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Claimant is a young woman who studied dancing most of her life


Claimant is a young woman who studied dancing most of her life. She was employed as a dancer at a famous theme park owned by the appellant Company, for several years. She first injured her back during a dance routine on January 11, 1981. After a spinal injury 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.

An source said that, claimant sustained a second back spine injury when she was dropped by a fellow dancer. As a result of this spine injury, claimant underwent a low back spinal fusion operation, by an

Queens orthopedic surgeon approved by the appellant Company to provide medical treatment to claimant. Thereafter, 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. 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, the orthopedic surgeon advised the appellant Company that the claimant would be undergoing a back fusion operation. Appellant Company, however, contends that it had no knowledge of claimant’s need for attendant care until it received the orthopedic surgeon letter dated March 1, 1982, wherein he explicitly advised appellant Company of claimant’s need for such care during the period from February 12 through at least March 11, 1982. A Lawyer said that, claimant’s attorney filed a claim for attendant care benefits for that entire four-week period, plus costs, interest, penalties, and attorney’s fees. Appellant Company declined to pay, and a hearing was held. The deputy commissioner entered an order directing appellant Company 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).

The Attorney said that appellant Company appeals a worker’s compensation order awarding appellee attendant care benefits for the month immediately following her release from the hospital after a spinal fusion operation. Appellant Company 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 the company from claimant’s attending physician indicating the need for such care.

The issue in this case is whether appellant Company is entitled to give appellee attendant and remedial care benefits for the injuries she sustained.

The Court said that, 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. Appellant Company 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.” Therefore, appellant Company argues, the award to claimant is a prohibited windfall because the act only reimburses a claimant for the economic loss suffered.

The Court finds appellant Company’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 spinal injuries and the body cast, required that she have non-skilled attendant care during this period. 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).

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. 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. 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 regard to the actual performance of services by persons other than claimant. Since there was no competent, substantial evidence to support the award on the basis of sixteen hours per day, the amount of that award must be vacated.

Claimant is, however, entitled to receive compensation for attendant care services provided by the friend with whom she temporarily lived and by her mother and other friend who came by from time to time to care for her needs. In the usual case, time spent for shopping, cooking, and performing other ordinary household services by a spouse or other family member is considered gratuitous and cannot form the basis for an award for attendant care services. But when a spouse or family member provides services that go beyond those which would normally be provided on a gratuitous basis, compensation for nursing or attendant care services may be awarded. The gratuitous services contemplated by this general rule are those which would normally be provided by family members who live with the claimant and usually perform like services for the benefit of the household. It is not the purpose of section 440.13 to burden family members with medically required nursing services and unskilled attendant care when claimant leaves the hospital and returns home.

The Staten Island Court does not believe that the care and services provided by claimant’s mother and friends fall within the above rule excluding gratuitous family services, even though such services involved shopping for food, cooking, doing laundry, and similar household services. Claimant ordinarily lived alone in her own home, and both her mother and friends substantially departed from their usual daily routine to visit her and provide special care and services required during claimant’s post-operation recovery. On remand, the deputy commissioner should determine the quantity, quality, and duration of the care and services provided by these individuals, determine the appropriate value thereof, and make a commensurate award for attendant care benefits. The deputy may take additional evidence on this issue if deemed necessary.

Finally, appellant’s contention that benefits should not be allowed prior to the orthopedic surgeon March 1 letter formally requesting attendant care is without merit. Claimant argues that appellant Company was informed by the orthopedic surgeon January 13 letter that she was to have a spinal fusion operation; thus appellant Company either knew of her need for attendant care or knew of the nature of her injury and treatment so that knowledge of her need for attendant care should be imputed to them. Appellant Company replies that the January 13 letter was not adequate notice of the prospective need for attendant care services because it did not advise them that claimant would be discharged in a body cast. They also points to the fact that claimant had previously undergone back surgery and did not request or receive such care on that occasion.

Ordinarily, a claimant should know whether she needs attendant care, and section 440.13(1) explicitly requires that the employer pay the employee for such services, if actually needed, when requested by the employee. Here, claimant made no such request. No section of the act explicitly directs an employer to inform a claimant of the employee’s rights, benefits, and obligations under the workers’ compensation act in the manner section 440.185(4) requires the Division to so inform an employee when notice of a claim is received. Nevertheless, an 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. Section 440.13(1) requires the employer to pay the claimant for attendant care services obtained by her, even though not first requested, if the nature of the injury requires such nursing services and if the employer, having knowledge of the injury, failed to provide such services. The nature of the claimant’s injury and necessary treatment may be such as to impute knowledge of claimant’s need for attendant care services to the employer. There was no error in the deputy’s finding that benefits were due from February 12, 1982.

There is also another and equally important ground for sustaining the award of benefits from February 12, 1982. The record does not show that appellant Company’s alleged failure to receive notice before the March 1 letter actually prejudiced its ability to investigate and determine the validity of claimant’s need for attendant care services. Nor has appellant Company asserted that it has been so prejudiced by claimant’s understandable failure to request care immediately upon her discharge from the hospital. Appellant Company was notified by the March 1 letter of claimant’s need for care before that need had ended, and prompt investigation by them would have readily revealed the sufficiency of the claim. In the absence of demonstrated prejudice to appellant Company, claimant’s attendant care benefits should be paid from February 12, 1982, even though not formally requested until March 1.

In view of the foregoing, the Court vacates the amount of benefits and remand for redetermination of the proper amount due consistent with this opinion. Appellee concedes, and the Court agrees, that no penalties should be assessed on this re-determined amount. In all other respects, the order is affirmed.

If you sustained spinal injuries while in the performance of your duties at work, ask your employer if you have benefits that you can use in your medication or operation. If the employer refuses to give your guaranteed benefits, seek the help of an Orlando Personal Injury Attorney and Orlando Spinal Injury Attorney in order to enforce your right. Orlando Injury Attorney at Stephen Bilkis and Associates can handle your day in Court.

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