Brown v. Hospitality Care Center & Aetna Life & Casualty Co.
Brown v. Hospitality Care Center & Aetna Life & Casualty Co.
Opinion of the Court
Mary Frances Brown appeals an order of the deputy commissioner denying her request for attorney’s fees. She argues that the deputy commissioner misapplied section 440.34, Florida Statutes (1978), which governs the grant of attorney’s fees in this case. We reverse and remand for determination of the amount of attorney’s fees entitled to be received by appellant’s counsel.
Claimant was involved in a compensable accident on July 10, 1979,
Claimant filed a motion for payment of attorney’s fees. The deputy commissioner denied the motion, stating, “[I]t cannot be said that the carrier created [a] willful wall of ignorance in view of all of the facts and circumstances.” Claimant appeals, arguing that because the carrier did not accept the claim for PTD benefits within twenty-one days, she is entitled to attorney’s fees under the applicable statute.
Section 440.34(1), Florida Statutes (1978), provides:
If the employer or carrier ... shall decline to pay a claim on or before the 21st day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation and the claimant shall have employed an attorney at law in the successful prosecution of the claim, there shall, in addition to the award for compensation, be awarded a reasonable attorney’s fee.
The twenty-one day period ordinarily begins to run when the employer receives notice that a claim has been filed. The filing of a claim will not operate as notice, however, when the claim does not contain sufficient information to enable the employer to begin an investigation. All American Pools 'N Patio v. Zinnkann, 429 So.2d 733 (Fla. 1st DCA 1983); Massey v. North American Biologicals, 397 So.2d 341 (Fla. 1st DCA 1981); Latt Maxcy Corp. v. Mann, 393 So.2d 1128 (Fla. 1st DCA 1981). “The critical consideration is, therefore, to be centered on evidence showing when the employer had sufficient knowledge to begin an investigation.” National Airlines, Inc. v. Wikle, 451 So.2d 908, 910 (Fla. 1st DCA 1984). In Massey the court held that although the claim for permanent benefits did not provide sufficient notice to the employer where claimant’s physician “had expressed no opinion concerning whether claimant had reached maximum medical improvement nor the nature or extent of permanent disability, if any,” 397 So.2d at 342, the employer did have sufficient notice when they received a letter from a physician setting the MMI date and the amount of permanent impairment.
In the instant case the undisputed evidence shows that the employer and carrier had sufficient information to begin investigating the claim for PTD benefits long before the carrier accepted it. The carrier was informed in August 1981 that claimant had reached MMI with a fifty percent permanent impairment of one leg. The claim for PTD benefits was filed on September 25, 1981. When the carrier investigated, it was informed that only a knee fusion would improve claimant's condition. Claimant rejected the possibility of a knee fusion in December 1981, and the carrier admits that it knew of this decision in March 1982. At this point, the carrier knew that claimant had reached MMI and knew the serious extent of her permanent impairment. The carrier clearly had enough information to place it on notice to begin the required investigation of the PTD claim and accept or reject the claim. See National Airlines, Inc. v. Wikle, 451 So.2d 908; DiMuro v. Dave’s Tile Service, Inc., 409 So.2d 107 (Fla. 1st DCA 1982); Smith v. Dixie Packers, Inc., 384 So.2d 709 (Fla. 1st DCA), petition for review denied, 392 So.2d 1373 (Fla. 1980); G & S Packing Co. v. Driggers, 382 So.2d 446 (Fla. 1st DCA 1980).
The appealed decision is REVERSED and the cause is REMANDED for determination of the amount of attorney's fees due claimant.
. The 1979 amendment to section 440.34 became effective on August 1, 1979. Ch. 79-312, Laws of Florida. Thus, this accident is governed by the pre-amendment (or "old") law.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.