Walt Disney World Co. v. Harrison

• Decision Date: 30 December 1983
• Docket Number: No. AN-430,AN-430
• Parties: WALT DISNEY WORLD CO., Appellant, v. Dorothy Conklin HARRISON, Appellee.
• Court: Florida District Court of Appeals

Page 389

443 So.2d 389

WALT DISNEY WORLD CO., Appellant, v. Dorothy Conklin HARRISON, Appellee.

No. AN-430.

District Court of Appeal of Florida,

First District.

Dec. 30, 1983.

Lee G. Schmudde, Lake Buena Vista, for appellant.

Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.

ZEHMER, Judge.

Walt Disney World appeals a worker's compensation order awarding Dorothy Harrison attendant care benefits for the month immediately following her release from the hospital after a spinal fusion operation. Disney contends that (1) no attendant care benefits were due because claimant actually took care of herself; (2) the amount of benefits awarded was not supported by competent, substantial evidence; and (3) in any event, no remedial care benefits should be payable prior to March 1, 1982, the date of a letter to Disney from claimant's attending physician indicating the need for such care. We reverse in part on issue 2 and affirm on the remaining issues.

Claimant is a young woman who studied dancing most of her life. She was employed as a dancer at Walt Disney World for several years. She first injured her back during a dance routine on January 11, 1981. After a spinal operation, she went home to recuperate and eventually returned to work. She neither requested nor received any attendant care benefits while recuperating at home on this occasion.

On August 2, 1981, claimant sustained a second back injury when she was dropped by a fellow dancer. As a result of this injury, claimant underwent a low back spinal fusion operation on February 5, 1982, by Dr. Reddick, an orthopedic surgeon approved by Disney to provide medical treatment to claimant. On February 12, 1982, claimant was discharged from the hospital to return home and recuperate. She was instructed to wear a full body cast, which greatly restricted her body movement, for one and one-half months following her discharge from the hospital. The cast, although described as "removable," was to be worn at all times except while bathing and taking care of personal hygiene. Claimant was not advised that her worker's compensation benefits would cover necessary attendant care during this period. Claimant normally lived alone in her own home, but she had made arrangements to temporarily reside with a friend who agreed to provide her care and assistance with such things as going to the bathroom, bathing, dressing, eating, cooking, changing her bed, and other necessary daily functions that claimant was unable to perform for herself while in the cast.

Unfortunately, several days after claimant's arrival at this temporary residence, her friend was injured in an automobile accident and rendered incapable of providing any assistance to claimant. Because of her lack of financial ability, claimant did not hire anyone to provide her with needed care. Instead, claimant did what she could to care for herself. For example, being unable to walk unassisted, she had to slide off the bed or couch onto the floor and crawl to the bathroom. She could not wash herself, change her bed, nor properly feed herself. Claimant's mother, who lived in the Orlando area and held a full-time job, and another friend of the claimant came over as frequently as they could to provide assistance to claimant. Before claimant fully recovered, however, her mother became seriously ill and died. Claimant's emotional and psychological status deteriorated substantially during this period.

In a letter dated January 13, 1982, Dr. Reddick advised Disney that the claimant would be undergoing a back fusion operation. Disney, however, contends that it had no knowledge of claimant's need for attendant care until it received Dr. Reddick's letter dated March 1, 1982, wherein he explicitly advised Disney of claimant's need for such care during the period from February 12 through at least March 11, 1982. Claimant's attorney filed a claim for attendant care benefits for that entire four-week period, plus costs, interest, penalties, and attorney's fees. Disney declined to pay, and a hearing was held July 1, 1982. The deputy commissioner entered an order directing Disney to pay attendant care benefits to claimant for the described four-week period, calculated on the basis of four dollars per hour for sixteen hours each day (these being the estimated hours claimant was awake each day).

One is obviously led to inquire how this pitiful state of affairs could have come to pass and who, under the statutory scheme, should be held responsible for this tragic failure of the "self-executing system of worker's compensation" to provide for this deserving employee. We heard oral argument in this case and have devoted much time and attention to it because of our deep concern that anyone in such a helpless condition and so clearly qualified to receive attendant care should have been left to fend for herself.

Claimant argues, and the deputy agreed, that the award of attendant care benefits should be made on the basis of demonstrated need, without regard to whether such services were actually received and paid for by claimant, relying on Khawam v. Collision Clinics International, Inc., 413 So.2d 827 (Fla. 1st DCA 1982), and Coca-Cola Co.--Foods Division v. Long, 420 So.2d 900 (Fla. 1st DCA 1982).

Disney counters that the deputy erred as a matter of law in awarding any benefits because "the claimant cared for herself and actually never used the services." Rich International Airways v. Cahvasquis, 416 So.2d 902 (Fla. 1st DCA 1982). Therefore, Disney argues, the award to claimant is a prohibited windfall because the act only reimburses a claimant for the economic loss suffered. Brown v. S.S. Kresge Co., 305 So.2d 191 (Fla.1974).

We find Disney's "windfall" argument to be absolutely frivolous. There is more than sufficient competent substantial medical and lay evidence in the record to support the deputy's finding that claimant's immobility, because of her injuries and the body cast, required that she have nonskilled attendant care during this period. Thatcher Glass Mfg. Co. v. Buyna, 411 So.2d 1029 (Fla. 1st DCA 1982). Although claimant was unfortunately left on her own much of the time, the evidence also establishes that some attendant care and services were provided by claimant's friends and mother. Claimant, therefore, was entitled to recover attendant care benefits under section 440.13(1), Florida Statutes (1981). Khawam v. Collision Clinics International, supra; Coca-Cola Co.--Foods Division v. Long, supra. The decision in Rich International Airways v. Cahvasquis, supra, is consistent with this result. The Brown case involved insurance benefits provided to the claimant by her employer in addition to worker's compensation benefits and is inapposite because Disney provided no attendant care whatsoever.

On the other hand, we are unable to agree with the deputy's method for estimating the value of attendant care benefits that should be allowed. As construed in Rich International Airways v. Cahvasquis, supra, section 440.13(1) does not permit recovery of compensation for nursing or attendant care services claimant performed for herself, no matter how great the need for assistance from others may have been. The burden is on the claimant to prove by competent, substantial evidence the quantity, quality, and duration of the attendant services claimed. Thatcher Glass Mfg. Co. v. Buyna, supra. It was improper for the deputy to allow compensation for attendant care services for every hour he estimated the claimant to have been awake without...