Burnup & Sims, Inc. v. Ozment

• Decision Date: 03 November 1983
• Docket Number: No. AO-259,AO-259
• Citation: 440 So.2d 29
• Parties: BURNUP & SIMS, INC. and Crawford & Company, Appellants, v. Homer L. OZMENT, Appellee.
• Court: Florida District Court of Appeals

Page 29

440 So.2d 29

BURNUP & SIMS, INC. and Crawford & Company, Appellants, v. Homer L. OZMENT, Appellee.

No. AO-259.

District Court of Appeal of Florida First District.

Nov. 3, 1983.

Rehearing Denied Dec. 1, 1983.

Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellants.

Edward J. Richardson of Saxon & Richardson, Melbourne, for appellee.

THOMPSON, Judge.

This is an appeal from a compensation order awarding attorney's fees pursuant to § 440.34(2)(b), Fla.Stat. (1979). We reverse.

The claimant sustained a serious compensable back injury on September 6, 1979, and reached maximum medical improvement (MMI) from his injuries on August 29, 1980. The claimant's doctor found he had suffered a 25% permanent impairment of the body as a whole. On September 17, 1980, the employer/carrier (E/C) received a copy of the doctor's report declaring claimant had reached MMI and discontinued payment of temporary total disability (TTD) benefits. On the same date the doctor's report was received, the E/C forwarded claimant a letter informing of his possible entitlement to wage loss benefits and enclosed a supply of wage loss benefit request forms. The claimant, who apparently was under the impression that the E/C were refusing to pay any further compensation benefits, hired the attorney who continues to represent him in this case. On September 23, 1980, this attorney wrote the E/C to inform them that claimant had been actively but unsuccessfully seeking employment, and was thus experiencing a total loss of wages. The attorney further informed the E/C that claimant was, in his opinion, permanently and totally disabled (PTD), and that the attorney would be filing "the appropriate claim forms" and would request a hearing on the matter. The attorney closed his letter with a request that the E/C offer a lump sum payment in settlement of the PTD claim. On October 1, 1980, the E/C responded to the attorney's letter, informing him that lump sum settlement was not appropriate under the 1979 amendments to the workers' compensation law, and that "[a]t this point, the carrier is not in agreement with you that your client is permanently and totally disabled."

On November 14, 1980, the E/C deposed the claimant and learned that he had been unable to find employment because of his inability to lift or to stand on his feet for prolonged periods. The E/C further learned that claimant was 45-years-old, that he had a high school diploma, and that he had taken some college business courses while in the service. On December 5, 1980, the claimant's attorney filed a formal claim for benefits, which included a claim for PTD benefits and wage loss benefits. However, the attorney did not submit any wage loss benefit request forms to the E/C until January 30, 1981. On February 6, 1981, the E/C submitted to the attorney a check for wage loss benefits for the period from September 19, 1980 through January 18, 1981, along with a letter reminding the attorney that wage loss benefit request forms should be filed with the E/C on a monthly basis and that the forms should include a statement as to what, if any, work search efforts the claimant had made during the previous month. The E/C thereafter continued to pay wage loss benefit upon receipt of wage loss benefit request forms, but continued to insist that the claimant seek employment as a prerequisite to payment of the benefits. During this period, the E/C also investigated the possibility that claimant might benefit from treatment at a pain clinic, and pursued the possibility of rehabilitation both with a state rehabilitation nurse and with a private rehabilitation and vocational counselor. On May 14, 1981, a Division of Workers' Compensation (Division) field specialist completed and forwarded to the parties his claim evaluation conducted pursuant to § 440.19(1), Fla.Stat. The field specialist recommended that the E/C continue payment of wage loss benefits, but that the E/C should provide the claimant with vocational counseling and, if indicated, vocational rehabilitation prior to accepting claimant as PTD. The PTD claim was heard on August 20, 1981, and on October 5, 1981 the deputy commissioner (deputy) entered an order finding claimant to be PTD and reserving jurisdiction to determine whether an attorney's fee should be awarded.

