City of Tampa v. Fein, AN-410

• Decision Date: 19 September 1983
• Docket Number: No. AN-410,AN-410
• Citation: 438 So.2d 442
• Parties: CITY OF TAMPA, Appellant, v. Frank J. FEIN, Appellee.
• Court: Florida District Court of Appeals

Page 442

438 So.2d 442

CITY OF TAMPA, Appellant, v. Frank J. FEIN, Appellee.

No. AN-410.

District Court of Appeal of Florida First District.

Sept. 19, 1983.

Rehearing Denied Oct. 17, 1983.

Joseph G. Spicola, Jr., City Atty., Stephen M. Barbas, Asst. City Atty., Tampa, for appellant.

Susan R. Whaley of MacFarlane, Ferguson, Allison & Kelly, Tampa, and H. Guy Smith, P.A., Lakeland, for appellee.

LARRY G. SMITH, Judge.

The City of Tampa, employer in this workers' compensation case, appeals three orders of the deputy commissioner. The first, entered on September 3, 1981, awarded temporary total disability (TTD) and wage loss benefits; the second, entered on July 29, 1982, found that Fein was entitled to attorney's fees pursuant to Section 440.34(3)(b), Florida Statutes (1981); the third, entered on December 1, 1982, set the amount of attorney's fees at $10,500. The issues on appeal relate to the propriety of the award of TTD benefits, wage loss benefits, attorney's fees and the reasonableness of the amount of the fee. We affirm the attorney's fees award, and dismiss as to the other issues.

We dismiss the appeal as it pertains to Fein's entitlement to TTD and wage loss benefits. Even though the deputy commissioner in his order of September 3, 1981 reserved jurisdiction to determine entitlement to and amount of attorney's fees, the order was final. There being no notice of appeal filed within thirty days of the rendition of that order, we are without jurisdiction to consider whether the award of TTD and wage loss benefits was proper.

We also note that though the order finding bad faith was entered on July 29, 1982, the amount of the fee was not set at that time. Orders deciding the issue of compensability only without awarding benefits are nonfinal and nonappealable. Davis v. Hunt, 432 So.2d 650 (Fla. 1st DCA 1983) [8 FLW 1484]. For the same reason, the order relating to the issue of attorney's fees did not become final until the amount of the fee was set on December 1, 1982. The notice of appeal filed on August 4, 1982 was thus premature. This fact does not affect our jurisdiction to rule on the issue of attorney's fees, however. "[A] notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court." Williams v. State, 324 So.2d 74, 79 (Fla.1975). Thus, the notice of appeal matured and vested jurisdiction in this Court on December 1, 1982.

In seeking reversal of the bad faith attorney's fee award, the City argues, among other things, that because the claimant, shortly following his September 23, 1980 re-injury of his back, resigned from his employment--submitting a letter assigning his heart condition as the reason for resigning--the City had good reason to believe that Fein was not entitled to any further benefits.

There are several reasons why the City's argument is not well founded. First, the clear weight of the evidence, including the testimony of the doctor who treated Fein for his heart condition, demonstrate that the claimant's disabling back injuries, not his heart condition, prevented him from continuing in his job with the City. To the extent that the evidence on this point was in conflict, on appeal we are bound by the rule that the resolution of such conflicts is the job of the deputy commissioner, not this court. Moreover, assuming validity of the argument that the City justifiably and in good faith believed Fein's resignation was due to his heart condition, based upon Fein's letter indicating as much, this furnishes no excuse for the City to thereafter forever ignore the true facts relating to claimant's compensable injuries, and their effect upon his ability to perform his job with the City. Here again, the fact that Fein had suffered serious back injuries on the job was never in dispute, and the overwhelming evidence before the deputy commissioner was to the effect that Fein's job as a "working supervisor" called for the performance of heavy manual labor which he was incapacitated to perform in his injured condition. Again, to the extent that there was any conflict in the evidence on these facts, they were resolved in favor of the claimant, and this court is bound by that ruling. The argument that Fein voluntarily discontinued his employment for reasons unrelated to his compensable accidents was resolved against the City by the findings of the deputy commissioner and the award of temporary partial disability from the date of Fein's last employment with the City. This ruling was not timely appealed; and even if it had been appealed, there could have been no reversal absent a showing that there is no reasonable view of the evidence that would sustain the deputy commissioner's ruling. The City has not demonstrated error in the deputy's ruling on this point.

Of even more fundamental significance is the fact that the City's argument misapprehends the basis for the bad faith award in this case. The deputy commissioner did not base the award upon the presence or absence of a good faith belief by the City that Fein was not entitled to any further benefits at the time it received his resignation. Although the deputy's order is brief and somewhat lacking in detail, it leaves no room for question (particularly when viewed in the light of the record itself) that the finding of bad faith was predicated upon the City's conduct amounting to the erection of a "wall of willful ignorance" approach to its responsibilities to provide worker's compensation benefits to its injured employee, Fein. The pertinent paragraphs of the order are as follows:

1. The employer herein refused to accept the fact that the claimant's treating physician, Dr. James Eckart, testified that the claimant reached maximum medical improvement on February 3, 1981, with a 5% permanent physical impairment of the body as a whole....