Williams v. Amax Chemical Corp.

• Decision Date: 14 April 1989
• Docket Number: No. 88-872,88-872
• Citation: 14 Fla. L. Weekly 947,543 So.2d 277
• Parties: 14 Fla. L. Weekly 947 Robert WILLIAMS, Appellant/Cross-Appellee, v. AMAX CHEMICAL CORPORATION and Underwriters Adjusting Company, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 277

543 So.2d 277

14 Fla. L. Weekly 947

Robert WILLIAMS, Appellant/Cross-Appellee, v. AMAX CHEMICAL CORPORATION and Underwriters Adjusting Company, Appellees/Cross-Appellants.

No. 88-872.

District Court of Appeal of Florida First District.

April 14, 1989.

Susan W. Fox of Macfarlane, Ferguson, Allison & Kelly, Tampa, and H. Guy Smith of H. Guy Smith, P.A., Lakeland, for appellant/cross-appellee.

Richard G. Davis of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa for appellees/cross-appellants.

MINER, Judge.

This case involves the timely appeal and cross-appeal of a workers' compensation order awarding attendant care. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

At the time of his compensable accident on April 2, 1984, claimant was a 52 year old mine mechanic. He was injured when a large piece of "concrete-like" material fell on his head, shoulder and wrist. A hearing on his claim for benefits was held on June 13, 1985 and on June 27, the deputy commissioner (dc) found that the accident aggravated a pre-existing seizure disorder, awarded permanent total disability benefits but, finding that claimant could attend to his own personal needs, denied his request for attendant care. This order was not appealed.

On June 18, 1987, claimant filed a petition to modify the June 27, 1985 order, alleging that there had been a deterioration in his condition to the point where he required 24 hour a day attendant care. A hearing was held on this petition on March 24, 1988. At the hearing, claimant offered the deposition testimony of Dr. Malzone, a neurologist, and Dr. Gonzalez, a psychiatrist. Both physicians testified Mr. Williams' memory function had substantially deteriorated since the earlier hearing. At the time of his deposition in February of 1988, Dr. Malzone described claimant as like a two-year old child possessing no memory faculties for more than a few seconds. He stated that as of January 29, 1987, Mr. Williams required 24 hour per day attendant care. According to Dr. Malzone, claimant did not require skilled care but rather what amounted to babysitting "as one would do for a two-year old child".

Dr. Gonzalez testified in similar fashion that claimant needed "someone to keep an eye on him to see that he keeps out of trouble. I think that if he's left alone, he constitutes a danger to himself".

Nurse Joann Weiss, an administrator for Upjohn Healthcare Services, whose employment involved visiting persons needing care and assessing the extent of such need, also gave deposition testimony. She visited Mr. Williams on two occasions and noted a dramatic change in his condition. She found him reasonably informative and receptive in 1985 but tearful and confused in 1987. After the 1985 visit she recommended companion care. After the 1987 visit, nurse Weiss recommended a nursing assistant who could provide a more skilled level of care than could a companion. She suggested that such care be made available from 7:00 a.m. until 5:00 or 6:00 p.m. when claimant's wife of 25 years, Frances, was at work as office manager at a local Badcock furniture store. Thereafter, she recommended care during the night from 11:00 p.m.-7:00 a.m. She testified that the more skilled care could be obtained for $8.65 per hour with $5.00 per hour being paid to the worker. Companion care could be had for $7.50 per hour with the actual companion receiving $4.25 per hour.

Mrs. Frances Williams testified that she earned $240 per week plus overtime in her job and that during work hours claimant was left alone or under the not-so-watchful eye of her elderly mother who was herself experiencing health problems. She also verified the deterioration in her husband's condition since the earlier hearing. She described instances of claimant's night wandering and related incidents which could have produced tragic consequences. In July of 1987, Mrs. Williams was court appointed as her husband's guardian.

On March 30, 1988, the dc entered the order which is the subject of this appeal and cross-appeal. He found deterioration in claimant's condition which was causally related to his 1984 injury. The employer/carrier (e/c) was ordered to pay for attendant care at the rate of $4.25 per hour for four (4) hours per day, the award to run from January 29, 1987 to the present, with interest. The dc decided that the care required was in the category of housekeeping and babysitting as opposed to nursing care but offered no specifics to support his calculation of rates and hours, merely stating that "the evidence supports an award" of four (4) hours per day at $4.25 per hour.

On appeal, the claimant maintains that the dc erred in awarding only four (4) hours per day attendant care benefits and further that it was error to award $4.25 per hour companion care when the evidence supported $8.65 per hour nursing care. On cross-appeal, the e/c argued that the dc's finding that the deterioration of claimant's condition was causally related to his accident is not supported by competent, substantial evidence. They also take issue, as a matter of law, with the dc's assessment of interest on an award for attendant care services.

Since the issues raised on cross-appeal require less explication than those raised on appeal, we turn first to those issues. Finding that there is competent, substantial evidence in the record to support the dc's finding that the deterioration in Mr. Williams' condition is causally related to the compensable accident he suffered in 1984, we affirm on this issue without further comment. As to the dc's award of interest on the amount payable to claimant's wife for past services rendered, we first observe that no request for interest was made a part of claimant's petition for modification or claim for benefits. Hence, it was error for the dc to adjudicate a matter not in controversy. Moreover, our attention has not been directed to nor does our research reveal any authority for placement of interest on this type of award.

Section 440.20, Florida Statutes, which provides for interest and penalties is limited to "compensation". In Cox Oil and Sales, Inc. v. Boettcher, 410 So.2d 211 (Fla. 1st DCA 1982), we held that an award to the...