Scullin v. GAMLIN SYSTEMS & TRAVELERS INS. CO.

• Decision Date: 05 March 2001
• Docket Number: No. 1D00-387.,1D00-387.
• Parties: Michael SCULLIN, Appellant, v. GAMLIN SYSTEMS and TRAVELERS INSURANCE CO., Appellees.
• Court: Florida District Court of Appeals

780 So.2d 972

Michael SCULLIN, Appellant, v. GAMLIN SYSTEMS and TRAVELERS INSURANCE CO., Appellees.

No. 1D00-387.

District Court of Appeal of Florida, First District.

March 5, 2001.

Rehearing Denied April 2, 2001.

Leslie C. Riviere of Harris & Riviere, Tampa, for Appellant.

Peter H. Dubbeld of Dubbeld & Kaelber, P.A., St. Petersburg, for Appellees.

PER CURIAM.

In this workers' compensation case, appellant challenges the denial of his claim for a new handicap-equipped van. Contrary to appellant's argument, in the absence of evidence of medical necessity accepted by the judge of compensation claims, no per se rule requires that a handicap-equipped van be provided to a claimant even though he has been rendered quadriplegic in a compensable accident. See §§ 440.13(2)(a), 440.13(5), Fla. Stat. (1989); see, e.g., Kraft Dairy Group v. Cohen, 645 So.2d 1072, 1077-78 (Fla. 1st DCA 1994); Aino's Custom Slip Covers v. DeLucia, 533 So.2d 862, 865 (Fla. 1st DCA 1988).

AFFIRMED.

BOOTH, KAHN, JJ., concur, and BROWNING, J., concurs in part and dissents in part.

BROWNING, J., concurs in part and dissents in part.

I concur with the majority as to all issues but the denial of the replacement van with a wheelchair lift to appellant, to which I dissent.

Appellant was rendered a quadriplegic in an industrial accident in 1991. Following the accident the carrier at that time purchased for appellant a van equipped with a wheelchair lift, together with other benefits such as an air conditioned, wheelchair-accessible residence. Appellant's van and wheelchair lift deteriorated to a condition that the parties agree can best be remedied by a new van and wheelchair lift if appellant is entitled to a replacement van and wheelchair lift. However, faced with a new carrier, appellant's demand for a new van and wheelchair lift was refused, and this litigation ensued. At trial, notwithstanding appellant's quadriplegia, appellant introduced expert testimony that his need for a van and wheelchair lift is a medical necessity. Appellees failed to adduce any evidence to refute such evidence, but relied on argument of their attorney and the discretion of the Judge of Compensation Claims. The Judge of Compensation Claims denied appellant's claim for the van with wheelchair lift.

I believe the Judge of Compensation Claims abused her discretion and reversibly erred by denying a new van with a wheelchair lift to appellant. This court held in Fidelity & Casualty Co. of New York v. Cooper, 382 So.2d 1331, 1332 (Fla. 1st DCA 1980), that "[w]here an industrial accident necessitates modification or substitution of an automobile in order to accommodate a wheelchair or artificial member and to restore in part a claimant's former ambulatory ability, such costs may be awarded as `other apparatus' pursuant to section 440.13(1) Fla. Stat. (1989)." (Emphasis added). This standard has been applied to authorize the furnishing of wheelchair-accessible vans to claimants in numerous cases. See Polk County Board of Commissioners v. Varnado, 576 So.2d 833 (Fla. 1st DCA 1991); Ramada Inn South Airport v. Lamoureux, 578 So.2d 48 (Fla. 1st DCA 1991); Applegate Drywall Company v. Patrick, 559 So.2d 736 (Fla. 1st DCA 1990); Edgewood Boys' Ranch Foundation v. Robinson, 451 So.2d 532 (Fla. 1st DCA 1984). In view of appellant's recognized, visible, and undisputed quadriplegia, the undisputed expert medical testimony of appellant's medical needs for a van with a wheelchair lift to restore in part his ambulatory ability, and appellees' having previously furnished appellant with a van with a wheelchair lift, it seems incredible to me and a departure from reality for the Judge of Compensation Claims to deny a van with a wheelchair lift for appellant's use. To do so on such facts is clearly an egregious abuse of discretion. Furthermore, the above...