419 So. 2d 720 | Fla. Dist. Ct. App. | 1982
The employer/carrier (E/C) appeal a workers’ compensation order, contending, inter alia, that the deputy commissioner (deputy) erred in awarding temporary total disability (TTD) benefits and wage loss benefits, and in finding that the E/C exhibited bad faith in its handling of the claim, and was therefore obligated to pay claimant’s attorney’s fees pursuant to § 440.34(3)(b), Fla.Stat. We agree and reverse as to these issues, but we conclude that the E/C’s remaining contentions are without merit.
The claimant is a 33-year-old woman who sustained a compensable back injury on March 20, 1980, while working as a garbage collector for the employer. She sought treatment from Dr. Appen, a family practitioner who saw her on three occasions after the accident. Dr. Appen found no objective signs of injury, and he released claimant as having reached maximum medical improvement (MMI) and as being able to return to work as of April 7, 1980. However, Dr. Appen recommended to the employer that claimant be given a new job assignment, since he was of the opinion that she would be unable to continue to perform the heavy lifting tasks of a garbage collector without re-injuring her back. The employer thereafter offered claimant less strenuous work as a groundskeeper, but claimant refused to accept the position and her employment was then terminated.
In his order, the deputy found that the E/C had “committed bad faith in the handling of this case, under § 440.34(2)(b) of the Florida Statutes ... ”, and based on this finding reserved jurisdiction to award attorney’s fees. This finding was premature. Although we have previously held that a deputy need not in all cases hold an entirely separate hearing on the question of bad faith, Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981), both the statute and our prior rulings on the issue make it abundantly clear that a deputy cannot decide the issue of bad faith unless the issue is separately and specifically litigated and unless factual evidence is presented which goes directly to the issue. Embry-Riddle, supra; Silver Springs, Inc. v. Scardo, 408 So.2d 844 (Fla. 1st DCA 1982). The record in this case reveals that the issue of bad faith on the part of the E/C was not specifically litigated, and, accordingly, we strike that portion of the order finding bad faith.
AFFIRMED in part, REVERSED in part and REMANDED.