Sonesta Beach Hotel v. Hinckley, BG-421
| Decision Date | 13 February 1986 |
| Docket Number | No. BG-421,BG-421 |
| Citation | 11 Fla. L. Weekly 407,483 So.2d 102 |
| Court | Florida District Court of Appeals |
| Parties | 11 Fla. L. Weekly 407 SONESTA BEACH HOTEL and Aetna Casualty & Surety Co., Appellants, v. Ruth HINCKLEY and Division of Workers' Compensation, Appellees. |
Jeffrey S. Breslow, of Adams, Kelley & Kronenberg, Miami, for appellants.
Stuart F. Suskin, of Abrams & Suskin, North Miami Beach, for appellees.
The sole issue raised on appeal by the employer/carrier is that the deputy commissioner erred by awarding claimant an attorney's fee under section 440.34(3)(b) and (c), Florida Statutes (1983). We affirm.
The deputy commissioner's order provides:
1. The Deputy Commissioner has jurisdiction of the parties and the subject matter hereto.
2. The issue is limited to entitlement to attorney's fees payable by the employer/carrier pursuant to Florida Statutes 440.34(3)(b) and (c).
3. The claimant contends that the employer/carrier is obligated for attorney's fees as a result of benefits obtained pursuant to the Amended Order dated November 21, 1984 under the "bad faith" and/or "controversion" provisions of Florida Statutes 440.34. The employer/carrier defended arguing that if the claimant's attorney is entitled to a fee it should be paid by the claimant and not the employer/carrier, since there was no conversion, and no bad faith.
4. In addition to the live testimony and documentary evidence which was introduced at the previous hearing leading up to the Amended Order of November 21, 1984, the claimant placed into evidence the Claim for Benefits, Application for Hearing, Workers' Compensation Specialist's Report of September 28, 1982, BCL-4 dated May 25, 1982, and Notice to Controvert dated September 21, 1982.
5. While I have not detailed a resume of the testimony of all of the witnesses, I have considered all of the testimony of all of the witnesses, all of the documentary evidence and deposition placed into evidence, resolved any conflicts therein, and made the following findings of ultimate fact:
I find the employer/carrier shall pay the claimant's attorney a reasonable attorney's fee on the basis of benefits obtained pursuant to the Amended Order of November 21, 1984 on the basis of both Florida Statutes 440.34(3)(b) and Florida Statutes 440.34(3)(c).
I find that the employer/carrier in fact controverted the claim in its entirety for the following reasons: the claimant was paid compensation and medical benefits from the date of her accident until May 25, 1982 when the carrier filed their BCL-4 dated May 25, 1982 suspending compensation benefits on grounds that "injury not work related." Immediately following the filing of this form, both compensation and medical benefits were suspended. In fact, the claimant was obligated to pay for medical treatment with the previously authorized doctors, out of her own pocket. The claimant retained an attorney and a formal claim was filed on July 30, 1982 requesting compensation and medical benefits, and pointing out that while all benefits were suspended a formal notice to controvert had not yet been filed. The carrier then filed a formal notice to controvert on September 21, 1982 stating, "present condition not related to work/comp injury."
In a deposition of the claim's adjuster, Jo Ann De Luna, the claimant's attorney established through her testimony that the claim, in its entirety, was in fact controverted.
[p. 4] Q. After that examination, I guess a BCL or WCC-4 was eventually filled out controverting further benefits; is that correct?
A. Yes.
[p. 6] Q. Up until this point, the claimant had been receiving compensation?
A. Yes, sir.
Q. And authorized medical treatment?
A. Yes, sir.
Q. After that everything was suspended?
A. Yes.
[p. 10] Q. Before I go on further, is it fair to say on the strength of a bill which indicates diagnosis deferred and then makes a short statement, that all compensation benefits were controverted subsequent to May 25, 1982 from a doctor that examined her for a sinus problem in and of itself?