Hearings on the attorney's fee issue were thereafter conducted, resulting in the issuance, on September 1, 1982, of the order on appeal. In the order, the deputy found that the claimant's failure to timely file wage loss benefit request forms did not justify the E/C's delay in paying the wage loss benefits. This finding was erroneous. Although this court has ruled on numerous occasions that wage loss requests need not be submitted on any particular form, and need not be technically perfect or complete down to the last detail, see, e.g., Ardmore Farms v. Smith, 423 So.2d 1039 (Fla. 1st DCA 1982), this court has never ruled that a claimant need not file a wage loss benefit request at all. Such would not be consistent with the dictates of § 440.185(10), Fla.Stat., and under the circumstances of this case no reason appears for excusing the delay in filing the wage loss request form.

In paragraphs nine and ten of the order, the deputy found that notwithstanding the existence of the PTD claim, the E/C continued to insist that claimant conduct a work search each month as a prerequisite to receipt of wage loss benefits, and that the E/C had continued to dispute the PTD claim to and through the date of the hearing. These findings cannot support the conclusion that the E/C acted in bad faith in the handling of this claim. Where a claimant is not patently totally disabled, the E/C is clearly entitled to require a work search as a condition of payment of wage loss benefits, and the fact that the E/C controvert a claim or assert defenses thereto cannot, without more, support a finding of bad faith. Pam Am Tobacco Corp. v. Brown, 416 So.2d 1211 (Fla. 1st DCA 1982); Harper Plumbing & Heating v. Boyd, 418 So.2d 396 (Fla. 1st DCA 1982). Section 440.34(2)(b), Fla.Stat. (1979) defines bad faith as "conduct by the carrier ... which amounts to fraud, malice, oppression, or willful, wanton or reckless disregard of the rights of the claimant." The statute does not provide for the payment of attorney's fees each time an E/C contest a claim but ultimately lose the case on its merits.

In Exceptional Children's Home & Nursery, Inc. v. Fortuna, 414 So.2d 1130, 1131 (Fla. 1st DCA 1982), this court held that an employee's right to receive benefits with reasonable promptness must be balanced against the E/C's right "to make a reasonable investigation regarding liability, and to have a reasonable opportunity to comply with the demands made, depending upon the exigencies of the particular request and the statutory duties and obligations pertinent to it." (emphasis added). Here, the "exigencies of the particular request" for PTD benefits were not compelling, since the claimant was eligible for, and was receiving, 100% wage loss benefits during the period when the E/C were investigating and resisting the PTD claim. Although a claimant who is PTD has a right to be accepted as being PTD even though he is receiving TTD or 100% wage loss benefits and thus is suffering no actual monetary loss as a result of the E/C's failure to accept him as PTD, the fact that the E/C continue to pay benefits during the pendency of the investigation certainly is relevant to the issue of whether the E/C acted reasonably in continuing to investigate a PTD claim.

The "statutory duties and obligations pertinent to" a PTD claim differ significantly from the obligations surrounding, for instance, a claim for medical benefits. Section 440.15(1)(b), Fla.Stat., provides that in all cases not involving certain catastrophic injuries the question of whether a claimant is PTD is to be determined in accordance with the facts of the case. Absent the enumerated types of catastrophic injury, "no compensation shall be payable [for PTD] if the employee is engaged in, or is physically capable of engaging in, gainful employment, and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation." § 440.15(1)(b), Fla.Stat. Deputies are prohibited by § 440 49(1)(c), Fla.Stat. from adjudicating injured workers to be PTD prior to determining whether there is a reasonable probability that the employee can be rehabilitated to the extent that he or she can obtain suitable gainful employment. In our view, these statutes permit, if indeed they do not require, a more extensive investigation of a PTD claim than of lesser claims.

We note the deputy's omission from his order of any reference to the claim evaluation performed by the Division pursuant to § 440.19(1), Fla.Stat. Although the opinions rendered in such claim evaluations are advisory only and are neither res judicata nor binding in any way on any party, such evaluations should not be totally ignored unless they are patently wrong. We perceive that the legislature's determination that claim evaluations performed by the Division should be advisory only was based on a recognition that the information relied upon by the field specialist in making the...