Sistrunk v. City of Dunedin, BP-416

• Decision Date: 11 September 1987
• Docket Number: No. BP-416,BP-416
• Citation: 12 Fla. L. Weekly 2228,513 So.2d 200
• Parties: 12 Fla. L. Weekly 2228 Amos A. SISTRUNK, Appellant/Cross-Appellee, v. CITY OF DUNEDIN and Gallagher Bassett Insurance Services, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 200

513 So.2d 200

12 Fla. L. Weekly 2228

Amos A. SISTRUNK, Appellant/Cross-Appellee, v. CITY OF DUNEDIN and Gallagher Bassett Insurance Services, Appellees/Cross-Appellants.

No. BP-416.

District Court of Appeal of Florida,

First District.

Sept. 11, 1987.

Ralph J. McMurphy, of Green, Simmons, Green, Hightower & Gray, Ocala, for appellant/cross-appellee.

Thomas D. Masterson, of Masterson, Rogers, Patterson & Masterson, St. Petersburg, for appellees/cross-appellants.

ERVIN, Judge.

The claimant/appellant in this workers' compensation case appeals the deputy commissioner's (dc) determination that he was entitled to only five hours a day of attendant care benefits, and that benefits were due commencing only from the date of the filing of the claim. The employer/carrier (e/c) cross-appeals, contending that the dc erred in awarding any attendant care benefits, in that the claim was ripe for adjudication at a previous hearing, or that, in the alternative, there was no competent, substantial evidence (CSE) from which the dc could determine that $5.00 an hour was the value of the attendant care services rendered by the claimant's wife. We agree with the appellant as to the issues raised in his appeal, and reverse, but affirm the issues on cross-appeal.

The claimant injured his back while working for the e/c in July 1980. In August, a hemilaminectomy and discectomy (removal of the disc and surrounding thin layer) were performed and the claimant returned to work in October. However, in December, he again experienced acute back pain and was unable to continue work. This pain persisted for the next two years, until, in January 1983, the claimant was once more operated on, at which time a spinal fusion was performed and Harrington rods implanted. Immediately following surgery, however, the claimant suffered acute pain and numbness in the leg and genital area, and the Harrington rods were removed in an emergency procedure.

Following his release from the hospital in a full body cast, the claimant continued to have acute lower back pain and spasms in his left leg. Even after the removal of the body cast, the claimant required the assistance of his wife in showering, dressing, getting in and out of bed, walking, and other daily functions, including bathroom functions, as the surgery had rendered him incontinent.

After the filing first of a compensation claim, after which a hearing was conducted on the issue of bad faith attorney's fees, the claimant next filed a claim for the payment of wages to the wife to reimburse her for the attendant care she was providing. The dc awarded attendant care benefits, holding that the claimant's wife should be compensated at the rate of $5.00 an hour, five hours per day; the benefits were made retroactive to the date of the filing of the claim, rather, as contended by claimant, from the date he left the hospital following his last surgery.

We hold there is no CSE to support the dc's finding that the claimant was entitled only to five hours per day attendant care benefits. The claimant's wife testified that she had spent a minimum of eight hours per day during the week and fifteen hours per day on weekends in performing services for the claimant which were beyond her normal household duties. The claimant's doctors supported this testimony. Dr. Jones, an orthopedic surgeon, testified that the claimant required full-time, 24-hour-a-day attendant care services. Dr. Sypert, a neurosurgeon, opined that the claimant required such services eight hours per day. In light of this unrefuted testimony, we conclude that the claimant's wife should be compensated for no less than eight hours per day of attendant care services.

We also find that the dc erred in holding that the claimant was entitled to retroactive attendant care services only from the date of the filing of the claim. We cannot agree with the e/c that it was not given sufficient notice of the need for nursing services prior to the filing of the claim. Under the Workers' Compensation Law, an employer is under a continuing obligation, once it has knowledge of an employee's injury, to place needed benefits in the hands of the injured worker. An employer must offer or furnish benefits when the employer knows, or reasonably should know from facts properly and diligently investigated, that such benefits are due. See Prestressed Systems v. Goff, 486 So.2d 1378 (Fla. 1st DCA 1986); Walt Disney World Co. v. Harrison, 443 So.2d 389 (Fla. 1st DCA 1983). Section 440.13(2)(b), Florida Statutes, requires the employer to provide nursing care benefits, even though not...