Mr. Kronenberg: I object to the form. When you say controverted, you mean suspended or compensatory?
Mr. Suskin: I mean the whole gamut.
Mr. Kronenberg: Benefits were suspended.
Mr. Suskin: The entire case was controverted, wasn't it?
A. I know we suspended the benefits at that point. Let me check.
Q. Check around September 21, 1982.
A. Yes, it was.
Q. Back to the question: on the strength of Dr. Villalonga's bill, all compensation benefits were controverted; is that a fair statement?
A. Yes, sir.
[p. 14] Q. Then you came out with the BCL-4 dated May 25, 1982, which indicated injury not work related; is that correct?
A. That's correct.
Ms. De Luna, at one point, stated that, "what was controverted was her present condition, which was the ear condition." The claimant's attorney, Mr. Suskin, then asked her to point out where there was a specific mention that the ear condition alone was controverted, leaving the other conditions intact and compensable. It was not answered. Mr. Suskin then directed the witness to the claims evaluation report from the Workers' Compensation Specialist, Timothy Christie, dated September 28, 1982 which stated, CARRIER:
At the final hearing, counsel for the employer/carrier objected to the Division's Claim Evaluation being admitted into evidence on the basis of hearsay. On the strength of the holding of Burnup & Sims, Inc. v. Ozment, 440 So.2d 29 (1 DCA, 1983), I find that the statement given to the Workers' Compensation Specialist was an admission on the part of the carrier of their intent at the time when benefits were suspended. While information contained in reports from Workers' Compensation Specialist contained hearsay information, their reports are a necessary adjunct to the commission file and the information may, under the proper circumstances, be acceptable evidence. Due to the fact that the Specialist's report was placed into controversy during the deposition of Ms. De Luna, without objection on the part of the carrier's counsel, and without objection at the time the deposition was placed into evidence, and because there was no effort made on the part of the carrier to refute the statements made by Mr. Christie attributable to the carrier, I feel the report of the Workers' Compensation Specialist constituted reliable evidence. Furthermore, under the basis principles of administrative law, hearsay evidence is admissible at the discretion of the finder of fact and is considered as competent and substantial so long as it does not stand alone and is supported by other competent substantial evidence on the disputed issue.
In the deposition of Ms. De Luna, Mr. Suskin asked,
[p. 12] Q. Do you have a copy of the claim evaluation report from Timothy Christie, dated September 28, 1982?
A. Yes.
Q. Do you have that in front of you?
A. Yes, I do.
Q. Would you look on the first page where it says that the compensability of the claim is at issue at this time?
A. The compensability of the claim was not at issue before May 25, 1982.
Q. Do you disagree with that statement?
A. I can't disagree. I can't remember that far back.
I further find that the self-serving statements of the adjuster, after the fact, denying compensability of the entire claim, is inconsistent with the actions of the carrier. Up until May 25, 1982, compensation and medical benefits were being provided. The claimant was receiving orthopedic and cardiac treatment. If in fact the carrier were controverting only an ear condition, leaving all other medical treatment authorized, then why were all medical benefits suspended? Moreover, Ms. De Luna acknowledged that at the time of the suspension of benefits, the claimant was under the care of Dr. Gilmore, who felt the claimant was unable to...
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...is a reasonable fee. fact finder, should not have been emphasized as much as they were.... The opinion in Sonesta Beach Hotel v. Hinckley, 483 So.2d 102 (Fla. 1st DCA 1986), indicates that alternative findings of entitlement to an attorney's fee based upon both wrongful controversion and ba......
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Prestressed Decking Corp. v. Medrano
...to an attorney's fee based upon both wrongful controversion and bad faith handling of a claim were approved in Sonesta Beach Hotel v. Hinckley, 483 So.2d 102 (Fla. 1st DCA 1986). Like the deputy in the present case, Sonesta acknowledged that even if a fee is awardable for denying the occurr......