Brown v. Hospitality Care Center, BK-332

• Decision Date: 05 May 1987
• Docket Number: No. BK-332,BK-332
• Citation: 12 Fla. L. Weekly 1170,506 So.2d 1103
• Parties: 12 Fla. L. Weekly 1170 Mary Frances BROWN, Appellant, v. HOSPITALITY CARE CENTER and Aetna Life & Casualty Co., Appellees.
• Court: Florida District Court of Appeals

Page 1103

506 So.2d 1103

12 Fla. L. Weekly 1170

Mary Frances BROWN, Appellant, v. HOSPITALITY CARE CENTER and Aetna Life & Casualty Co., Appellees.

No. BK-332.

District Court of Appeal of Florida,

First District.

May 5, 1987.

Ronald L. Bloom, of Smith, Davenport, Bloom, Harden & Johnson, Jacksonville, for appellant.

John J. Schickel, of Coker, Myers & Schickel, Jacksonville, for appellees.

ZEHMER, Judge.

Mary Frances Brown appeals an order of the deputy commissioner denying her request for attorney's fees. She argues that the deputy commissioner misapplied section 440.34, Florida Statutes (1978), which governs the grant of attorney's fees in this case. We reverse and remand for determination of the amount of attorney's fees entitled to be received by appellant's counsel.

Claimant was involved in a compensable accident on July 10, 1979, ¹ and sustained serious damage to her knee. She reached maximum medical improvement (MMI) on August 24, 1981, with a fifty percent permanent impairment of her leg. Her attorney filed a claim for permanent total disability (PTD) benefits on September 25, 1981. The compensation specialist for the carrier testified that upon receiving the report that claimant had reached MMI she contacted claimant's treating physician, Dr. Shirley, for further information. She was informed that if claimant rejected a knee fusion she would have reached MMI. The carrier then scheduled a deposition of claimant. In that deposition claimant stated that she might consider a fusion if her doctor advised it. The deposition also revealed that claimant had been involved in an automobile accident and was suing a party to the accident, in part on the theory that the accident had worsened her knee condition. The carrier took no action on the claim for benefits.

In December 1981 claimant rejected the possibility of a knee fusion. The carrier admits that they knew of this decision by March 1982. In response, the carrier reviewed the interrogatories in the lawsuit and referred claimant to a rehabilitation nurse. In 1982 and 1983 claimant's condition worsened several times, each time requiring further surgery. The record indicates that the additional surgery was intended to keep claimant at the disability level reached in August 1981, rather than improving her condition. Dr. Shirley testified that none of the additional surgery changed his original MMI date. In July 1983 Dr. Shirley wrote to the carrier that claimant could not work. A hearing on the merits of claimant's claim for PTD benefits was scheduled for July 13, 1983. Six days after Dr. Shirley's letter, the day before the hearing on the merits, the carrier voluntarily accepted claimant as permanently and totally disabled.

Claimant filed a motion for payment of attorney's fees. The deputy commissioner denied the motion, stating, "[I]t cannot be said that the carrier created [a] willful wall of ignorance in view of all of the facts and circumstances." Claimant appeals, arguing that because the carrier did not accept the claim for PTD benefits within twenty-one days, she is entitled to attorney's fees under the applicable statute.

Section 440.34(1), Florida Statutes (1978), provides:

If the employer or carrier ... shall decline to pay a claim on or before the 21st day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation and the claimant shall have employed an attorney at law in the successful prosecution of the claim, there shall, in addition to the award for compensation, be awarded a reasonable attorney's fee.

The twenty-one day period ordinarily begins to run when the employer receives notice that a claim has been filed. The filing of a claim will not operate as notice, however, when the claim does not contain sufficient information to enable the employer to begin an investigation. All American Pools 'N Patio v. Zinnkann, 429 So.2d 733 (Fla. 1st DCA 1983); Massey v. North American Biologicals, 397 So.2d 341 (Fla. 1st DCA 1981); Latt Maxcy Corp. v. Mann, 393 So.2d 1128 (Fla. 1st DCA 1981). "The critical consideration is, therefore, to be centered on evidence showing when the employer had sufficient knowledge to begin an investigation." National Airlines, Inc. v. Wikle, 451 So.2d 908, 910 (Fla. 1st DCA 1984). In Massey the court held that although the claim for permanent benefits did not provide sufficient...