Bass v. IMC Fertilizer

• Decision Date: 25 May 1995
• Docket Number: No. 94-2759,94-2759
• Citation: 655 So.2d 1225
• Parties: 20 Fla. L. Weekly D1270 Cecil E. BASS, Appellant, v. IMC FERTILIZER and United States Fire Insurance, Appellees.
• Court: Florida District Court of Appeals

Page 1225

655 So.2d 1225

20 Fla. L. Weekly D1270

Cecil E. BASS, Appellant, v. IMC FERTILIZER and United States Fire Insurance, Appellees.

No. 94-2759.

District Court of Appeal of Florida,

First District.

May 25, 1995.

Rehearing Denied June 2, 1995.

Susan W. Fox of MacFarlane, Ausley, Ferguson & McMullen, Tampa, and Sidney G. Philpot, Lakeland, for appellant.

Charles E. Bentley and Michael L. Davis of Holland & Knight, Lakeland, for appellees.

PER CURIAM.

Claimant Cecil E. Bass appeals from a worker's compensation order in which the Judge of Compensation Claims (JCC) denied claims for attendant care, taxable costs and attorney's fees. Bass contends that the JCC erred in (1) denying the attendant care claim, (2) finding that Employer/Carrier (E/C) accepted claimant as permanently total disabled (PTD) on May 7, 1990, and (3) determining average weekly wage (AWW). We reverse on the first two issues and affirm on the final issue.

The JCC found that there is "no evidence" that the nature of the injuries required remedial treatment, nursing and attendant care, and "no evidence" that the employer, having knowledge of such injuries, failed to provide the same. The JCC also found that claimant at all times was able to care for himself. The JCC appeared to base this in part on the fact that Bass was never totally confined to a bed nor unable to feed himself. Neither of these facts is dispositive.

Claimant's treating physician, Dr. Lipinski, testified that claimant could not take care of himself, that attendant care was required, and that Mrs. Bass provided care beyond that of normal spousal duties. The doctor's testimony was uncontroverted, and was in fact corroborated by the testimony of Bass and his wife. All three testified that Bass required assistance getting out of bed, walking to the bathroom, bathing, changing his bandages, getting his medication, driving to the doctor and putting on and monitoring the electrical stimulator. These are exactly the types of duties that this court has found to constitute reimbursable attendant care. Honeycutt v. R.G. Butlers Dairy, 525 So.2d 984 (Fla. 1st DCA 1988); see also Walt Disney World Co. v. Harrison, 443 So.2d 389, 393 (Fla. 1st DCA 1983) ("it is not the purpose of Sec. 440.13 to burden family members with medically required nursing services and unskilled attendant care when claimant leaves the hospital").

Even the employer's safety director, George Bushn, testified that Bass would not be able to take care of himself if he lived alone. Bushn also testified that he knew claimant's wife took care of claimant, bathed him and assisted him with the electrical stimulator. He also assumed that she drove claimant to the doctors. Although Bushn testified that Bass did not appear to need attendant care and never asked for or was prescribed attendant care, the record contains evidence which, if considered by the judge, would demonstrate that E/C knew or should have known of the need for attendant care. See Ogden Allied Services v. Bryant, 647 So.2d 195, 196 (Fla. 1st DCA 1994) (wheelchair prescription gave rise to an obligation on part of E/C to investigate possible need for attendant care); Favors v. Walgreen Co., 557 So.2d 951 (Fla. 1st DCA 1990) (same); see also Smith v. DRW Realty Services, 569 So.2d 462, 463 (Fla. 1st DCA 1990) (neither worker's failure to request attendant care nor absence of medical recommendation for such care warrants denial where worker had actual need for attendant care); Walt Disney World Co. v. Harrison, 443 So.2d at 394 ("[A]n employer must offer or furnish benefits which the employer knows or should know from facts properly and diligently investigated that are due.... This obligation cannot be met unless the employer informs the injured worker of the benefits to which he or she is entitled. Section 440.13(1) requires the employer to pay the Claimant for attendant care services obtained by her, even though not first requested, if the nature of the injury requires such nursing services and if the employer, having knowledge of the injury, failed to provide such services.").

Here, claimant's doctor prescribed a wheelchair and walker and sent claimant home in a cast brace from his hip...