OSVALDO LOPEZ, APPELLANT,
v.
PENNSUCO CEMENT & AGGREGATES, INC., INSURANCE COMPANY OF NORTH AMERICA AND THE DIVISION OF WORKERS' COMPENSATION, APPELLEES
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A permanently and totally disabled worker suffering from manganese poisoning appealed the denial of nursing and attendant care services. The court reversed, finding the overwhelming weight of evidence supported the worker's need for attendant care to prevent serious injury from repeated falls.
The worker is entitled to attendant care services. The employer must furnish such attendant care services as the nature of the injury and process of recovery may require, including palliative attentions to mitigate the conditions or effects of the injury. The worker need not suffer a catastrophic injury from falls before being entitled to attendant care.
[1] An employer is required to furnish attendant care services as the nature of the injury and the process of recovery may require, including palliative attentions to mitigat…
[2] A claimant suffering from a work-related injury that causes repeated falls and dizziness is entitled to attendant care services to prevent serious injury.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The employer is required to furnish such attendant care services as the nature of the injury and the process of recovery may require. This includes the palliative attentions of another to mitigate the conditions or effects of the injury to claimant.”
Establishes the employer's statutory duty to provide attendant care services necessary to mitigate the effects of work-related injuries.
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Join FLexlaw to unlock all legal intelligenceOsvaldo Lopez became permanently and totally disabled from inhaling manganese fumes at work. He experiences difficulty walking, balance problems, spee…
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PER CURIAM.
Claimant appeals an order denying his claim for nursing and attendant care services. He contends that the order does not accord with the evidence in the record. We agree and reverse.
Claimant is permanently and totally disabled as a result of the inhalation of manganese fumes in the course and scope of his employment. Because of the manganese poisoning, claimant has difficulty in walking, suffers from alterations in gait and balance, speech disorders, clumsiness of movements, and an expressionless face. In the morning, his wife helps him out of bed, helps him attend to personal functions, assists him in dressing, fixes his food, and puts out his medicine. Sometimes after his wife leaves for work, he feels so bad he is unable to get up and eat his lunch, take his medicine, or go to the bathroom. Without help, he is unable to do his physical therapy exercises which his therapist testified he must do to prevent further deterioration. On occasion, claimant has gotten dizzy, fallen on the floor, and remained there until his wife comes home from work. His wife testified she loses time from work because she has to care for her husband. Further, she corroborated her husband’s testimony concerning his falls stating that she has arrived home on several occasions and found her husband lying on the floor in a fallen position, from which he is unable to extricate himself. He has hurt himself in these falls, although not badly. Dr. Penal-var, a specialist in manganese poisoning, testified that the biggest problem with manganese poisoning patients is that they fall repeatedly. He felt claimant was deteriorating physically and mentally and that claimant needs a person to assist him continuously to prevent him from having a serious injury such as a fracture. On the basis of this record, the deputy commissioner found that the frequency of claimant’s falls does not warrant continual attendant care at this time. He recognized that at some time in the future, claimant may require someone to help him 100% of the time. However, he did not feel the evidence es tablishes this at the present time. The claim for attendant care and attorney’s fees was therefore denied.
Although the employer/carrier argue that since two physicians failed to recommend attendant care services, the deputy commissioner’s order is supported by competent substantial evidence, we think the overwhelming weight of the evidence in this record supports claimant’s need for close supervision. The employer is required to furnish such attendant care services as the nature of the injury and the process of recovery may require. This includes the palliative attentions of another to mitigate the conditions or effects of the injury to claimant. Craftsmen’s Village, Inc. v. Benach, IRC Order 2-2561 (1974), cert. den. 302 So. 2d 762 (Fla.1975). As a result of the work-related manganese poisoning, claimant is subject to spells of dizziness and repeated falls. This is a condition or effect of his injury which we feel entitles him to attendant care services. In State of Florida Department of Transportation v. Cato, IRC Order 2-3138 (1977), the IRC affirmed that portion of the deputy commissioner’s order which awarded attendant care services during that period of time in which claimant needed someone to prevent him from hurting himself (presumably by falling), to provide him with the medication he needed, and to assist him in using the bathroom and in bathing. We reject the notion that the worker’s compensation law requires that the claimant must first suffer a catastrophic additional injury from falls which stem from his disabling condition before he is entitled to any attendant care.
Accordingly, the deputy commissioner’s order is REVERSED and the cause is remanded to the deputy commissioner for reconsideration of claimant’s need for attendant care in light of the views expressed herein.
McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A. (Ret.), Associate Judge, concur.
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Prof'l Administrators & Nationwide Ins. Co. v. MacIas, 448 So. 2d 1159 (Fla. 1st DCA 1984)…are “as the nature of the injury or the process of recovery may require _” This includes not only remedial care, but also palliative treatment which mitigates the conditions or effects of the injury. See Lopez v. Pennsuco Cement and Aggregates Inc., 401 So. 2d 875 (Fla. 1st DCA 1981). Such palliative treatment for the relief of pain is awardable after claimant has attained MMI. See Verdi’s Italian Restaurant v. Campanella, 423 So. 2d 582 (Fla. 1st DCA 1982). In the present case Dr. Ferking has suggested that…
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John Barley Mem'l & Aetna Life & Cas. Co. v. Gillam, 550 So. 2d 1179 (Fla. 1st DCA 1989)…denying her claim for custodial care. We agree. That portion of the order reflects an erroneous assumption by the judge that a prerequisite of such an award is a recommendation therefor by a physician. See Lopez v. Pennsuco Cement Aggregates, Inc., 401 So. 2d 875 (Fla. 1st DCA 1981). Accordingly, we reverse that portion of the order and remand for reconsideration of the claim for custodial care. AFFIRMED in part and REVERSED in part and REMANDED. ERVIN and ZEHMER, JJ., concur. . We have been unable to fin…
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Smith v. DRW Realty Servs. & Aetna Life & Cas., 569 So. 2d 462 (Fla. 1st DCA 1990)…to the absence of a physician’s recommendation of attendant care services, such a recommendation was not a prerequisite.1 John Barley Memorial v. Gillam, 550 So. 2d 1179, 1180 (Fla. 1st DCA 1989), citing Lopez v. Pennsuco Cement & Aggregates, Inc., 401 So. 2d 875, 876 (Fla. 1st DCA 1981). In Lopez, the judge denied attendant care services, and the employer/carrier argued for affirmance in that no physician had recommended such care. This court reversed and remanded for further consideration of the claim, not…
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- Craftsmen's Vill., Inc. v. Benach, 302 So. 2d 762 (Fla. 1974)