Timothy Bowser Const. Co. v. Kowalski, 91-3230

CourtCourt of Appeal of Florida (US)
Citation605 So.2d 885
Docket NumberNo. 91-3230,91-3230
Parties17 Fla. L. Week. D2015 TIMOTHY BOWSER CONSTRUCTION COMPANY and Cigna Insurance Company, Appellants, v. Vincent KOWALSKI and Division of Workers' Compensation, Appellees.
Decision Date28 August 1992

H. George Kagan and H. Jack Miller, of Miller, Kagan & Chait, P.A., Deerfield Beach, for appellants.

Michael H. Stauder, North Palm Beach, for appellees.


The employer/carrier (e/c) appeal from a final order of the Judge of Compensation Claims (JCC) requiring the e/c to provide transportation and housing, and awarding attendant-care benefits to Claimant's parents. Claimant Kowalski, age 20, was struck by lightning in June 1989 while performing carpentry in the course and scope of employment. He sustained severe brain damage and requires around-the-clock care. We affirm that portion of the order requiring the e/c to provide transportation to and from all medically related appointments, but remand for the JCC to specify what transportation costs are reasonably medically necessary, consistent with our discussion herein and with our holdings in Marlowe v. Dogs Only Grooming, 589 So.2d 990 (Fla. 1st DCA 1991) and State, Hendry County Correctional Inst., Div. of Risk Managem't v. Hughes, 412 So.2d 922 (Fla. 1st DCA 1982). We affirm the award of housing for Claimant, but reverse that portion of the award requiring the e/c to provide a second bedroom and bathroom for Claimant's parents. See Prestressed Decking Corp. v. Medrano, 556 So.2d 406, 408-09 (Fla. 1st DCA 1989) (award of counseling for the claimant's family, although desirable and helpful to family, was beyond deputy's authority under section 440.13(2)(a), Florida Statutes, governing medical benefits "to the employee"). The attendant-care awards are affirmed.


Several provisions of the award of transportation are at issue on appeal. First, the e/c are required to provide Claimant with transportation that includes provisions for a wheelchair lift and inside storage device, such as a Bruno Lift or similar device. Second, the vehicle providing transportation must contain four doors, be equipped with child-proof locks, and have sufficient room for Claimant to be seated in the rear seat. The order specifically provided the vehicle "should be a large four door sedan or a traditional full size station wagon." Third, in addition to provisions for transportation for all medically related appointments, the e/c are to provide "transportation for the various outings that are reasonably medically necessary for the employee." The JCC interpreted this provision to include visits with friends; trips to the grocery store, the mall, the beach, the family's homes, and the movies; as well as other activities that provide Claimant "with socialization and community reintegration activities as described by Dr. Lichtblau in his testimony."

We find competent substantial evidence in the record to support the award of transportation providing a wheelchair lift and inside storage device. Likewise, we affirm the provision of a large four-door sedan or a full-size station wagon with child-proof locks and with sufficient room for safe accommodation of Claimant, who The Legislature enacted statutory law governing the issue of which transportation services relate to medical treatment. See section 440.13(2)(a) and (5), Florida Statutes (Supp.1988), effective October 1, 1988; Hughes, 412 So.2d at 923 n. 3 (e/c's duties and claimant's entitlement to benefits are fixed by statute in effect on date of accident). Subsection (2)(a) requires the e/c to furnish to a claimant "such medically necessary remedial treatment, care, and attendance by a health care provider ... including ... medically necessary apparatus."

is a large man. See section 440.13(2)(a), Florida Statutes (Supp.1988). We understand the order to mean the e/c will furnish vehicular transportation meeting the above criteria, and will retain the option of making decisions as to ownership of the vehicle. See Aino's Custom Slip Covers v. DeLucia, 533 So.2d 862, 865 (1st DCA 1988), rev. den., 544 So.2d 199 (Fla.1989); Temps & Co. Services v. Cremeens, 597 So.2d 394, 398 (Fla. 1st DCA 1992).

The claimant in Marlowe, 589 So.2d at 990, who was unable to drive, asserted that subsection (2)(a) entitled her to attendant care benefits because her family was required to provide her with transportation. We noted in that opinion:

We do not, however, read the language in section 440.13(2)(a) that attendant care services must be medically necessary to mean that attendant care benefits are authorized to a claimant for transportation services for various and sundry purposes. Supportive services such as driving the claimant to the store and other places, other than transportation necessary for medical treatment pursuant to section 440.13(6) [previously numbered 440.13(5) ], constitute quality of life activities indemnified under disability compensation benefits rather than attendant care service that is medically necessary.

