FAVORS v. WALGREEN CO

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Docket Number

No. 89-1598.

Attorney(S)

Emil Jaczynski, Fort Lauderdale, for appellant. Anthony J. Beisler, III, of Beisler Beisler, Fort Lauderdale, for appellees.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

Vivian Favors, the claimant, appealed a final workers' compensation order rendered by the Judge of Compensation Claims, Joseph F. Hand. The order denied her claims for full-time attendant care, retroactive attendant care payments, attorney's fees, and costs. The appeal challenges these denials based on evidence regarding her need for attendant care and the obligations of the employer and carrier.

Legal Issues Presented

Whether the claimant was entitled to more than two hours per day of future attendant care benefits.
Whether the employer and carrier had notice and an obligation to provide attendant care benefits prior to the claimant’s formal claim.
Whether the claimant was entitled to retroactive attendant care benefits.
Whether the claimant was entitled to attorney's fees and costs under Florida Statutes sections 440.34(3) and 440.34(3)(a) (1987).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Walt Disney World v. Harrison, 443 So.2d 389 (Fla. 1st DCA 1983)	Established that authorization of medical equipment (wheelchair) gives notice to employer and carrier to investigate attendant care needs.	The court relied on this precedent to determine that employer and carrier had a duty to investigate claimant's attendant care needs once the wheelchair was authorized.

Court's Reasoning and Analysis

The court found that the judge of compensation claims erred in limiting future attendant care benefits to two hours per day because uncontroverted evidence showed the claimant required at least four hours daily attendant care due to her wheelchair use since August 1988. The court further reasoned that the employer and carrier had constructive notice of claimant’s need for attendant care upon authorizing the wheelchair, which triggered their obligation to investigate and provide attendant care benefits. The denial of retroactive benefits was unsupported because the carrier’s authorization of the wheelchair constituted notice. Lastly, the court held that the claimant was entitled to attorney's fees and costs under the applicable Florida statutes because the denial of benefits was improper.

Holding and Implications

The court REVERSED the prior order and REMANDED the case with directions that the judge of compensation claims:

Order employer and carrier to pay retroactive attendant care benefits to the claimant.
Provide future attendant care benefits for no less than four hours per day, with the exact amount to be redetermined.
Award claimant attorney's fees and costs pursuant to Florida Statutes sections 440.34(3) and 440.34(3)(a) (1987).

The decision directly benefits the claimant by increasing attendant care benefits and awarding fees and costs. No new legal precedent beyond the application of existing statutory and case law was established.

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VIVIAN FAVORS, APPELLANT, v. WALGREEN COMPANY AND TRAVELERS INSURANCE COMPANY, APPELLEES.

PER CURIAM.

Vivian Favors, claimant, appeals from a final workers' compensation order denying her claim for full-time attendant care, payment for retroactive attendant care, attorney's fees, and costs. We reverse for the following reasons.

The record does not support the judge of compensation claims's finding that claimant was entitled to future attendant care benefits in the amount of only two hours per day. The uncontroverted evidence established that claimant has been required to use a wheelchair since August 1988 and that she needs at least four hours' attendant care per day. The record also fails to support the judge's finding that there was no evidence that employer and carrier should have known to provide attendant care to claimant prior to her filing a claim for such benefits. The record shows that the carrier authorized the wheelchair pursuant to claimant's authorized physician's prescription for her in August 1988. This notice gave rise to an obligation on the part of employer and carrier to properly and diligently investigate the facts to determine whether claimant was wheelchair bound and needed any form of attendant care. Cf. Walt Disney World v. Harrison, 443 So.2d 389 (Fla. 1st DCA 1983). Since the uncontroverted evidence shows that claimant has needed a wheelchair since August 22, 1988, and that she needs attendant care for at least four hours per day, we reverse with directions that the judge of compensation claims order employer and carrier to pay claimant retroactive attendant care benefits and provide future attendant care benefits. The amount of future care to be authorized shall be redetermined by the judge, but in no event shall it be less than four hours per day.

The denial of attorney's fees and costs to claimant is reversed, as she is entitled to such fees and costs under section 440.34(3) and 440.34(3)(a), Florida Statutes (1987).

REVERSED and REMANDED.

SHIVERS, C.J., and JOANOS and ZEHMER, JJ., concur.