Polk County Bd. of Com'rs v. Varnado

• Decision Date: 13 March 1991
• Docket Number: No. 90-384,90-384
• Citation: 576 So.2d 833,16 Fla. L. Weekly 711
• Parties: 16 Fla. L. Weekly 711 POLK COUNTY BOARD OF COMMISSIONERS and Home Insurance Company, Appellants/Cross-Appellees, v. Emmett F. VARNADO, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 833

576 So.2d 833

16 Fla. L. Weekly 711

POLK COUNTY BOARD OF COMMISSIONERS and Home Insurance Company, Appellants/Cross-Appellees, v. Emmett F. VARNADO, Appellee/Cross-Appellant.

No. 90-384.

District Court of Appeal of Florida,

First District.

March 13, 1991.

Rehearing Denied April 18, 1991.

James H. Smith, Marlow, Shofi, Smith, Hennen, Smith & Jenkins, Tampa, for appellants, cross-appellees.

John D. Kaylor, Winter Haven and Bill McCabe, Shepherd, McCabe & Cooley, Longwood, for appellee, cross-appellant.

WOLF, Judge.

The employer/carrier (E/C) in this workers' compensation case appeals an order in which the judge of compensation claims (JCC) directed the E/C to 1) purchase a lot and build a wheelchair-accessible home for the claimant as opposed to modifying claimant's existing home; 2) provide all of claimant's monthly water, sewer and electrical charges as well as paying for the cost of one telephone in the home; 3) provide all yard and home maintenance; 4) provide the services of an interior decorator; 5) pay for all home furnishings; 6) provide one-half of the gasoline for the handicap-equipped van. The E/C asserts that the JCC also erred in finding that the claimant is entitled to have the right to select any future attendant-care provider, occupational therapist, or nurse. We find some merit in all of appellant's contentions and reverse as to those issues.

Claimant, Varnadoe, ¹ asserts on cross appeal that the JCC erred in the amount awarded for attendant-care benefits from May 29, 1972, to December 13, 1989. We find no merit in this contention and affirm as to this issue.

Claimant was involved in a compensable industrial accident in July 1969, in which a 1,500 pound mower fell on him, rendering him paralyzed from his waist down. In April, 1970, the claimant filed a claim for compensation benefits seeking modification of the home in which he was residing and some type of attendant care or home assistance. In June 1971, a hearing was held in which Judge Leonard Blankner received testimony from several doctors and therapists who had treated or seen the claimant in regard to his disability. There was a large amount of testimony received regarding the type of modifications which would be needed to his home, and the type of therapy and attendant care which would be required to meet the claimant's needs. On October 11, 1971, Judge Blankner entered his compensation order which found in part as follows:

1. Employer/carrier shall pay Aleene Varnadoe, claimant's wife, the sum of forty (40) dollars per week commencing October 31, 1969, until March 8, 1971; and at the rate of sixty (60) dollars per week until the date a substitute attendant may be obtained, as ordered subsequently, or the home modification is completed, whichever first occurs without, however, any penalty or interest.

2. Employer/carrier is required to provide funds for modification of the residence premises of Emmett F. Varnadoe and Aleene Varnadoe for the construction of a carport, a new or additional bathroom, enlargement of hallway to permit safe ingress, passage, and egress of a wheelchair; to provide ramps permitting two way entry and departure; to modify the kitchen to make the same convenient and safe for Mr. Varnadoe's use; and to construct a dressing closet and enlarge claimant's bedroom....

3. In the event Mrs. Varnadoe returns to outside employment, substitute companion-attendant care is required to be furnished so that at no time will Mr. Varnadoe be required to be in his residence without an adult for more than two hours unattended. The cost of such companion-attendant shall not exceed sixty (60) dollars per week; and such cost shall terminate either upon completion of alterations and modification of claimant's presently owned residence, or in the alternative, housing arrangements suitable to the claimant's needs are otherwise met.

Judge Blankner gave the employer/carrier an alternative wherein it could elect to advance funds for the claimant in the amount of $8,500, which the claimant was to use, together with funds from the prospective sale of his residence, solely to construct a new residence suitable to his needs as a paraplegic. The E/C appealed this decision to the Industrial Relations Commission and the claimant cross appealed. The order was affirmed. The E/C filed a petition for writ of certiorari to the supreme court which was denied. On November 16, 1972, after the appellate process concluded, the employer/carrier issued a check for $8,500 to the claimant as an "advance against future medical and for the purpose of new housing." Prior to receiving the check, the claimant and his wife borrowed money and constructed a new home with a wide entrance door, an enlarged bathroom with an elevated tub and toilet seat, and a large bedroom door. They moved into the new home on September 3, 1972. They used the proceeds of the $8,500 check to assist in paying off the debt.

