IMC Phosphates Co. v. Prater

• Citation: 895 So.2d 1263
• Decision Date: 10 March 2005
• Docket Number: No. 1D03-4954.,1D03-4954.
• Parties: IMC PHOSPHATES CO., and Travelers Insurance Co., Appellants, v. Lonnie PRATER, Appellee.
• Court: Court of Appeal of Florida (US)

895 So.2d 1263

IMC PHOSPHATES CO., and Travelers Insurance Co., Appellants, v. Lonnie PRATER, Appellee.

No. 1D03-4954.

District Court of Appeal of Florida, First District.

March 10, 2005.

Curt L. Harbsmeier, Terry P. Roberts, and Jennifer Haley, of Harbsmeier, Dezayas, Appel & Harden, LLP, Lakeland, for Appellants.

Pat T. DiCesare, II, and Harold E. Barker, of DiCesare, Davidson & Barker, P.A., Lakeland, for Appellee.

COLLINS, JULIAN E., Associate Judge.

The employer/carrier (E/C) appeal a final order of the Judge of Compensation Claims (JCC) finding compensable, pursuant to section 440.092(5), Florida Statutes (2001), the injuries suffered by claimant Lonnie Prater (Appellee) on August 20, 2002; and granting the request for nonprofessional attendant care for the period from October 4, 2001, through November 1, 2001, for two hours a day at $11.75 an hour (for a total of $658.00) for injuries sustained in the original industrial accident on October 3, 2001. Concluding that competent, substantial evidence (CSE) supports the JCC's factual findings and that the law was correctly applied to those facts, we affirm the final order.

Attendant Care Services

The original accident occurred on October 3, 2001, as Appellee was driving on a gravel/dirt road on Employer's premises and an approaching vehicle swerved from its lane and ran head-on into Appellee. Undisputedly, that accident is compensable. A day after the accident, Appellee underwent an open reduction and internal fixation of the right tibial plateau fracture and intra-operative fluoroscopy at Lakeland Regional Medical Center. When he was discharged from the medical center on the same day, Appellee was in a straight-type long leg cast and had very limited mobility. According to the October 16, 2001, post-surgery status clinical report of Dr. Vo, the board-certified orthopedic surgeon who had performed the surgery upon Appellee's right knee/leg area, Appellee "should remain always non-weightbearing on the right lower extremity." The doctor prescribed a rental wheelchair for four weeks.

At the merits hearing, the JCC heard testimony that Appellee's wife and other family members had provided attendant care services from the date Appellee came home after surgery. E/C contend there is no objective information in the medical notes or in the hospital discharge papers to have put E/C on notice of Appellee's need for attendant care. We hold that the pertinent statutes, Florida case law, and CSE in the record support the award of attendant care benefits.

Several statutes come into play regarding attendant care. Section 440.13(1)(b), Fla. Stat. (2001), defines such care:

"Attendant care" means care rendered by trained professional attendants which is beyond the scope of household duties. Family members may provide nonprofessional attendant care, but may not be compensated under this chapter for care that falls within the scope of household duties and other services normally and gratuitously provided by family members. "Family member" means a spouse, father, mother, brother, sister, child, grandchild, father-in-law, mother-in-law, aunt, or uncle.

Section 440.13(2)(b), Florida Statutes (2001), states in pertinent 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."

"Medically necessary" means any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient's diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature, except in those instances in which prior approval of [AHCA] has been obtained. [AHCA] shall adopt rules providing for such approval on a case-by-case basis when the service or supply is shown to have significant benefits to the recovery and well-being of the patient.

§ 440.13(1)(m), Fla. Stat. (2001).

CSE supports the JCC's finding that Appellee's wife and other family members provided "medically necessary" nonprofessional attendant care services beyond the scope of normal household duties during the period covered by the JCC's award of such care. See Socolow v. Flanigans Enter., 877 So.2d 742, 744 (Fla. 1st DCA 2004)

(including, among "medically necessary" attendant care services, acts such as bathing, dressing, administering medication, and assisting with sanitary functions). E/C assert that the present record does not satisfy the statutory subsection (2)(b) requirement that the attendant care be "performed only at the direction and control of a physician when such care is medically necessary." We disagree.

