King v. Winn Dixie Stores Inc., 92-4225
| Citation | 637 So.2d 66 |
| Decision Date | 18 May 1994 |
| Docket Number | No. 92-4225,92-4225 |
| Parties | 19 Fla. L. Weekly D1119 Philip J. KING, Appellant, v. WINN DIXIE STORES INC. and Crawford & Company, Appellees. |
| Court | Court of Appeal of Florida (US) |
David E. Hill, Ocala, for appellant.
Bernard J. Zimmerman and Derrick E. Cox of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellees.
In this worker's compensation case, Philip J. King appeals an order modifying a previous award of attendant care benefits from 49 to 12 hours a week, and denying attorney's fees. We reverse in part and remand for further proceedings.
Mr. King was employed as a meat cutter by Winn Dixie when he suffered a compensable industrial injury on July 30, 1988. He fell while lifting a box over the door jamb of a walk-in freezer, permanently injuring his back. In an order dated May 29, 1990, Judge of Compensation Claims Crooke ordered the E/C to pay for attendant/nursing care services beginning April 29, 1989, in the amount of 49 hours a week (7 hours a day, 7 days a week). This award was appealed by the E/C and affirmed in Winn Dixie Stores, Inc. v. King, 579 So.2d 313 (Fla. 1st DCA 1991).
A number of different doctors have seen Mr. King and testified at various times in this case. His authorized orthopedist, Dr. Stalcup, testified by deposition on October 31, 1989. In this deposition, Dr. Stalcup established the need for attendant care granted in the May 29, 1990, order by Judge Crooke. Dr. Stalcup continued to treat claimant and testified by deposition again on February 21, 1992. He testified that claimant's physical condition was unchanged but that claimant had learned to live with his chronic pain and was no longer in need of attendant care services.
In the order on appeal, Judge of Compensation Claims Hudson stated that the original order awarding 49 hours a week of attendant care benefits was based on Dr. Stalcup's first opinion and that his opinion had substantially changed. The JCC concluded that claimant's need for attendant care benefits had changed. This ruling was based in part upon the changed testimony of Dr. Stalcup, partly upon the testimony of other doctors, and in part on the candor and demeanor of the live witnesses, including claimant's family members.
One of the other doctors upon whose opinion JCC Hudson apparently relied was Dr. Kaplan, who testified in an August 1992 deposition that claimant did not need attendant care benefits. However, Dr. Kaplan also testified that he last saw claimant on January 25, 1989, after performing carpal tunnel surgery. Dr. Kaplan testified that claimant was never in need of attendant care services, beyond perhaps a week of assistance after the carpal tunnel surgery. The JCC's order does not acknowledge the fact that this opinion was rendered based solely upon treatment and examinations which ended over a year before the order of Judge Crooke initially awarding the attendant care benefits.
Dr. Batson is claimant's authorized treating chiropractor. He testified by deposition on March 5, 1992, and again on August 13, 1992. In the first deposition, Dr. Batson testified that attendant care could reasonably be reduced to seven hours a day for three days a week, based upon objective improvement seen in claimant's condition at a recent examination. In the second deposition, Dr. Batson testified that his opinion had changed because the claimant was unable to take medications for spasm, swelling or pain, leading to an increase in his symptoms. In Dr. Batson's revised opinion, the claimant was in need of assistance for 40 hours a week. He broke this down into 8 hours a week for transportation (to obtain medical care, groceries and to go to the pharmacy); 16 hours a week for housework (meals, cleaning and laundry); 4 hours per week for yard work; and 12 hours per week for medical assistance (providing ice packs, helping with TENS unit, assisting with baths, helping him dress and, when necessary, helping him to walk). Dr. Batson testified that an increase in both "subjective and objective findings" justified his changed opinion. He testified that he had not seen any improvement in claimant's condition, and that the first deposition recommending a...
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