Aino's Custom Slip Covers v. DeLucia

• Decision Date: 27 October 1988
• Docket Number: No. 87-1772,87-1772
• Citation: 13 Fla. L. Weekly 2395,533 So.2d 862
• Parties: 13 Fla. L. Weekly 2395 AINO'S CUSTOM SLIP COVERS and Nationwide Insurance Company, Appellants, v. Anthony DeLUCIA, Appellee.
• Court: Florida District Court of Appeals

Page 862

533 So.2d 862

13 Fla. L. Weekly 2395

AINO'S CUSTOM SLIP COVERS and Nationwide Insurance Company, Appellants, v. Anthony DeLUCIA, Appellee.

No. 87-1772.

District Court of Appeal of Florida First District.

Oct. 27, 1988.

Rehearings Denied Dec. 1 and Dec. 19, 1988.

H. George Kagan of Miller, Hodges, Kagan & Chait, Deerfield Beach, for appellants.

Frank B. Kessler, Lake Worth, and Jerry J. Goodmark, West Palm Beach, for appellee.

THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers' compensation order which, inter alia, establishes the claimant's date of maximum medical improvement (MMI), awards claimant permanent total disability (PTD) benefits, directs the E/C to furnish claimant with a customized van equipped with a wheelchair lift, awards 24-hour attendant care benefits, and directs that Lawrence Forman & Associates, a rehabilitation service company, shall oversee all of claimant's rehabilitation, medical management and home modifications. We affirm in part, reverse in part, and remand.

The E/C first take issue with the deputy commissioner's (deputy) finding that claimant reached MMI on June 2, 1987, and with his conclusion that because they failed to accept claimant as PTD until late August 1987 their acceptance was "late" so that they were not insulated from an assessment of attorney's fees. The June 2, 1987 MMI date finds absolutely no support in the record. The only doctor who saw claimant on that date stated that claimant was still improving, and, considered as a whole, all the medical testimony adduced established that MMI had not then been reached. Although it is uncontroverted that claimant will never work again, MMI is a medical, not an employment, concept. MMI is the date after which recovery or lasting improvement can no longer be reasonably anticipated. Johnson v. United Parcel Service, 513 So.2d 1336 (Fla. 1st DCA 1987); Lewis v. Town & Country Auto Body Shop, 447 So.2d 403 (Fla. 1st DCA 1984). So long as there is a reasonable expectation that further improvement is possible, a claimant cannot be considered to have reached MMI. Stewart v. Resort Inns of America, 513 So.2d 1334 (Fla. 1st DCA 1987). The award of PTD benefits for the period from June 2, 1987 to August 31, 1987, when the E/C voluntarily accepted claimant as PTD, and the reservation of jurisdiction to assess attorney's fees and costs, are reversed.

The final order places Lawrence Forman & Associates in charge of overseeing and supervising claimant's rehabilitation, home modifications, vehicle purchase, further nursing care needs and further medical care and management. The only evidence in support of this sweeping award was the testimony of Lawrence Forman himself. All other witnesses, both medical and lay, and including claimant, either expressed satisfaction with the services currently being provided by the E/C, or declined to express an opinion. The final order appears to grant Forman unlimited authority to retain services, purchase items, and order evaluations at the E/C's expense. The award is patently erroneous insofar as it purports to give a rehabilitation company authority to oversee and supervise claimant's medical and nursing care. Such responsibility rests with a claimant's authorized treating physicians. Furthermore, although Forman was apparently competent to testify concerning his rehabilitation services, his testimony was not sufficiently substantial to provide the sole support for such a far ranging award of rehabilitative oversight and authority. The deputy is entitled to rely on one witness' testimony over that of another, but the extent of such reliance must be warranted by the substance of that testimony. See Tucker v. Agrico Chemical Co., 476 So.2d 729 (Fla. 1st DCA 1985). Therefore, although we find no error in the award of rehabilitative oversight to Lawrence Forman & Associates, we reverse the extent of the award of authority, and direct the deputy to reconsider it on remand.

The final order finds that "[c]laimant is entitled to receive a van with a wheelchair lift," and directs the E/C to "provide to the Claimant a van with a wheelchair lift. The purchase, selection and customization of the van shall be supervised by Larry Forman's rehabilitation company." To the extent that the order may be interpreted as requiring the E/C to purchase a van to be titled in claimant's name, it is clearly in error. Empire Drilling Co. v. Dunaway, IRC Order 2-3453 (June 6, 1978). Although the E/C can be ordered to furnish or provide a vehicle, the Workers' Compensation Act does not authorize a deputy to order that title to such vehicle vest in the claimant. Id.

Section 440.13(2), Fla.Stat. requires the E/C to "furnish to the employee such medically necessary remedial treatment, care and attendance as the nature of the injury or the process of recovery may require ... including ... medically necessary apparatus." The term "medically necessary apparatus" has been found to encompass a variety of unusual items, including a specially equipped van for a claimant's use. Edgewood Boys' Ranch Foundation v. Robinson, 451 So.2d 532 (Fla. 1st DCA 1984). See also United Sheet Metal Co. v. Meyer, 520 So.2d 616 (Fla. 1st DCA 1988) (portable hot tub); Butler v. Lanzo Construction Co., 509 So.2d 965 (Fla. 1st DCA 1987) (air conditioning); Sacred Heart Hospital v. Grafton, 451 So.2d 1018 (Fla. 1st DCA 1984) (lap pool); Doctors Hospital of Lake Worth v. Robinson, 411 So.2d 958 (Fla. 1st DCA 1982) (child care). Although such awards are permissible, the claimant's need must be clearly established. If the claimant's need is readily apparent, nonmedical evidence may provide adequate support for such an award. Fidelity & Casualty Co. of New York v. Cooper, 382 So.2d 1331 (Fla. 1st DCA 1980). Otherwise, medical evidence as to necessity will ordinarily be required. See United Sheet Metal Co. v. Meyer; Butler v. Lanzo Construction Co.; Edgewood Boys' Ranch Foundation v. Robinson; Haga v. Clay Hyder Trucking Lines, 397 So.2d 428 (Fla. 1st DCA) review denied 402 So.2d 609 (Fla.1981).

In the instant case, no evidence of necessity for a van was adduced. At the most, the testimony of claimant, his wife, and Lawrence Forman established that it would be beneficial and pleasant for claimant to have a van with a...