Pan Am. World Airways, Inc. v. Weaver, 38193

• Decision Date: 21 May 1969
• Docket Number: No. 38193,38193
• Citation: 226 So.2d 801
• Parties: PAN AMERICAN WORLD AIRWAYS, INC., Employer, and the Travelers Insurance Company, Carrier, Petitioners, v. John C. WEAVER, Employee, and the Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 801

226 So.2d 801

PAN AMERICAN WORLD AIRWAYS, INC., Employer, and the Travelers Insurance Company, Carrier, Petitioners, v. John C. WEAVER, Employee, and the Florida Industrial Commission, Respondents.

No. 38193.

Supreme Court of Florida.

May 21, 1969.

Jon Johnson, of Sands, Smalbein, Eubank, Johnson & Rosier, Daytona Beach, for petitioners.

Irvin A. Meyers of Meyers, Mooney & Langston, Orlando, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.

CARLTON, Justice.

Respondent was involved in an admittedly compensable accident which left him permanently and totally disabled. He now employs an unlicensed practical nurse fulltime in the dual capacity of nurse and housekeeper. The sole issue in dispute is whether or not respondent's employer is required, under F.S. § 440.13(1), F.S.A., to assume the full cost of the attendant's services.

The statute, in material part, is as follows:

'(1) Subject to the limitations specified in subsection (3)(b), the employer shall furnish to the employee such remedial treatment, care and attendance under the direction and supervision of a qualified physician or surgeon, or other recognized practitioner, nurse or hospital, and for such period, as the nature of the injury or the process of recovery may require * * *.'

The treating physician was of the opinion that respondent needed some nursing assistance of a practical nature as well as general assistance in the management of his household affairs. Upon questioning, the physician stated that this assistance did not have to be rendered by a nurse. The Judge of Industrial Claims determined from the facts that the attendant's time was equally divided between nursing services and general housekeeping, and that, therefore, under the statute, the employer would have to bear only half of the attendant's expense.

The Full Commission, with one member dissenting, reversed. The majority held, in pertinent part, as follows:

'We believe the Judge of Industrial Claims erred in this respect and that he should have ordered the Carrier to pay the total amount of $40.00; with no part of the amount to be paid by the Claimant. The Claimant is permanently and totally disabled and cannot care for himself. Section 440.13(1), Florida Statutes, provides that the Employee shall be furnished with such remedial treatment, care, and attendance as the nature of the injury or process of recovery may require. The services of the practical nurse are in the nature of attendance in addition to nursing, and we think that the total amount of the practical nurse's salary should be provided by the Employer and Carrier. * * * Oolite Rock Co. v. Deese, Fla.1961, 134 So.2d 241; Formite, Inc. v. Jaynes, Decision No. 2--1657, certiorari denied without opinion in 208 So.2d 614 (1968).'

The dissenting member would have affirmed the Judge of Industrial Claims in toto on the authority of South Coast Construction Co. v. Chizauskas, 172 So.2d 442 (Fla.1965). After hearing oral arguments and carefully reviewing the records and briefs arising out of this case, we are of the opinion that the dissenting member was correct.

The facts are unfortunate, but they are not in dispute. Respondent is able to dress himself, prepare and take his own medication, feed himself, and perform bathroom functions unassisted. However, he is unable to make his bed, clean his house or do his own shopping. These activities are carried out by his attendant, who also prepares his food, does his laundry, and carries out his general correspondence. The attendant also performs the functions usually carried out by a practical nurse, such as administering medicine to respondent when he is unable, and...