Jackson Manor Nursing Home v. Ortiz, No. 91-2517

CourtCourt of Appeal of Florida (US)
Writing for the CourtKAHN; SMITH; ERVIN; ERVIN
Citation606 So.2d 422
Parties17 Fla. L. Week. D2068 JACKSON MANOR NURSING HOME and Fireman's Fund Insurance, Appellants, v. Anita ORTIZ, Appellee.
Docket NumberNo. 91-2517
Decision Date04 September 1992

Page 422

606 So.2d 422
17 Fla. L. Week. D2068
JACKSON MANOR NURSING HOME and Fireman's Fund Insurance,
Appellants,
v.
Anita ORTIZ, Appellee.
No. 91-2517.
District Court of Appeal of Florida,
First
District.
Sept. 4, 1992.

Donald F. Harrington, Miami, and Edward W. Levine of Marlow, Connell, Valerius, Abrams, Lowe & Adler, Miami, for appellants.

Mark L. Zientz of Williams & Zientz, Miami, for appellee.

KAHN, Judge.

Jackson Manor Nursing Home and Fireman's Fund Insurance Company, as employer/carrier, appeal a workers' compensation order requiring them to provide claimant Anita Ortiz with attendant care.

We reverse the order of the judge of compensation claims (JCC) because the record before us lacks competent substantial evidence of medical need for attendant care as required by section 440.13(2)(a), Florida Statutes (Supp.1988).

Page 423

Section 440.13(2)(a), Florida Statutes (Supp.1988), the statute in effect at the time of the injury, provides:

Subject to the limitations specified in s. 440.19(1)(b), the employer shall furnish to the employee such medically necessary remedial treatment, care and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require....

Claimant is 53 years old and was employed as a maid by Jackson Manor Nursing Home on February 15, 1988, when she slipped and fell on a wet floor, injuring her low back. She later filed a claim for home attendant care. The JCC had before her the testimony of two treating physicians. Dr. Bacon, who performed an L5-S1 laminectomy on March 2, 1988, had no notation in his medical chart on the issue of attendant care for Ms. Ortiz. He did, however, indicate that Ms. Ortiz would have the following restrictions: "No sitting for more than an hour continuously, no standing for more than an hour continuously, no repetitive bending, no working overhead, no kneeling, lifting limits 20, 25 pounds."

Dr. Yates, the neurological surgeon who treated Ms. Ortiz from February 3, 1989 until April 12, 1990, released her to work with the limitations that she should not carry more than 20 pounds on a repetitive basis nor should she bend or stoop more than 12 times per hour. In response to a question asked him by claimant's attorney, Dr. Yates testified that Ms. Ortiz is not in need of home help. Dr. Yates further found that certain complaints made by Ms. Ortiz were not physically consistent with her medical condition.

Ms. Ortiz presented her own testimony, as well as that of her son and daughter-in-law. The substance of this testimony was that the son and daughter-in-law spend eight hours a day and one hour at night helping the claimant. They feed her, help her to the bathroom, help with bathing and dressing, give her medication, assist her in walking, and take her to the doctor.

In a post-hearing conference, the JCC accurately summarized the evidence that had been presented before her on the issue of attendant care:

[T]he problem is, in this case, that there is no doctor recommending or explaining why she feels the need for attendant care, but the family has apparently been rendering it for a period of time. Yates doesn't think she needs it ... Bacon ... says he doesn't know what her status was during that time. I really don't doubt that the family has been giving her this. My only problem, and I wanted to really address this to the two of you [attorney for claimant and for employer], is that there is no medical substantiation of any medical need.

* * * * * *

You know, I think she probably needs some care, just from looking at her. And I believe the daughter-in-law, that she was probably doing the care. I think the lady is not really trying the hardest I've seen of anybody to do anything for herself, but she is in therapy and she is trying to improve, I guess. She's kind of in an 'injured person' syndrome where she's pretty convinced of her own injuries. But she does have--Bacon found her to have severe back pain and gave her some pretty severe limitations of range of motions, pretty severe restrictions on her ability of time that she can get up and do things. (e.s.)

Ten days after making these statements on the record, the JCC entered an order finding that as a result of the claimant's "permanent injury, and advanced age, she is unable to adequately care for herself at home and requires assistance in dressing, bathing, ambulating with the use of a walker; transportation to and from her attending physicians and preparation of her meals."

Although the 1990 amendment to section 440.13(2)(f), Florida Statutes, Ch. 90-201, Sec. 18, Laws of Fla., which specifically requires that a physician prescribe home or custodial care is not applicable, Smith v. DRW Realty Services, 569 So.2d 462, 463, n. 1 (Fla. 1st DCA1990), the case law nonetheless requires some showing of medical necessity. The JCC's determinations

Page 424

concerning attendant care must be based on competent substantial evidence. Builders Square v. Drake, 557 So.2d 115 (Fla. 1st DCA1990). Attendant care is awardable only under that section of the Workers' Compensation Act requiring the employer to furnish certain medical services and supplies. Sec. 440.13, Fla.Stat. (Supp.1988). In addition to the medical attendance referenced in section 440.13(2)(a), quoted above, the statute also requires the employer to provide "appropriate professional or nonprofessional custodial care when the nature of the injury so requires...." Sec. 440.13(2)(d), Fla.Stat. (Supp.1988). We have interpreted the statute as requiring the employer to provide "medically necessary" benefits. Diamond R. Fertilizer v. Davis, 567 So.2d 451, 455 (Fla. 1st DCA1990). A claimant's need must be clearly established. Id. This is not to say...

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2 practice notes
  • Attitudes & Trends v. Arsuaga, No. 91-3769
    • United States
    • Court of Appeal of Florida (US)
    • April 8, 1993
    ...in this case. Compare Smith v. DRW Realty Services, 569 So.2d 462 (Fla. 1st DCA 1990), n. 1, with Jackson Manor Nursing Home v. Ortiz, 606 So.2d 422 (Fla. 1st DCA 1992) (Ervin...
  • Winn Dixie Stores, Inc. v. Frank, No. 95-589
    • United States
    • Court of Appeal of Florida (US)
    • November 21, 1995
    ...had the burden of proving that she was entitled to the care because it was medically necessary. See Jackson Manor Nursing Home v. Ortiz, 606 So.2d 422 (Fla. 1st DCA 1992). Under section 440.13(2)(g), Florida Statutes (1993), the claimant cannot meet that burden of proof without a statement ......
2 cases
  • Attitudes & Trends v. Arsuaga, No. 91-3769
    • United States
    • Court of Appeal of Florida (US)
    • April 8, 1993
    ...in this case. Compare Smith v. DRW Realty Services, 569 So.2d 462 (Fla. 1st DCA 1990), n. 1, with Jackson Manor Nursing Home v. Ortiz, 606 So.2d 422 (Fla. 1st DCA 1992) (Ervin...
  • Winn Dixie Stores, Inc. v. Frank, No. 95-589
    • United States
    • Court of Appeal of Florida (US)
    • November 21, 1995
    ...had the burden of proving that she was entitled to the care because it was medically necessary. See Jackson Manor Nursing Home v. Ortiz, 606 So.2d 422 (Fla. 1st DCA 1992). Under section 440.13(2)(g), Florida Statutes (1993), the claimant cannot meet that burden of proof without a statement ......

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