Id. at 994. In the case sub judice, the JCC relied on the testimony of Dr. Lichtblau, who opined it is reasonably medically necessary for Claimant to engage in any activity in which a man of Claimant's age would normally participate. Lichtblau testified that social outings such as those activities enumerated above and in the final order relate to Claimant's need for socialization and community reintegration. Marlowe indicates the Legislature did not intend the scope of section 440.13(2)(a), Florida Statutes (Supp.1988), to encompass benefits to Claimant for transportation services relating to visits such as to the beach, the grocery store, the movies, and the mall.

Section 440.13(5), Florida Statutes (Supp.1988), provides:

An injured employee is entitled, as part of his remedial treatment, care, and attendance, to reasonable actual cost of transportation to and from the doctor's office, hospital, or other place of treatment by the most economical means of transportation available and suitable in the individual case.

Claimant alternatively defends the transportation award under this statutory provision, relying on Dr. Lichtblau's opinion that the social outings are reasonably medically necessary. We have the same vantage point as the JCC did in evaluating the deposition testimony of Dr. Lichtblau. McCabe v. Bechtel Power Corp., 510 So.2d 1056, 1059 (Fla. 1st DCA 1987). In Broadfoot v. Albert Hugo Ass'n, Inc., 478 So.2d 863, 866 (Fla. 1st DCA 1985), we held that otherwise sufficient testimony is not rendered unsatisfactory merely because the doctor testifying does not use "magic words" such as "reasonable medical probability." See Castro v. Florida Juice Div., 400 So.2d 1280, 1282 (1st DCA 1981), rev. den., 412 So.2d 465 (Fla.1982). The corollary of that holding is demonstrated in the present case, where the JCC relied on Dr. Lichtblau's opinion that recreational and social outings are a necessary part of Claimant's treatment. See Delong v. 3015 West Corp., 558 So.2d 108 (Fla. 1st DCA 1990) (affirming JCC's finding that lawn care service was not a medical necessity, despite physician's testimony that it was "medically necessary" for someone other than the claimant to mow the lawn). Dr. Lichtblau found "reasonably medically necessary" the very types of "transportation services for various and sundry purposes" such as "quality Irrespective of how salutary and beneficial such social and recreational activities might be to all persons, not just to Claimant, we are compelled by the plain language of section 440.13(2)(a) and (5), Florida Statutes (Supp.1988), to reverse that portion of the transportation award because the enumerated activities do not relate to "the reasonable actual cost of transportation for authorized medical treatment." Marlowe, 589 So.2d at 994; Medrano, 556 So.2d at 406; Mills v. Walden-Sparkman, Inc., 493 So.2d 64 (Fla. 1st DCA 1986); Hughes, 412 So.2d at 923 (Claimant's travel to parent's funeral was noncompensable transportation cost because undertaken for reasons extraneous to his industrial injuries and no different, except in degree, from travel relating to "any number of other misfortunes which we all must suffer, and which none of us may control.") On remand, the JCC is to specify what transportation costs are reasonably medically necessary, consistent with this opinion and the decisions cited herein. Likewise, the JCC is to amend the award of mileage payments to the parents for use of their personal vehicle, in light of what is determined to be reasonably medically necessary. Mobley v. Jack & Son Plumbing, 170 So.2d 41, 47-48 (Fla.1964); Polk County Bd. of Comm'rs v. Varnado, 576 So.2d 833, 840-41 (Fla. 1st DCA 1991).

of life activities" for which benefits and reimbursement were denied in Marlowe.


The e/c authorized claimant to be admitted to the Craig Institute in Denver, Colorado, in response to his family's belief Claimant would receive more effective care there than in his hometown in Florida. Claimant and his family intend to live in Denver, where he will attend St. Anthony's Adult Day Care Program under the terms of the parties' pretrial stipulation. The JCC ordered the e/c to provide Denver-area "handicap/wheelchair and head injury accessible housing in accordance with the specifications agreed upon by the parties as set forth by Craig Hospital and in accordance with the recommendations of Dr. Weintraub and Dr. Lichtblau. Said housing shall provide a minimum of two bedrooms and two bathrooms and shall be of sufficient size to accommodate the claimant and claimant's parents."

The e/c acknowledge their duty to provide claimant with "an accessible living environment." However, the e/c maintain that the JCC erred in determining a two-bedroom, two-bathroom home is a medical necessity for which the e/c must bear total responsibility. We agree, finding such an award is beyond the...

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