St. Francis Hospital, Inc. v. Feinberg

Decision Date02 November 1966
Docket NumberNo. 34595,34595
Citation192 So.2d 753
PartiesST. FRANCIS HOSPITAL, INC., American Surety Company of New York, Petitioners, v. Eileen FEINBERG and the Florida Industrial Commission, Respondents.
CourtFlorida Supreme Court

Blackwell, Walker & Gray and R. A. Ortmayer, Miami, for petitioners.

James J. McVeigh, Miami, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents.

WARREN, LAMAR, Circuit Judge.

The St. Francis Hospital and its compensation insurance carrier petition for writ of certiorari reversing the order of the Florida Industrial Commission, which upheld the order of its deputy commissioner.

This matter was previously before the court in the case of Feinberg v. St. Francis Hospital, Fla., 149 So.2d 541, when the order of the full commission was quashed and the order of the deputy commissioner reinstated, in which the claim had been found compensable and temporary total disability compensation had been granted.

A hearing on further remedial treatment followed and the deputy commissioner found that the claimant had reached maximum medical improvement and had a ten per cent permanent partial disability of the body as a whole; and his order required payment of compensation, expert witness fees, attorney's fees, and medical and drug bills.

Claim was thereafter made for additional compensation for temporary total disability, medical treatment, hospitalization and other benefits, it being related in one of claimant's claim letters that she had had a recurrence of her thrombophlebetic condition but, because of the refusal of St. Francis Hospital and its doctors to treat her, she had been forced to obtain medical treatment from a Dr. Klein, who recommended she be admitted to a hospital. A hearing on the claim resulted in an order which found that the claimant was temporarily totally disabled, and ordered the employer and its carrier to pay temporary total disability compensation, to provide remedial care and treatment, including hospitalization at Miami Heart Institute and any surgery which might be necessary, to pay all outstanding medical and drug bills, and to pay temporary attorney's fees, transportation expenses, and costs.

The first point on review questions the correctness of the finding of an attorney's fee for claimant's attorney and the award of temporary attorney's fees, and questions the direction to pay claimant's transportation expenses. No testimony or evidence was received in regard to the reasonableness of the fee awarded. In Florida Silica Sand Co. v. Parker, Fla., 118 So.2d 2, it was said, '(I)t remains the burden of the claimant to establish the circumstances that justify the award, as well as to prove the reasonableness of the fee to be awarded.' Also, see Le Forgeais v. Erwin-Newman Company, Fla., 139 So.2d 401. An attorney's fee should be determined and awarded in a lump sum. F.S., § 440.34 F.S.A., Matera v. Gautier, Fla. 133 So.2d 732. As to the award of transportation expenses, the deputy commissioner's order provided that such expenses were 'to be ascertained by providing sworn statements of expenditures resulting from her treatment.' No claim, however, for such reimbursement has been asserted by the claimant and no testimony is in the record of her expenditures. This court stated in Mobley v. Jack & Son Plumbing, Fla., 170 So.2d 41, 47, that '(U)nless the parties in workmen's compensation proceedings stipulate on a mileage rate, the reasonable actual cost of such travel expenses will have to be proved just as any other factual issue.' Both of these awards are reversed, with directions to the deputy commissioner to receive proper proof of the same.

The second point asks if there was error in directing a change in medical treatment and reimbursement of the claimant for treatments that the claimant obtained without authorization. The part of this point dealing with change in medical treatment will be considered under the third question.

In his compensation order the deputy commissioner, as a predicate for ordering the employer and carrier to pay all outstanding medical and drug bills, found 'that the employer and carrier failed to file a notice to controvert the claimant's claim to medical treatment after they knew the claimant was being treated after her discharge by the hospital physician, notwithstanding the failure of the claimant's physicians to file the reports required by the statute (§ 440.13, F.S.); * * *. Accordingly, claimant is entitled to have her medical bills paid by the employer and carrier, * * *.' The order fails to find good cause, as required by the statute, to excuse the failure to file the reports; the record fails to show good cause. An omission to file a notice of controversy does not constitute a default upon which a claim proceeds ex parte. Virginian, Inc. v. Ponder, Fla., 72 So.2d 781. The claimant shared with the physicians the responsibility to file the reports. Hood's Dairy v. Severino, Fla., 178 So.2d 588. Refusal of the employer to furnish medical services is not good cause. Strickland v. Al Landers Dump...

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5 cases
  • Watson v. Freeman Decorating Co.
    • United States
    • Florida District Court of Appeals
    • September 17, 1984
    ...expenses necessarily places the burden on claimant to show a good cause excuse, if such becomes an issue. See St. Francis Hospital, Inc. v. Feinberg, 192 So.2d 753 (Fla.1966). The type of evidence necessary to meet the burden may vary in a given case. Thus, in certain cases, the claimant ma......
  • Walt Disney World Co. v. Schiebel
    • United States
    • Florida District Court of Appeals
    • May 28, 1982
    ...bills, holding that the notice of controversy did not in itself excuse the failure to file reports. 1 See St. Francis Hospital, Inc. v. Feinberg, 192 So.2d 753 (Fla.1966); Hood's Dairy v. Severino, 178 So.2d 588 (Fla.1965). The cause was remanded for a specific finding as to whether good ca......
  • Broward Indus. Plating, Inc. v. Weiby
    • United States
    • Florida District Court of Appeals
    • March 11, 1981
    ...appropriate entities. The claimant, as well as physicians and hospitals, all share this responsibility, see St. Francis Hospital, Inc. v. Feinberg, 192 So.2d 753, 755 (Fla.1966), and the failure to satisfy this responsibility renders a claim for medical, surgical, or other remedial treatmen......
  • Walt Disney World Co. v. Schiebel
    • United States
    • Florida District Court of Appeals
    • May 5, 1981
    ...the claim, a notice of controversy does not in itself excuse the failure to file timely medical reports. St. Francis Hospital, Inc. v. Feinberg, 192 So.2d 753 (Fla.1966); Hood's Dairy v. Severino, 178 So.2d 588 (Fla.1965); Miami Dade Water & Sewer Authority v. Plescow, IRC 2-3690 (February ......
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