On January 19, 1988, claimant filed a petition requesting, among other things, attendant care and remodeling of claimant's home. On November 15, 1988, a hearing was held on these matters. There was testimony from a number of witnesses concerning the deterioration of claimant's health and the extensive care that his wife had to provide, including being called home from her job three or four times a week to aid her husband in various functions. There was also considerable testimony concerning the inadequacy of claimant's present residence to accommodate his needs. Following the hearing, the JCC entered an order which stated his finding that the E/C had not provided the claimant a handicapped home in conformity with Judge Blankner's 1971 order. That finding was not appealed.

The order appealed herein was entered on December 13, 1990, and addressed, inter alia, Varnadoe's claims for benefits and attendant care. The first issues raised by the appellant in this appeal involve benefits awarded pursuant to section 440.13(2)(a) Florida Statutes. This section requires the employer to furnish the employee "such medically necessary remedial treatment, care and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require, including medicines, medical supplies, durable medical equipment, orthoses, prostheses, and other medically necessary apparatus." We will examine the propriety of the award of each benefit individually, following a brief discussion of the general state of the law concerning medical benefits.

The initial inquiry in determining the validity of an award of benefits pursuant to section 440.13(2)(a), Florida Statutes, is the employee's medical need for the benefit. Stables v. Rivers, 562 So.2d 784 (Fla. 1st DCA 1990). The JCC should only award those medical benefits which are determined to be a medical necessity. Diamond R. Fertilizer v. Davis, 567 So.2d 451 (Fla. 1st DCA 1990). An award of a benefit which would not improve claimant's condition or aid his recovery would be invalid. DeLong v. 3015 West Corp., 558 So.2d 108 (Fla. 1st DCA 1990). Further, prior to awarding medical benefits, the JCC must determine that the need for the benefit was necessitated by the compensable injury. Stables v. Rivers, supra.

The first point of contention herein concerns the requirement that the E/C purchase a lot and build a new home for claimant rather than modifying the existing home. The JCC based this ruling on the following:

(a) I accept the testimony of Gene R. Leedy, who testified that from an economic standpoint, it would be very poor economics to put even $10,000 into the Employee's home. Mr. Leedy testified that the home is actually of low quality construction, and that it would be more economically feasible to design a medium sized house for the Employee that serves all of his handicapped needs. Mr. Leedy further testified that it was his opinion that it would cost approximately $50,000 to make the necessary modifications to the Employee's existing home to incorporate the changes necessary to make the home a wheelchair accessible environment for the Employee.

(b) I have also taken into consideration the testimony of Luke Jarrell, a general contractor in Polk County, who testified that in his opinion, it would cost $31,377.00 to remodel the Employee's home to make it wheelchair accessible, not including the cost of adding central heating and air conditioning.

(c) I have taken into consideration the testimony of Cecil Mayse, who testified that it would cost $4,635.41 to put in central heating and air conditioning in the Employee's house, and therefore, the necessary modifications would cost $36,012.41 according to Mr. Mayse and Mr. Jarrell. These were rough estimates.

(d) I have also considered the testimony of William Beasley, a realtor in the Polk County area, who testified that there are other lots near the Employee's present house, that are for sale, at anywhere from $9,000 to $12,500.

(e) That based on the above-referenced testimony, and based on the numerous modifications that need to be made to the Employee's present existing home, I find that it would be more feasible, and in the best interest of both the Employee, and the Employer/Carrier, that the Employee have a new home constructed rather than a modification of the Employee's existing home.

The JCC then lists the specific items be required in order to provide the wheelchair-accessible environment necessary to accommodate the claimant. Among these items were criteria for the contents of a master bathroom, master bedroom, kitchen, laundry area, carport, and entrances. The E/C does not challenge the JCC's determination that special housing is a medical necessity or that the specific items listed by the JCC would be necessary to provide such an environment. Only the method of providing such a medically necessary environment is in dispute.

In Peace River Electric Corp. v. Choate, 417 So.2d 831 (Fla. 1st DCA 1982), this court...