Tri-State Motor Transit Co. v. Judy

• Decision Date: 06 August 1990
• Docket Number: No. 89-2737,TRI-STATE,89-2737
• Court: Florida District Court of Appeals
• Parties: 15 Fla. L. Weekly D2012 MOTOR TRANSIT COMPANY, and Transport Insurance Company, Appellants, v. William JUDY, and Division of Workers' Compensation, Appellees.

Page 537

566 So.2d 537

15 Fla. L. Weekly D2012

TRI-STATE MOTOR TRANSIT COMPANY, and Transport Insurance Company, Appellants, v. William JUDY, and Division of Workers' Compensation, Appellees.

No. 89-2737.

District Court of Appeal of Florida First District.

Aug. 6, 1990.

Rehearing Denied Sept. 6, 1990.

Carey L. Moreland, and George A. Helm, III of Eubanks, Hilyard, Rumbley, Meier & Lengauer, P.A., Orlando, for appellants.

Marshall S. Adler of Adler & Strickland, P.A., Orlando, for appellees.

SHIVERS, Chief Judge.

The employer/carrier (E/C) appeal parts of an order that award and quantify past attendant care benefits and quantify attorney's fees. We affirm the award of past attendant care benefits and their quantification but reverse and remand the quantification of attorney's fees.

On November 24, 1983, claimant suffered a severe, bone crushing injury when, during an attempt to close a telescoping stretch of a tractor trailer rig, his head became pinned in the trailer resulting in multiple skull fractures, cranial nerve paralysis, and a cerebral spinal fluid leak through his nose.

Beginning in January 1984, the E/C paid for various visiting nurses and paid for attendant care provided intermittently by claimant's then wife, Joyce Judy, and claimant's mother and father.

Later in 1984 claimant and Joyce Judy were divorced and claimant moved to Orlando where his mother and father helped take care of him. Subsequently, claimant married Jean Judy, a rehabilitation nurse who had been taking care of claimant, and they moved to the Seattle, Washington area. At hearing, claimant testified that Jean Judy did not get paid for her attendant care services.

Claimant and Jean Judy were separated in June 1988 and after that claimant's son provided uncompensated attendant care. Claimant eventually moved in with Bonnie Tobias who runs a small thrift shop business in the Seattle area, and at the time of hearing she was taking care of claimant's needs.

A number of doctors and counselors testified as to claimant's need for attendant care services from 1984 to present including Dr. Boll, a neuropsychologist, Dr. Ginsberg, a neurologist, Dr. O'Connor, who specializes in physical medicine and rehabilitation, and Ms. Mott, claimant's rehabilitation counselor. Their opinions constituted competent, substantial evidence upon which the Judge of Compensation Claims (JCC) could rely in awarding past attendant care benefits.

The E/C argue, essentially, that because claimant's family and outside nurses received payment for attendant care services in 1984, their and claimant's failure to request such services afterwards prejudiced them in their obligation to continuously monitor claimant's need for these services. We disagree. The focus of the notice concept to which the E/C allude is on a claimant's failure to request payment for services; whether the E/C were prejudiced by the various providers' failure to request payment for services is irrelevant.

Under section 440.13(2)(b), Fla.Stat. (1983), a claimant shall not be entitled to recover any amount personally expended for attendant care treatment unless he has requested the employer to furnish it and the employer has "failed, refused, or neglected to do so or unless the nature of the injury required such treatment ... and the employer ... having knowledge of such injury, has neglected to provide the same." Nothing in this section or in any part of the Workers' Compensation Act places the onus of requesting services on third parties, or, on the other hand, obliges the E/C to inform and monitor anyone other than the injured employee.

In Walt Disney World Co. v. Harrison, 443 So.2d 389, 393-94 (Fla. 1st DCA 1983) (citations omitted) we wrote:

Ordinarily, a claimant should know whether she needs attendant care.... But unless claimant knew that such services would be provided under the act, how could she be expected to make such a request?

... [A]n employer must offer or furnish benefits when the employer knows, or should know from facts properly and diligently investigated, that such benefits are due. 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. This obligation cannot be met unless the employer informs the injured worker of the benefits to which he or she is entitled.

(emphases supplied).

In 1984, the bulk of the E/C's attendant care payments went for care provided by non-family members, with a fraction of the payments going to claimant's wife at the time, Joyce Judy. Claimant and Joyce Judy were later divorced, and claimant received attendant care from his parents and later from other non-family attendants, none of whom were compensated by the E/C. It is understandable then that as a result of this discontinuity in caretakers, claimant's later caretakers might not have realized they were entitled to payment from the E/C.

Claimant argues that the nature of his injuries--severe trauma to the brain--precluded him from effectively understanding his entitlements under the Act. Ample expert testimony, particularly that of Dr. Boll, supports his assertion and supports the JCC's agreement with it. Even if claimant was aware in 1984 that he was entitled to attendant care benefits, the record supports the finding that claimant lacked the mental sophistication to request attendant care services from the E/C after that time.

Given claimant's pardonable imperceptiveness, the E/C's failure to diligently ascertain his needs in this case is a pointed departure from their obligation under the Act to continuously monitor, inform, and provide treatment to the claimant. Their failure is plain in light of the severity of claimant's injuries and in light of their involvement in federal litigation stemming from this accident in which they succeeded in having this accident declared a workers' compensation matter.

As to the quantum of attendant care benefits, the parties presented affidavits and memoranda of law in which they represented what the reasonable value of past attendant care benefits were. The JCC's finding of $223,434 appears to be a compromise between these representations and we see no basis, as a result, for finding an abuse of discretion. In addition, the order properly excludes all paid hospital visits as well as the period the E/C paid attendant care.

In determining the appropriate attorney's fee, section 440.34, Fla.Stat. (1983) requires that in each case the JCC consider the Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454, 458-59 (Fla.1968) factors, as set out in the statute, and it states he "may increase or decrease the attorney's fee if, in his judgment, the circumstances of the particular case warrant such action...." Fla.Stat. § 440.34(1) (1983). In this case the JCC considered each of the Lee Engineering factors at length and found no reason to depart from the statutory fee schedule. ¹ As we have discussed in other cases, the statutory fee schedule embodies a legislative intent to standardize the method for assessing fees; departures from its percentage formula should be made only in exceptional circumstances. Prestressed Decking Corp. v. Medrano, 545 So.2d 403 (Fla. 1st DCA 1989); Fumigation Department v. Pearson, 559 So.2d 587 (Fla. 1st DCA 1989). Accordingly, we find that the JCC did not abuse his discretion...