Girardin v. An Fort Myers Imports, LLC
| Decision Date | 10 August 2022 |
| Docket Number | 1D21-3405 |
| Parties | Kelly Girardin, Appellant, v. AN Fort Myers Imports, LLC d/b/a AutoNation Toyota Fort Myers/Gallagher Bassett, Appellees. |
| Court | Florida District Court of Appeals |
Date of Accident: December 19, 2020
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from an order of the Office of the Judges of Compensation Claims. Jack Adam Weiss, Judge.
Martha D. Fornaris, Coral Gables, Amie E. DeGuzman, Jacksonville for Appellant.
Tiffany Hawks, Coral Gables, for Appellees.
Kelly Girardin, a workers' compensation claimant (Claimant) in the proceedings below, argues in this appeal that the Judge of Compensation Claims (JCC) erred by denying her claim for attendant care because she did not provide the employer/carrier (E/C) with a sufficiently specific written prescription pursuant to section 440.13(2)(b)1., Florida Statutes (2020). As explained below, we agree and reverse.
Claimant's authorized treating doctor (Dr. Wolff) wrote a prescription for a "Home health Evaluation &attendant care, 12 hrs/day 7 days per week." Claimant attached a copy of the prescription to a petition for benefits she filed a few days later. The E/C responded by stating that "attendant care . . . is authorized" and that they would provide "additional details under separate cover." According to the carrier's adjuster, she contacted Dr Wolff the day she received the prescription to ask for more information. The doctor told her he prescribed the home evaluation because he did not know anything about Claimant's home situation and therefore could not provide any specifics about how much and what type of attendant care Claimant needed based on her physical restrictions. Over the next approximately five months, the E/C retained agencies that conducted three home visits and assessments, with the last occurring just a few days before the final hearing. Additionally, Dr. Wolff gave deposition testimony concerning Claimant's limitations, but again said he would defer to the home health evaluation before he could provide specifics concerning the amount and type of attendant care she required. At no time did the E/C provide Dr. Wolff with the evaluations.
Despite authorizing attendant care and the home evaluations, at the final hearing the E/C took the position that they had offered care for "up to" twelve hours daily, but also maintained that the JCC could not award attendant care because they had not yet received a written prescription that satisfied the statute's specificity requirements. The JCC agreed, rejecting Claimant's argument that the E/C had already authorized attendant care and had all the information they needed, but were nonetheless essentially hiding behind the written prescription requirement to avoid providing the attendant care. In his order, the JCC found that, pursuant to the statute's plain language, the E/C here were not responsible for providing attendant care until Dr. Wolff or another physician "requests in writing attendant care for Claimant that specifies 'the time periods for such care, the level of care required, and the type of assistance required,'" and that Claimant "simply failed" to provide evidence of a written prescription with the requisite specificity. He therefore denied the claim for "authorization and payment of attendant care per Dr Wolff for 12 hours per day, 7 days per week to the date of the Final Hearing."
Section 440.13(2)(b)1., Florida Statutes (2020), provides, in relevant part:
The employer shall provide appropriate professional or nonprofessional attendant care performed only at the direction and control of a physician when such care is medically necessary. The physician shall prescribe such care in writing. The employer or carrier shall not be responsible for such care until the prescription for attendant care is received by the employer and carrier, which shall specify the time periods for such care, the level of care required, and the type of assistance required.
The JCC correctly found that this statute requires a written prescription with certain information before an E/C will be responsible for providing attendant care. As this court explained in James W. Windham Builders, Inc. v Overloop, 951 So.2d 40 (Fla. 1st DCA 2007), however this does not relieve an E/C of its obligation to "monitor a claimant's injuries and provide needed benefits" or excuse any "attempt to hide behind a wall of willful ignorance." Id. at 43.
In Overloop, after the claimant underwent compensable surgery, the...
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