Nieves v. Dade County School Bd., 90-2584

• Decision Date: 11 June 1991
• Docket Number: No. 90-2584,90-2584
• Citation: 583 So.2d 697
• Parties: 16 Fla. L. Weekly D1572, 16 Fla. L. Weekly D2077 Francisco NIEVES, Appellant, v. DADE COUNTY SCHOOL BOARD and Gallagher Bassett Insurance, Appellees.
• Court: Florida District Court of Appeals

Page 697

583 So.2d 697

16 Fla. L. Weekly D1572, 16 Fla. L. Weekly D2077

Francisco NIEVES, Appellant, v. DADE COUNTY SCHOOL BOARD and Gallagher Bassett Insurance, Appellees.

No. 90-2584.

District Court of Appeal of Florida First District.

June 11, 1991.

On Motion for Rehearing Aug. 5, 1991.

Roberto Rigal, Jr., Levine, Busch, Schnepper & Stein, P.A., Miami, for appellant.

Steven Kronenberg, Adams, Kelley, Kronenberg & Kelley, Miami Lakes, for appellees.

PER CURIAM.

Francisco Nieves, claimant, appeals a workers' compensation order that ruled that the employer and carrier acted in bad faith in controverting his claim for permanent total disability benefits and awarded his attorney a fee for securing those benefits, but denied his attorney a fee for securing chiropractic care benefits because, "no formal claim for chiropractic care was ever filed, nor is there evidence of the need for future chiropractic care." (R. 251). Nieves contends that the record does not contain competent, substantial evidence to support these findings and that the denial of an attorney's fee for obtaining chiropractic care benefits is error. We agree and reverse.

Section 440.19(1)(d), Florida Statutes (1983), the statute in effect at the time the claim for benefits was filed in this case, required that the claim set forth "the type or nature of medical treatment sought." The claim for benefits in this case requested "remedial care and attendance." (R. 247). We are aware of no statutory provision or case decision supporting the employer and carrier's contention that the claim as stated was not sufficient to raise the issue of a claimant's need for any and all necessary remedial medical treatment, including chiropractic treatment. Furthermore, the record shows that the employer and carrier were placed on notice that claimant was specifically requesting chiropractic care. The record shows that on several occasions prior to the employer and carrier's authorization of such treatment, claimant's attorney requested that they provide claimant chiropractic treatment, and only after several requests was such care provided. The record does not support the denial of an attorney's fee for securing chiropractic care benefits on the ground that "no formal claim" for such benefits was made.

The order alternatively based denial of an attorney's fee for securing chiropractic care on the finding that there was "[no] evidence of the need for future chiropractic care." We find no record support for this finding. First, the need for continuing future chiropractic care was not in issue at the attorney's fee hearing. The employer and carrier were already providing such treatment and had not requested that the judge of compensation claims approve deauthorization or termination of such treatment. Thus, there was no need for claimant to present evidence that he needed future chiropractic care. Second, the record contains evidence that claimant needs future chiropractic care. Dr. Baum testified, in person, at the attorney's fee hearing that claimant needed and would continue to need chiropractic care at the...