Smith v. DRW Realty Services, 89-1104

Citation569 So.2d 462
Decision Date07 September 1990
Docket NumberNo. 89-1104,89-1104
CourtCourt of Appeal of Florida (US)
Parties15 Fla. L. Weekly D2259, 15 Fla. L. Weekly D2804, 1 NDLR P 78 Donald SMITH, Jr., Appellant, v. DRW REALTY SERVICES and Aetna Life & Casualty, Appellees.

William G. Berzak, Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellant.

Daniel DeCiccio and Maureen Moore of DeCiccio & Broussard, P.A., Orlando, for appellees.

JOANOS, Judge.

Donald Smith, Jr. has appealed from an order of the judge of compensation claims denying his claim for attendant care benefits and for attorney's fees. We reverse and remand for further proceedings.

Smith suffered a compensable injury to his low back in September 1983. In April 1985, based on a merger of this injury with a pre-existing spinal cord defect, his treating physician, Dr. Keller, declared him 100% disabled. The employer/carrier thereafter voluntarily accepted him as permanently totally disabled.

In November 1985, Dr. Keller surgically implanted electrodes in Smith's brain, which could be externally stimulated for pain control. Although he had functioned independently prior to the surgery, Smith thereafter moved to Texas to receive assistance with household and personal services from his parents. In June 1987, Smith sought and the employer/carrier authorized care by an osteopath, Dr. Siewart.

Siewart testified that, from June 1987 until August 1988, Smith's physical and psychiatric conditions necessitated 24-hour per day attendant care, although he qualified this opinion by deferring to Dr. Keller on the subject.

In December 1987, Smith returned to Florida to consult Dr. Keller regarding his brain implants, which were no longer working. Keller at that time believed that Smith was "psychotic and incapable of self management," and that he "would think Smith needed attendant care psychiatrically." However, Keller deferred to Smith's psychiatrist on the issue, and was himself adamant that Smith's physical condition did not require attendant care.

Keller performed further brain surgery in March 1988 to replace the non-functioning electrodes, and did not thereafter treat Smith. However, Keller returned him to Texas with the recommendation that he consult a psychiatrist. Pursuant to that recommendation, Smith consulted Dr. Freund from May to November 1988. Freund completely disagreed with Dr. Keller, finding that Smith suffered, not from a psychiatric condition, but from the "medical" condition of "chronic pain syndrome." Freund found no need for psychiatric attendant care, and while he felt that such care might be physically necessary, stated that he would defer to Dr. Keller on the issue.

Smith filed the instant claim for attendant care in August 1988. After a January 1989 hearing, the judge entered his order denying the claim, relying primarily on the lack of medical testimony on the necessity for attendant care. He acknowledged that all of Smith's doctors had testified to a need for attendant care, but rejected those opinions in that none of the doctors had found such a need in his own speciality. The judge also cited as a reason to deny the claim Smith's failure to request attendant care from the employer/carrier.

With regard to the absence of a physician's recommendation of attendant care services, such a recommendation was not a prerequisite. 1 John Barley Memorial v. Gillam, 550 So.2d 1179, 1180 (Fla. 1st DCA 1989), citing Lopez v. Pennsuco Cement & Aggregates, Inc., 401 So.2d 875, 876 (Fla. 1st DCA 1981). In Lopez, the judge denied attendant care services, and the employer/carrier argued for affirmance in that no physician had recommended such care. This court reversed and remanded for further consideration of the claim, noting that "the overwhelming weight of the evidence in this record" supported the need for such care.

Further, an employer has 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. Sistrunk v. City of Dunedin, 513 So.2d 200, 202 (Fla. 1st DCA 1987).

Here, the employer/carrier accepted Smith as permanently totally disabled after notification by his treating physician that he was 100% disabled. Further, Smith moved to Texas to live with his parents after brain surgery necessitated by his injury, despite having previously managed on his own. While there, Smith continued to seek medical and psychiatric care, including additional brain surgery to replace malfunctioning electrodes. Finally, while none of Smith's treating physicians specifically recommended attendant care to...

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8 cases
  • Jackson Manor Nursing Home v. Ortiz, 91-2517
    • United States
    • Court of Appeal of Florida (US)
    • 4 September 1992
    ...of Fla., which specifically requires that a physician prescribe home or custodial care is not applicable, Smith v. DRW Realty Services, 569 So.2d 462, 463, n. 1 (Fla. 1st DCA1990), the case law nonetheless requires some showing of medical necessity. The JCC's determinations concerning atten......
  • City of Pembroke Pines v. Villasenor, 1D02-3885.
    • United States
    • Court of Appeal of Florida (US)
    • 5 January 2005
    ...not have notice of its potential liability until 1998 but League was not prejudiced by this lack of notice. See Smith v. DRW Realty Servs., 569 So.2d 462, 464 (Fla. 1st DCA 1990); Acme Oil Co. v. State Farm Ins. Co., 496 So.2d 150 (Fla. 1st DCA 1986); Swanigan v. Dobbs House, 442 So.2d 1026......
  • ABC Liquors, Inc. v. Acree, s. 96-2212
    • United States
    • Court of Appeal of Florida (US)
    • 27 May 1997
    ...is required to show that attendant care is "medically necessary," § 440.13(2)(b), Fla. Stat. (1995), see Smith v. DRW Realty Servs., 569 So.2d 462, 464 n. 1 (Fla. 1st DCA 1990)(discussing predecessor provisions), such opinion testimony rests on a factual predicate. Cf. Ate Fixture Fab v. Wa......
  • Attitudes & Trends v. Arsuaga, 91-3769
    • United States
    • Court of Appeal of Florida (US)
    • 8 April 1993
    ...limited construction, section 440.13(2)(f), Florida Statutes (Supp.1990), is applicable in this case. Compare Smith v. DRW Realty Services, 569 So.2d 462 (Fla. 1st DCA 1990), n. 1, with Jackson Manor Nursing Home v. Ortiz, 606 So.2d 422 (Fla. 1st DCA 1992) (Ervin ...
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