Dr. Vo was asked on direct examination to assume that immediately after the discharge from the hospital, Appellant was unable to ambulate without assistance, and his family had to help him getting in and out of bed, going to and from the bathroom and bathing, and preparing and serving meals. The doctor testified (by telephone) that "[c]ertainly some degree of assistance would be necessary" for about two hours a day. Other questioning indicated Dr. Vo's confusion as to what the statutes mean by "attendant care" and "medically necessary," and whether his medical opinion differed from the legal definitions of these terms. After he was read statutory subsection (1)(m) (the legal definition of "medically necessary") and examples of compensable attendant care were set forth, Dr. Vo testified that assisting an individual post-surgery with sponge-bathing, ambulating, dressing, and toilet functions is beyond the scope of ordinary familial household duties and is medically necessary based on the nature of Appellee's injury and surgery. Although some inconsistencies or internal conflicts are apparent in Dr. Vo's medical opinions on this issue, the JCC exercised his authority to assess credibility, weigh the doctor's opinions, and resolve conflicting evidence as to whether post-surgery attendant care was reasonable and medically necessary. Because CSE supports the JCC's factual findings as to medical necessity, and the law was correctly interpreted, we shall not disturb the award of attendant care benefits on the first ground asserted by E/C. See Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003)

.

As to E/C's second ground for challenging this award — the alleged lack of CSE and findings to show that attendant care was performed "at the direction and control of a physician" — E/C note that Dr. Vo, the authorized treating physician, did not expressly prescribe attendant care. However, that fact "is not ... determinative of the claimant's right to recover such benefits." Rockette v. Space Gateway Support, 877 So.2d 852, 853 (Fla. 1st DCA 2004). Rather, "[i]t is sufficient that the physician provided the necessary testimony at the hearing." Id.; see also Attitudes & Trends v. Arsuaga, 616 So.2d 1103 (Fla. 1st DCA 1993)

(construing similar language in 1990 version of § 440.13 so as not to preclude award of attendant care for services rendered before physician prescribes such care or states it is medically necessary, where required medical testimony was presented subsequently at hearing). The self-executing nature of Florida's workers' compensation law requires an e/c to monitor a claimant's injuries, procedures, and progress, and to provide needed benefits. See Bass v. IMC Fertilizer, 655 So.2d 1225 (Fla. 1st DCA 1995); Honeycutt v. R.G. Butlers Dairy, 525 So.2d 984 (Fla. 1st DCA 1988). We agree with the JCC's finding that the present record provides evidence that should have prompted a timely, diligent investigation by E/C regarding Appellee's need for attendant care services. See Bass, 655 So.2d at 1225 (reversing denial of attendant care benefits, where record provided evidence from which JCC could impute knowledge to the e/c based on nature and severity of claimant's injury, fact that claimant was sent home from hospital in cast brace from his hips to toes, and fact that claimant's doctor had prescribed wheelchair and walker).

Compensability of Second Accident

E/C's second issue relates to the JCC's finding Appellee's second accident compensable under section 440.092(5), Florida Statutes (2001). It is undisputed that Appellee had a scheduled 4:00 p.m. medical appointment on August 20, 2002, with Dr. Simon, an authorized treating orthopedic surgeon with whom Appellee had begun treatment in June 2002. Appellee testified that in mid-2002, Dr. Simon had advised that Appellee was capable of performing sedentary work. On receiving that news, Appellee became concerned because his knee was getting worse. Appellee said that Dr. Simon initially had indicated he would not approve any more x-rays because some had been taken already. Appellee's wife testified that her daughter had driven Appellee to his previous medical appointment. However, Appellee's wife became so concerned about the lack of improvement in her husband's right knee/leg that she arranged to drive him to Dr. Simon's office on the day in question. She believed that the doctor would not listen to Appellee, and she intended to insist that x-rays be taken.

The parties dispute some of the circumstances surrounding the trip to Dr. Simon's office in Brandon on August 20, 2002. Appellee's wife testified that on the night before the appointment, the air conditioner in her 1992 van, which was used to transport Appellee, "died." Not wanting to put any more money into an old vehicle, she decided to take the morning off from work and to purchase a new vehicle with a functioning air conditioner. She and Appellee left home, drove to a car dealership in Lakeland before lunch, and...