Expicare Nursing Services v. Eudaley

• Decision Date: 16 March 1992
• Docket Number: No. 91-920,91-920
• Citation: 596 So.2d 126
• Parties: 17 Fla. L. Weekly D731 EXPICARE NURSING SERVICES and Johns Eastern Company, Inc., Appellants, v. Deanna EUDALEY, Appellee.
• Court: Florida District Court of Appeals

Page 126

596 So.2d 126

17 Fla. L. Weekly D731

EXPICARE NURSING SERVICES and Johns Eastern Company, Inc., Appellants, v. Deanna EUDALEY, Appellee.

No. 91-920.

District Court of Appeal of Florida First District.

March 16, 1992.

Douglas W. Barnes and Esther E. Galicia, of George, Hartz, Lundeen, Flagg & Fulmer, Fort Lauderdale, for appellants.

Henry S. Prettyman, Boca Raton, for appellee.

SHIVERS, Judge.

The employer/servicing agent (E/SA) appeal from an order of the Judge of Compensation Claims (JCC) in favor of the employee/claimant. Claimant was employed by Expicare Nursing Services (Expicare) as a staff relief nurse at the time of her injury on June 22, 1989. Like the other nurses at Expicare, claimant was free to accept or refuse any temporary nursing assignment. As she was not required to work a regular schedule, neither was she guaranteed any particular number of hours. Her hourly wage was established, however, at $16.50 during the week and $18.50 on weekends. We find that competent substantial evidence supports the JCC's finding that a compensable accident occurred when claimant, with the help of assistants, attempted to move an unusually obese, comatose patient at Bethesda Hospital, and we affirm as to that issue. The E/SA failed to meet their burden of demonstrating a more logical cause than the June 22, 1989 accident. See Ralosky v. Dynamic Builders, Inc., 500 So.2d 193 (Fla. 1st DCA 1986); Daytona Linen Service v. Davis, 454 So.2d 46 (Fla. 1st DCA 1984).

Likewise, we affirm on the issue of proper notice. Although claimant did not follow the literal requirement of Sec. 440.185(1), Florida Statutes (1988 Supp.), governing notice to Expicare, her employer, competent substantial evidence was presented to show that claimant met her burden of proof as to notice. See Cameron v. City of Miami Beach, 152 So.2d 163 (Fla.1963). Her unrefuted testimony showed that Expicare's formal procedures for reporting work-related accidents had not been fully implemented, nor had they been explained to her, at the time of injury. The supervisors at Expicare and the Bethesda Hospital staff each mistakenly believed that the other had oriented claimant and the other temporary licensed practical nurses (LPN's) concerning proper reporting procedures.

Additionally, the evidence supports the JCC's conclusion that claimant acted reasonably and did what she thought she was supposed to do, under the circumstances, by immediately informing her hospital supervisor, Fely Franco, about the injury, and about one month later, after realizing that the seriousness of her injury required further medical treatment and hospitalization, by contacting Karen Kelly, the president of Expicare. See Peters v. Armellini Express Lines, 527 So.2d 266 (Fla. 1st DCA 1988); Riddle v. Brevard County Board of Public Instruction, 286 So.2d 557 (Fla.1973) (failure to give proper notice excusable if claimant prosecuted claim with acceptable degree of diligence). Alternatively, we note that the actual payment of compensation or the providing of medical care, which occurred here, can constitute a waiver of an employer's right to receive timely notice of an employee's injury. See Logan v. Boise Cascade Corp., 5 Or.App. 636, 485 P.2d 441 (1971); 2B Larson, Workmen's Compensation Law, Sec. 78.31(d), pp. 15-164 & 15-165 (1989).

As to the final issue, we find an abuse of discretion in the JCC's determination of how claimant's average weekly wage (AWW) was to be determined pursuant to Sec. 440.14. The JCC relied on claimant's 13-week wage statement and correctly determined that she had not worked "substantially the whole of 13 weeks immediately preceding the injury" as that period is defined in Sec. 440.14(1)(a). Once the JCC determined that subsection (1)(a) was not satisfied, the statute required a determination of whether there was "a similar employee in the same employment who ha[d] worked substantially the whole of such 13 weeks," upon whose wages claimant's AWW could be based. See Sec. 440.14(1)(b).

Based on the exhibits and the testimony of Debra Morley, Expicare's administrative vice-president, the JCC found that Judith Bridger and Peggy Gillespie-Privett were "similar employees" for purposes of the statute and that Sec. 440.14(1)(b) was the proper approach to calculate claimant's correct AWW. It was proper to consider other Bethesda Hospital staffers who did the same type of work in the same capacity as claimant. See Coleman v. Burnup & Sims, Inc., 95 So.2d 895, 897 (Fla.1957). Given the circumstances of employment for the Expicare LPN's, it is noteworthy that the reference in subsection (1)(b) to "substantially the whole" of the 13 preceding weeks means "not less than 90 percent of the total customary full-time hours of employment,"...