Prestressed Systems v. Goff

• Decision Date: 16 April 1986
• Docket Number: No. BE-486,BE-486
• Citation: 486 So.2d 1378,11 Fla. L. Weekly 906
• Parties: 11 Fla. L. Weekly 906 PRESTRESSED SYSTEMS and Claims Center, employer/servicing agent, Appellants, v. James E. GOFF, employee, Appellee.
• Court: Florida District Court of Appeals

Page 1378

486 So.2d 1378

11 Fla. L. Weekly 906

PRESTRESSED SYSTEMS and Claims Center, employer/servicing agent, Appellants, v. James E. GOFF, employee, Appellee.

No. BE-486.

District Court of Appeal of Florida,

First District.

April 16, 1986.

Ronnie Klein Witlin of Witlin & Witlin, Miami, H. Jack Miller of Miller, Hodges, Kagan & Chait, Miami, for appellants.

Irving E. Dunn of Dunn & Johnson, Miami, for appellee.

ERVIN, Judge.

Appellants appeal from an order awarding an attorney fee in the amount of $58,000, which was grounded upon the employer's bad faith in handling the claim. We affirm.

This is the second appearance of the parties before this court. On December 26 1984, the court per curiam affirmed an award of nursing or attendant care payments in the amount of $200 per week to claimant's mother, during the time that claimant was domiciled at his mother's home receiving such care. Prestressed Systems, Inc. v. Goff, 461 So.2d 260 (Fla. 1st DCA 1984). The deputy's earlier order also reserved jurisdiction for the purpose of later determining whether claimant's attorney was entitled to reasonable attorney's fees, by reason of the employer/servicing agent's (e/s/a's) bad faith in handling the claim. A hearing was later held on the reserved issue, an order was entered, and the e/s/a now appeals the attorney fee awarded.

The e/s/a first argues that the award was erroneous in that it was based upon facts that were not properly in evidence. Specifically, it is urged that the deputy's finding of bad faith could not have been made without his reliance upon the deposition testimony of the e/s/a's claim's adjuster, which was never admitted into evidence. ¹ We find this point without merit. As appellee observes, the record does not disclose that any objection to the use of the deposition was brought to the deputy's attention, as permitted by Florida Workers' Compensation Rule of Procedure 4.140(a). As we recognized in Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982), an appellate court will not reverse an issue which was not preserved in the tribunal of first resort.

We are aware that an affidavit was filed in this court by appellants' trial counsel, which recited that the failure of the deposition to be included in the record was brought to the attention of the deputy at the hearing on claimant's motion to tax costs, eight days following the entry of the final order. The affidavit does not state, however, nor does the record otherwise reflect, that any objection was then made regarding the deputy's use of the deposition. As we have no transcript of the taxation of costs hearing, we have no way of ascertaining what transpired. We therefore affirm as to the issue raised.

The e/s/a urges, as an alternative issue, that even if the deposition testimony were properly relied upon, the record as a whole does not support a finding of bad faith in the e/s/a's handling of the claims for attendant care and an increase in claimant's average weekly wage (AWW). It specifically urges that no need for further attendant care was made known to the servicing agent through claimant's treating physician, or indeed any other physician. Nevertheless, the e/s/a was certainly aware of the extent of claimant's massive injuries following his release from the hospital after a stay of more than six months. In fact it voluntarily commenced paying to claimant TTD benefits shortly after the injury and continues to do so even now. Given the information it possessed, it was under a duty to monitor closely claimant's activities, once he returned to his home in a totally disabled condition. It failed to do so.

As is disclosed in the deputy's first order awarding payment for attendant care, claimant was injured on January 12, 1982, when he was knocked from a prestressed concrete slab and fell fifteen or seventeen feet therefrom, striking his head on a concrete beam, causing extensive brain damage. He was taken to the hospital in a semi-comatose state. His neurological condition so deteriorated that a left-frontal craniotomy was required, an intra-cerebral hematoma removed, and a Richmond tube inserted. Claimant remained hospitalized until his release as of July 29, 1982.

