Temps & Co. Services v. Cremeens

• Decision Date: 17 April 1992
• Docket Number: No. 91-2396,91-2396
• Citation: 597 So.2d 394
• Parties: 17 Fla. L. Weekly D1015 TEMPS & COMPANY SERVICES and Liberty Mutual Insurance Company, Appellants/Cross-Appellees, v. Donna CREMEENS, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 394

597 So.2d 394

17 Fla. L. Weekly D1015

TEMPS & COMPANY SERVICES and Liberty Mutual Insurance Company, Appellants/Cross-Appellees, v. Donna CREMEENS, Appellee/Cross-Appellant.

No. 91-2396.

District Court of Appeal of Florida First District.

April 17, 1992.

G. Dennis Lynn, Jr., of Greene & Mastry, P.A., St. Petersburg, for appellants/cross-appellees.

Peter H. Dubbeld & Joey D. Oquist, of Peter H. Dubbeld, P.A., St. Petersburg, for appellee/cross-appellant.

SHIVERS, Judge.

The employer/carrier (e/c) appeal, and claimant cross-appeals, an order of the judge of compensation claims (JCC) that, in pertinent part: 1) ordered the e/c to reimburse claimant in the sum of $6,358.63, representing the entire purchase price of a 1986 Chevrolet Camaro with automatic transmission and power steering (AT/PS), with no credit for the trade-in value of claimant's 1988 Ford Festiva; 2) made the e/c responsible for all insurance, major maintenance and repair costs of the replacement vehicle; 3) found that no attempt was made by the e/c to deliver the needed motor vehicle to claimant; and 4) allowed the e/c to choose whether to title the replacement vehicle in claimant's name, over her objection. We reverse as to the first three findings and affirm as to the issue cross-appealed concerning titling the car.

Claimant, a 36-year-old woman, sustained the amputation of four fingers on her dominant right hand on April 17, 1990, while working at Medical Technologies as a temporary employee provided by appellant Temps & Company. Her claim eventually led to a final hearing on December 7, 1990, after which the JCC issued the order resulting in this appeal/cross-appeal.

The e/c contend that the JCC erred in awarding claimant the entire purchase price of the replacement vehicle, with no credit to the e/c for the trade-in value of claimant's prior vehicle. It is undisputed that claimant has a medical need of a modified vehicle with AT/PS pursuant to section 440.13(2)(a), Florida Statutes (1989); see Stables v. Rivers, 562 So.2d 784, 786 (Fla. 1st DCA 1990). Despite the efforts of the e/c to have a special strap device made to aid claimant in shifting the gears on the Festiva, the device proved unreliable and unsafe. Mechanical modification of the vehicle was unfeasible because it had front-wheel drive.

The JCC determined that the Camaro purchased by claimant is a medical expense or apparatus, and relied on the line of decisions holding that a medical expense or apparatus is not apportionable. See, e.g., Skinner v. Florida Power Corp., 580 So.2d 615 (Fla. 1st DCA 1991); Applegate Drywall Co. v. Patrick, 559 So.2d 736 (Fla. 1st DCA 1990). We agree with the e/c that the decisional law does not support the JCC's award of the entire purchase price of the replacement vehicle.

At the time of the accident, claimant already owned an automobile. As a result of her injuries, she required a motor vehicle with AT/PS. "The test for when medical benefits may be awarded is whether the award would improve the condition caused by the accident or would aid in the recovery from the accident." Brown v. Steego Auto Parts, 585 So.2d 401, 403 (Fla. 1st DCA 1991). It was the special AT/PS options, not the Camaro itself, that met this definition of "medically necessary" components, that is, apparatus used to mitigate the effects of the injury. Section 440.13(1)(c), Florida Statutes; Stables, 562 So.2d at 785. We find that Firestone Tire & Rubber Co. v. Vaughn, 381 So.2d 740 (Fla. 1st DCA 1980) is inapposite, as the circumstances there were admittedly "highly unique" and claimant was not modifying or substituting a replacement swimming pool. Because the pool itself was the necessary medical apparatus, the costs were not apportionable. See 381 So.2d at 742.

In Skinner, the quadriplegic claimant constructed a new 2,300-square-foot, $310,000 wheelchair-accessible home. Acknowledging that Chapter 440, Florida Statutes, does not provide for apportionment of necessary costs of medical apparatus, we held the e/c responsible only for the necessary and reasonable costs of making the home wheelchair-accessible, an amount about 1/10 of the cost of the entire house. Id. at 616. The modifications were the medical apparatus that we deemed not to be apportionable. By analogy, the AT/PS options are the medical apparatus necessary to permit claimant to drive, and thereby constitute medical apparatus the cost of which should be borne by the e/c. See Fidelity & Casualty Co. of New York v. Cooper, 382 So.2d 1331 (Fla. 1st DCA 1980) (awarding reasonable and necessary costs of modification of motorcycle following loss of claimant's hand).

We find Ramada Inn South Airport v. Lamoureux, 565 So.2d 376 (Fla. 1st DCA 1990), factually similar. In that case, it was agreed that claimant needed handicapped-equipped housing, but her existing residence could not be modified as needed and constituted a safety hazard. The JCC directed the e/c either to provide claimant with a rent-free handicapped-equipped and wheelchair-accessible apartment, or to purchase for her a similarly equipped house or condominium. We reversed and remanded in part, holding that the e/c should bear responsibility only for the difference between the cost of the existing apartment and the cost of a fully-equipped residence meeting the specifications set out in the JCC's order. Id. at 377. If we had ruled according to the instant claimant's theory, claimant in Lamoureux would have been awarded the entire cost of the replacement residence, as a non-apportionable medical expense.

The e/c assert that the JCC should have awarded claimant $795, an amount that by the e/c's reckoning is the difference between the book value of claimant's Festiva ($3,500) and the most expensive ($4,295) of the three "similar" cars located through an auto search agency and offered by the e/c as potential replacement vehicles. Alternatively, the e/c suggest that the proper award is $2,500, representing the difference between the trade-in value of the Festiva and the actual cost of the Camaro.

Ordinarily an award would be based on the actual difference between the book value of the prior vehicle and the cost of a similar replacement car with the medically necessary apparatus. Given the unusual circumstances presented in the record, however, we find that an award of $2,500 as reimbursement to claimant is justified. Accordingly, we reverse that portion of the order awarding claimant the entire cost of the Camaro.

As to the requirement that the e/c bear the expenses of all insurance, major maintenance and repair costs of the replacement vehicle, we reverse on the authority of Polk County Board of Commissioners v. Varnado, 576 So.2d 833 (Fla. 1st DCA 1991). In Varnado, we found that the costs of claimant's...