Marlowe v. Dogs Only Grooming

• Decision Date: 13 November 1991
• Docket Number: No. 90-2994,90-2994
• Parties: 16 Fla. L. Weekly D2883 Sandra M. MARLOWE, Appellant, v. DOGS ONLY GROOMING and the Travelers Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 990

589 So.2d 990

16 Fla. L. Weekly D2883

Sandra M. MARLOWE, Appellant, v. DOGS ONLY GROOMING and the Travelers Insurance Company, Appellees.

No. 90-2994.

District Court of Appeal of Florida,

First District.

Nov. 13, 1991.

Michael Broussard and John T. Willett of De Ciccio & Broussard, P.A., Orlando, for appellant.

Donna L. Kerfoot of Lorenzen & House, Tampa, for appellees.

ZEHMER, Judge.

Sandra Marlowe appeals a workers' compensation order denying her claim for attendant care benefits and disability compensation benefits. In the appealed order, the judge of compensation claims found that claimant sustained a compensable injury when she was exposed to organophosphates while working for her employer, Dogs Only Grooming; that as a result of this exposure she was temporarily totally disabled (TTD) up to the time she began a brief period of employment as a home health aide with Upjohn Nursing; and that she continued to be TTD at the time of the hearing but that her disability was attributable to non-work-related foot problems. Based on these findings, the judge ordered the employer and carrier to pay claimant TTD benefits from the date they ceased payment up to the date she began working as a home health aide but denied claimant any disability compensation benefits after that date. The judge also denied her claim for attendant care benefits.

For the reasons now discussed, we reverse the denial of TTD benefits and affirm the denial of attendant care benefits.

I.

Claimant began working as a dog groomer for her employer on March 17, 1987. As a groomer, she was required to dip dogs in a paramite solution (flea dip) and then carry them, wet, into the kennels where she used an electric appliance to blow them dry. On one occasion, she was required to mix this insecticide solution. Claimant did not wear any protective gear while grooming the dogs, and the insecticide splashed onto her clothing, arms, and face. Claimant left her job with the employer after only twenty days because she was having a problem with her elbow, and because she was beginning to experience symptoms of insecticide poisoning such as irritated eyes and mental disorientation. Two weeks after quitting this job, she went to the employer to pick up her paycheck and her symptoms increased in intensity. She then went to see Dr. Wishek at an emergency walk-in clinic and described her symptoms. Dr. Wishek diagnosed claimant's condition as organophosphate poisoning, based on her exposure to the paramite solution.

On May 16, 1987, claimant moved to Wisconsin, where she sought treatment from Dr. Visti, a neurologist, and Dr. Konetzki, a specialist in the specialty of allergies and clinical ecology. Dr. Visti concluded that claimant had suffered toxic encephalopathy as a result of her exposure to organophosphates while working for the employer. Dr. Konetzki diagnosed claimant's condition as pesticide intoxication and also related it to her work at the dog grooming parlor.

On October 23, 1987, claimant went to work for Upjohn Nursing as a home health aide. The job entailed taking prepared dinners out of the refrigerator and feeding them to the patients, and making sure the patients were comfortable. She stated that she was able to fulfill the responsibilities of that job during her ten-day period of employment, but that she had to leave the job to have foot surgery. She briefly returned to the nursing job on December 13, 1987, but again left because of more foot problems.

Claimant testified that at the time of the hearing she was still suffering from muscle spasms in different parts of her body, an abnormal sense of smell, loss of short-term memory, dizziness, mental disorientation, skin lesions, and allergies to petroleum products, formaldehyde, and phenol. Claimant stated that she did not experience any of these symptoms prior to her job with the employer. Drs. Visti and Konetzki, in whose care claimant remained at the time of the hearing, testified that she was totally disabled as a result of her industrial exposure to organophosphates. William Orlando, a rehabilitation counselor, also testified that he evaluated claimant's case and that she was not employable due to the disabilities resulting from such exposure.

With regard to her claim for attendant care benefits, claimant stated that she cannot cook because she is afraid she might leave one of the burners on and start a fire; she cannot drive because she sometimes becomes disoriented, weaves all over the road, and cannot remember her way home; and she cannot do much of the housecleaning because of her allergies to the chemicals in most cleaning products. Claimant's husband testified to substantially the same facts on this subject. He further stated that prior to claimant's exposure to the paramite, she was mentally sharp and at one time was running three businesses, whereas now he has to make a list with her every evening of the things she has to do the next day. Valerie Denner, a registered nurse and home health care consultant whom the judge accepted as an expert in the area of attendant health care, testified that claimant needs someone to do general household chores that involve chemicals and any activity that requires driving an automobile.

In the final order, the judge found that claimant sustained a compensable injury on April 7, 1987, from exposure to organophosphates. He ordered the employer and carrier to pay certain past due medical expenses, and provide claimant treatment at a detoxification clinic in accordance with the recommendations of Dr. Konetzki. With regard to the claimant's claim for TTD benefits from July 18, 1987, the date the employer and carrier ceased paying such benefits, the Judge stated:

11. I find that the Claimant, based on the medical evidence presented, continues to be temporarily totally disabled and should be entitled to temporary total disability benefits from July 18, 1987 to the date of her employment with [Upjohn Nursing] which began on October 23, 1987 and continued until November 3, 1987. According to the Claimant's testimony, she was performing nursing home services during that time but quit because of the need for foot surgery on November 6, 1987, a condition which was unrelated to her industrial accident. I further find that based upon the Claimant's testimony she was capable of performing that type of work, but for the foot surgery could have continued to be doing the same and thus any loss of income at the present time is attributable thereto.

The judge denied claimant attendant care benefits, finding that the services that are being furnished by family members are those that should ordinarily be furnished by family members. The judge did, however, order the employer and carrier to pay claimant transportation expenses incurred in obtaining the remedial treatment they are required to furnish.

II.

We agree with claimant's first point that the judge erred in denying her claim for TTD benefits from the date she ceased her employment with Upjohn Nursing based on the rationale that she was able to perform that job for ten days and had resigned for a reason not related to her industrial accident, i.e., her foot condition. There is competent substantial evidence in the record to support the judge's finding that claimant was temporarily totally...