The deputy additionally had before him the testimony of claimant's mother who stated that his condition was so bad that he was unable to chew solid foods; that in fact all his food had to be first ground for him; that the mother must provide medication to claimant during various times of the day; that she must regulate the shower for him because he is unable to determine the temperature of the water; and that she is required to shave him because of his involuntary twitching condition. Medical testimony corroborates that of the mother's, revealing that claimant's gait is unsteady and exhibits a course of jerky tremors on his right side, that he has cognitive impairment and difficulty with recent memory. One doctor opined that claimant was suffering from post-traumatic encephalopathy and was in need of around-the-clock attendant care services. This opinion was shared by claimant's treating physician who agreed that claimant was in need of permanent and continuing attendant care because of both his unpredictable nature and the danger for him to be left alone.

The e/s/a's desultory efforts in continuing its investigation regarding the status of claimant's residual disability could at the minimum be considered a passive failure to investigate. Cf. Layne Atlantic Co. v. Scott, 415 So.2d 837 (Fla. 1st DCA 1982). Although the e/s/a may have experienced difficulty in obtaining information from the treating physician due to the latter's tardiness in returning telephone calls, the e/s/a, no later than the early part of 1983, was placed on actual notice of a rehabilitation specialist's report, recommending that claimant be taken out of the home environment and placed in a group home, where attendant care would be provided, at a cost far greater than that provided by claimant's mother. Thus the dispute by the employer is apparently not whether claimant was in need of attendant care, but rather focuses upon the place where such care should be provided. In the meantime, however, fully knowing the extent of claimant's needs, the e/s/a resisted the claim seeking to compensate claimant's mother for the reasonable value of her services, and continued to resist it until shortly after our affirmance of the award, entered December 26, 1984.

The case at bar clearly involves more than a passive failure of an employer in investigating the extent of claimant's disability, or its delay in providing payment for necessary services, once it was on notice of the need for same, cf. Barosy v. Landscape Crane, 418 So.2d 400 (Fla. 1st DCA 1982), but instead reflects a rejection of a claim for attendant care on the primary ground that the home environment was not the best place where such care should be provided. Its refusal to provide payment was clearly inappropriate. Cf. Trophy World, Inc. v. Gonzalez, 444 So.2d 1146 (Fla. 1st DCA 1984) (the carrier's concern over whether a claimant had received excessive medication did not excuse its delaying payment of an uncontested portion of the bill for a period of over three months). Similarly, once the e/s/a was placed on notice of claimant's need for attendant care, its concern over whether claimant should be placed in a group home and there receive the necessary care did not excuse its refusal to pay claimant's mother for the services she furnished. Under the circumstances, its responsibility to pay the mother without entry of an order for her care continued until a decision was finally reached as to the appropriateness of the place where such care should best be provided.

The e/s/a also appeals the deputy's finding of bad faith caused by its delay in failing to increase claimant's AWW. It contends that its failure to do so until the date of the hearing was reasonable in that its claims manager had sent to the employer a standard cover letter requesting the claimant's wage statement, advising that if the claimant had worked less than thirteen weeks before the accident, the employer should then provide a wage statement of a similar employee. Because the claimant had in fact worked less than thirteen weeks before the accident, the employer returned a wage statement of another employee, which it believed conducted work similar to that of claimant. Further investigation however, revealed that the other employee did not perform similar work, because, in addition to doing carpentry, employment similar to that engaged in by claimant, the purported similar employee was responsible for layout work. Based upon the information received from the employer, the servicing agent reasonably based, it is argued, claimant's AWW upon that of the other employee.

We affirm as to this issue as well. The reasonable inferences derived from the deposition testimony of David Bobik, claims manager for the servicing agent, support the deputy's determination that Bobik failed to conduct a proper investigation. In fact, Bobik admitted that if he had done so, he probably would have ascertained that he had not been paying claimant the amount that he was entitled to collect. In the case at bar, the mistake did not involve an insignificant amount, but if promptly ascertained, it would have resulted in $70 more wages per...