon his reaching maximum medical improvement with twenty percent permanent physical impairment of the body as a whole and specific work limitations and restrictions. The evidence indicates that claimant was thereafter terminated by the employer and that "it was not until after claimant threatened to 'sue' the college, that attempts were made to specially create a position at the college for the claimant" (R. 821).

3. The deputy found "particularly disturbing" the destruction of correspondence and file material by the servicing agent especially a letter purporting to terminate claimant from the college's employment "after claimant threatened to take legal action against the employer" (R. 821).

4. The employer created a job for claimant solely as a defense to the claim that the job exceeded claimant's physical capacity and limitations and was not "created in good faith with the best interest of the claimant in mind" (R. 821-23).

5. The adjuster handling the claim testified that by December 1983 she had recommended to the employer that claimant be accepted as permanently and totally disabled; yet the employer and servicing agent "forced the claimant to go to trial and prove the obvious" and "vigorously defended" the claim despite the adjuster's recommendations of permanent total disability. The adjuster admitted that she was a trained adjuster and "considered the possibility that claimant may be permanently and totally disabled early in the claims process" (R. 822).

6. Claimant was paid nothing between September 1983 and the date of the hearing. The wage-loss forms filed by claimant were controverted each month without any investigation whatsoever of the claim or inquiry by the employer and the servicing agent; rather, the employer and servicing agent:

[C]ontinued to hide behind the specially created job even though the job exceeded claimant's physical abilities. They ignored claimant's complaints of pain and difficulty with performing the job. They also ignored claimant's physician's records indicating that claimant's pain medication had been increased and the doctor's statement that claimant's job may be more than he can handle.

(R. 822-23)

7. Concerning the refusal to pay any amount of wage-loss benefits during this period, the order recited:

At the very least, the employer/carrier in this instance should have paid claimant wage loss benefits if they were genuinely interested in investigating claimant's claim for permanent total disability benefits. Instead, the employer/carrier chose to hide behind what I consider a wall of willful ignorance. They continued to hide behind this wall of willful ignorance even after the adjuster responsible for the file recommended that claimant be accepted as permanently and totally disabled. Claimant's attorney had proven to the satisfaction of the adjuster that claimant was in fact permanently and totally disabled.... Further, it should have been obvious to any reasonable person examining this claim, as well as claimant's age, education and prior work history, that claimant was permanently and totally disabled.

(R. 823-24).

8. The deputy concluded that both the employer and the servicing agent engaged in:

[A] course of conduct designed to deny, delay and defeat claimant's claim for both wage loss benefits and permanent total disability benefits.... A delay or denial of payment without a showing of active effort and initiative on the part of the employer/carrier to fairly and expeditiously determine its obligations to place needed benefits in the hands of the worker is totally inconsistent with the notion that a claimant is entitled to benefits without the services of an attorney. To hold otherwise would be inconsistent with the law expressed in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (1 DCA 1981), as well as subsequent cases.

(R. 824)

9. The deputy further found that since claimant had been without benefits from September 1983 through the date of the hearing, had been previously paid benefits at an incorrect compensation rate, and would not have received benefits awarded until after the hearing on the claim filed by claimant's attorney, the efforts of claimant's attorney clearly resulted in economic benefit to claimant.

We now turn to the points raised by appellants on their appeal from this order. The employer and servicing agent first contend that the deputy erred by disclosing certain file documents protected by the...