James W. Windham Builders, Inc. v. Overloop

• Citation: 951 So.2d 40
• Decision Date: 06 March 2007
• Docket Number: No. 1D06-657.,1D06-657.
• Parties: JAMES W. WINDHAM BUILDERS, INC., and FCBI/USIS, Appellants, v. Kim Van OVERLOOP, Appellee.
• Court: Florida District Court of Appeals

951 So.2d 40

JAMES W. WINDHAM BUILDERS, INC., and FCBI/USIS, Appellants, v. Kim Van OVERLOOP, Appellee.

No. 1D06-657.

District Court of Appeal of Florida, First District.

March 6, 2007.

An appeal from the Judge of Compensation Claims, Shelley H. Punancy, Judge.

Katherine A. Mockler and Kimberly A. Hill of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellants.

David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appellee.

THOMAS, J.

In this workers' compensation case, Appellant-Employer/Carrier (E/C) seeks review of an order finding it responsible for Claimant's attendant care. We agree with E/C that section 440.13(2)(b), Florida Statutes (2004), requires that a prescription be in writing before attendant care will be provided; however, because we find that Claimant's failure to provide a written prescription was caused by E/C's willful ignorance, we affirm the findings of the Judge of Compensation Claims (JCC).

Claimant severely injured his ankle in a workplace accident in April 2004, requiring emergency surgery. At the time of Claimant's hospital discharge, his treating physician did not provide a written prescription, but orally prescribed attendant care from Claimant's Wife. Claimant's Wife was responsible for assisting Claimant with daily living, including grooming, using the bathroom, preparing meals, keeping the injury clean and dry, and taking all medications. At Claimant's request, his physician did write a prescription on November 11, 2004, requiring attendant care for four hours per day for ten weeks, which was intended to be a memorialization of his initial oral prescription at the time of the injury. E/C received the prescription the next day.

On the same date that E/C received the written prescription, Claimant filed a petition for benefits requesting, inter alia, payment of attendant care to his Wife. E/C denied coverage on the grounds that section 440.13(2)(b), Florida Statutes (2004), requires an attendant care prescription not only be in writing, but also that the prescription be written before the attendant care is actually provided.

Claimant's Wife testified at the hearing that she was never advised that a prescription must be in writing before being authorized. She had had various conversations with E/C's adjuster over the previous months and relayed that she was having difficulty doing everything required of her because she "was not a medical professional." During these conversations, the topic of attendant care never came up.

The JCC entered an order holding E/C responsible for attendant care, and finding that the written prescription was sufficient to meet the statutory definition because it merely formalized the doctor's previous oral prescription. The JCC further found that "the carrier's actions in this case amount to an attempt to hide behind a wall of willful ignorance concerning claimant's needs for attendant care following his surgery." This timely appeal follows.

An award of attendant care is subject to the requirements of the statute in effect at the time the care was provided. See Socolow v. Flanigans Enters., 877 So.2d 742 (Fla. 1st DCA 2004). At the time Claimant received attendant care, section 440.13(2)(b), Florida Statutes (2004), stated the following:

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. A prescription for attendant care shall not prescribe such care retroactively.

(Emphasis added.) The JCC found that the physician's oral prescription qualified as proper authorization under the statute, as it was improper for E/C to require an actual written prescription prior to the time the attendant care was provided. We disagree.

When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction. The statute must be given its plain and obvious meaning. McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998). A court has no power to modify an unambiguous statute by judicial interpretation. Id. A plain...