Veterans Septic Tank Service v. Wallace

• Decision Date: 13 February 1984
• Docket Number: No. AT-159,AT-159
• Citation: Veterans Septic Tank Service v. Wallace, 445 So.2d 389 (Fla. App. 1984)
• Parties: VETERANS SEPTIC TANK SERVICE, and Aetna Insurance Company, Appellants, v. Carl WALLACE, Appellee.
• Court: Florida District Court of Appeals

Page 389

445 So.2d 389

VETERANS SEPTIC TANK SERVICE, and Aetna Insurance Company, Appellants, v.Carl WALLACE, Appellee.

No. AT-159.

District Court of Appeal of Florida First District.

Feb. 13, 1984.

James M. Hess of Driscoll, Langston & Kane, Orlando, for appellants.

R.W. Simmermon, Orlando, for appellee.

SHIVERS, Judge.

The employer/carrier appeal the order of the deputy commissioner awarding claimant wage loss benefits, costs, and directing the employer/carrier to pay claimant's attorney a reasonable attorney's fee.We affirm as to the issues raised on appeal with respect to the deputy's findings that claimant made a good faith and adequate work search, that claimant did not voluntarily limit his employment, and that costs of the proceedings should be taxed against the employer/carrier, since we find competent, substantial evidence in the record to support these findings.We reverse and remand with directions as to the award of attorney's fees and the decretal portion of the order awarding claimant wage loss benefits for the period August 1, 1982 to April 1, 1983 and continuing.We discuss only these latter two points.

Neither in the application for hearing nor at the hearing itself did claimant's attorney assert that the carrier's bad faith handling of the claim was the basis for his claim for attorney's fees.Although this court has interpreted the language contained in section 440.34(3)(b), Florida Statutes(1980), as not requiring the deputy to conduct a completely separate hearing on the question of entitlement to attorney's fees on the basis of bad faith, but only that the question of bad faith be specifically litigated as a separate issue with factual evidence presented going directly to that issue, Embry-Riddle Aeronautical U. v. Vestal, 399 So.2d 1033, 1035(Fla. 1st DCA1981), this court has also held that the deputy may not infer from general testimony that bad faith exists, see, e.g., Closet Maid Corp. v. Wilson, 429 So.2d 419, 421(Fla. 1st DCA1983);Jess Parrish Memorial Hospital v. Layer, 420 So.2d 917(Fla. 1st DCA1982).Here, the record is devoid of any forthright assertion of bad faith, or any meaningful litigation on that subject at the hearing before the deputy.Accordingly, the deputy's order as to attorney's fees is reversed and remanded with directions to the deputy to conduct a separate hearing, necessitated by the failure to meaningfully determine entitlement to attorney's fees at the regular hearing, on the...