Opinion
No. AB-142.
July 23, 1982.
Appeal from the Deputy Commissioner.
Wendell J. Kiser and W. Michael Miller of Akerman, Senterfitt Edison, Orlando, for appellants.
Lealand L. Lovering of Lovering, Pound Lober, Cocoa, and Harold E. Regan, Tallahassee, for appellee.
The employer/carrier appeals a workers' compensation order awarding temporary total disability benefits since the date of the accident and continuing, payment of outstanding medical bills, remedial medical care and costs. We affirm as supported by competent substantial evidence the deputy's finding of a causal connection between claimant's May 1, 1980 industrial accident and her subsequent back condition. Accordingly, the award of outstanding medical bills, remedial care and treatment and costs is also affirmed.
However, the award of temporary total disability benefits subsequent to May 13, 1980 must be reversed, as there was no showing of an adequate work search or competent substantial evidence excusing same. See Palm Beach Newspapers, Inc. v. Roston, 404 So.2d 174 (Fla. 1st DCA 1981). Further, although the deputy's reservation of jurisdiction to determine claimant's entitlement to attorney's fees was proper, we strike as gratuitous at this time the deputy's statement in the order that "[t]he evidence submitted to this point indicates that the employer/carrier, in bad faith, denied benefits to the claimant and she sustained economic loss." This finding was improper, as the question of entitlement to attorney's fees on the basis of bad faith was not specifically presented or litigated below, and a deputy "may not simply infer from general testimony that bad faith exists." Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033, 1035 (Fla. 1st DCA 1981).
On this date, the treating physician released claimant to return to light work or part-time work.
The order appealed from, as amended, is affirmed in part and reversed in part.
BOOTH and THOMPSON, JJ., concur.
ERVIN, J., concurs in part and dissents in part with written opinion.
I concur in all facets of the majority's opinion except that part reversing the award of temporary total benefits subsequent to May 13, 1980. As to my reasons for disagreement, I rely upon the views expressed in my dissent to Lake County Commissioners v. Walburn, 409 So.2d 153, 155 (Fla. 1st DCA 1982). Additionally, I would note that the continuing efficacy of the majority's opinion in Walburn, requiring that an employee prove that his work search was unsuccessful due to his disability, rather than unavailability of work, has been called into question by this court's recent opinion in Regency Inn v. Johnson, ___ So.2d ___, no. AE-354, 7 FLW 1285 (Fla. 1st DCA, June 16, 1982). Regency Inn seeks to recede from the above aspect of the Walburn opinion and is to be orally argued before this court en banc on July 21, 1982. At the very minimum, I would withhold judgment in this case as to the question of the adequacy of the claimant's work search until the divergent views of Walburn and Regency Inn have been reconciled by the court as a whole.