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IMC Phosphates Co. v. Prater3/10/2005
The employer/carrier (E/C) appeal a final order of the Judge of Compensation Claims (JCC) finding compensable, pursuant to section 440.092(5), Florida Statutes (2001), the injuries suffered by claimant Lonnie Prater (Appellee) on August 20, 2002; and granting the request for nonprofessional attendant care for the period from October 4, 2001, through November 1, 2001, for two hours a day at $11.75 an hour (for a total of $658.00) for injuries sustained in the original industrial accident on October 3, 2001. Concluding that competent, substantial evidence (CSE) supports the JCC's factual findings and that the law was correctly applied to those facts, we affirm the final order.
Attendant Care Services
The original accident occurred on October 3, 2001, as Appellee was driving on a gravel/dirt road on Employer's premises and an approaching vehicle swerved from its lane and ran head-on into Appellee. Undisputedly, that accident is compensable. A day after the accident, Appellee underwent an open reduction and internal fixation of the right tibial plateau fracture and intra-operative fluoroscopy at Lakeland Regional Medical Center. When he was discharged from the medical center on the same day, Appellee was in a straight-type long leg cast and had very limited mobility. According to the October 16, 2001, post-surgery status clinical report of Dr. Vo, the board-certified orthopedic surgeon who had performed the surgery upon Appellee's right knee/leg area, Appellee "should remain always non-weightbearing on the right lower extremity." The doctor prescribed a rental wheelchair for four weeks.
At the merits hearing, the JCC heard testimony that Appellee's wife and other family members had provided attendant care services from the date Appellee came home after surgery. E/C contend there is no objective information in the medical notes or in the hospital discharge papers to have put E/C on notice of Appellee's need for attendant care. We hold that the pertinent statutes, Florida case law, and CSE in the record support the award of attendant care benefits.
Several statutes come into play regarding attendant care. Section 440.13(1)(b), Fla. Stat. (2001), defines such care:
"Attendant care" means care rendered by trained professional attendants which is beyond the scope of household duties. Family members may provide nonprofessional attendant care, but may not be compensated under this chapter for care that falls within the scope of household duties and other services normally and gratuitously provided by family members. "Family member" means a spouse, father, mother, brother, sister, child, grandchild, father-in-law, mother-in-law, aunt, or uncle.
Section 440.13(2)(b), Florida Statutes (2001), states in pertinent part:
"The employer shall provide appropriate professional or nonprofessional attendant care performed only at the direction and control of a physician when such care is medically necessary."
"Medically necessary" means any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient's diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature, except in those instances in which prior approval of [AHCA] has been obtained. [AHCA] shall adopt rules providing for such approval on a case-by-case basis when the service or supply is shown to have significan
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