WEE WISDOM MONTESSORI SCHOOL AND COMMERCIAL UNION INSURANCE CO., APPELLANTS,
v.
PATRICIA VICKERS, APPELLEE
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The Florida District Court of Appeal reversed a workers' compensation award of retroactive housekeeping and attendant care benefits, holding that the employer and carrier had no actual or constructive knowledge of the claimant's need for such care before the claim was formally filed in 1988, and therefore could not be held liable for the extended period.
The employer and carrier did not have actual or constructive knowledge of the claimant's need for attendant care prior to April 14, 1988. The gradual development of the claimant's condition and her ability to work for two years after the injury did not put the employer and carrier on constructive notice of a need for day-to-day attendant care.
[1] An employer and carrier have a continuing obligation to furnish needed workers' compensation benefits once they know or should know they are due.
[2] Knowledge of the need for attendant care is imputed to an employer and carrier if the nature of the claimant's injury and condition are such that the need is apparent.
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Join FLexlaw to unlock all legal intelligence“Before the specific claim for attendant care was made April 14, 1988, the EC had no actual or constructive knowledge of claimant's need for such care.”
Establishes the core holding that the employer and carrier lacked knowledge of the need for attendant care prior to the formal claim.
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Join FLexlaw to unlock all legal intelligenceThe claimant sustained a serious work-related injury in 1977 requiring operations and resulting in ongoing pain and psychiatric problems. She was able…
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BARFIELD, Judge.
The employer and carrier (EC) appeal a workers’ compensation order which, inter alia, awards the claimant retroactive housekeeping and attendant care benefits from August 26, 1977 until the date the first formal claim for such benefits was filed, April 14, 1988. We agree with the EC that the Judge of Compensation Claims erred in finding that the EC knew or should have known of the claimant’s need for such care during this period.
Before the specific claim for attendant care was made April 14, 1988, the EC had no actual or constructive knowledge of claimant’s need for such care. Prior to that date, the evidence established only that claimant required attendance for a limited period immediately following her operations and that although she was experiencing ongoing pain, she had been able to return to work for at least a 2-year period. Not until after April 14, 1988 was there any discussion of claimant’s need for day-to-day attendant care unrelated to her postoperative need. Therefore, the EC did not have any express actual notice of claimant’s need for attendant care.
The EC have a continuing obligation to furnish needed benefits which they know or should know are due. Sistrunk v. City of Dunedin, 513 So. 2d 200 (Fla. 1st DCA 1987). Knowledge of the need for attendant care is imputed to the EC if the nature of the claimant’s injury and condition are such that the need is apparent. See e.g.: Honeycutt v. R.G. Butler’s Dairy, 525 So. 2d 984 (Fla. 1st DCA 1988) (Claimant sustained a herniated disc and underwent three operations, was largely confined to bed, in traction, and in need of extensive personal and medical attendant care); Sistrunk v. City of Dunedin, 513 So. 2d 200 (Fla. 1st DCA 1987) (Claimant sustained a back injury and was released from the hospital in a full body cast); Prestressed Systems v. Goff, 486 So. 2d 1378 (Fla. 1st DCA 1986) (Claimant hospitalized for 6 months with “massive” neurological injuries and brain damage; upon release claimant unable to chew and subject to tremors, which impaired his ability to walk or perform personal care, as well as cognitive impairment and loss of short term memory). In the instant case, in contrast, claimant clearly did sustain a serious and extensive injury, complicated by equally serious resulting psychiatric problems. But the extent, and the improbability of improvement, became apparent gradually. There is no basis for the EC to have known of her need for attendant care prior to the date of the claim.
In Walt Disney World Co. v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983) we noted that the EC have a continuing obligation to place needed benefits in the hands of an injured worker once they have knowledge of the injury. Once the EC informs the injured employee of his entitlement to benefits it is incumbent upon the employee to make a timely claim for those benefits needed, particularly when there is no clear indication that the EC are aware of the claimant’s need.
Accordingly the award of attendant care benefits for the period of August 26, 1977, to April 14, 1988, is REVERSED.
ZEHMER and WOLF, JJ., concur.
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Ogden Allied Servs. & The Travelers Ins. Co. v. Bryant, 647 So. 2d 195 (Fla. 1st DCA 1994)…he award of attendant care benefits. Under section 440.13(2)(b), Florida Statutes, the E/C are required to pay the employee for attendant care services, if actually needed, when requested by the employee. See Wee Wisdom Montessori School v. Vickers, 584 So. 2d 132 (Fla. 1st DCA 1991). Even in the absence of such request, the E/C must provide attendant care where the nature of claimant’s injury and the necessity of treatment are such that the employer knows or reasonably should know, from the facts properly an…
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Bristol Myers Co. & Utica Mut. Ins. Co. v. Clark, 599 So. 2d 775 (Fla. 1st DCA 1992)…ng that the employer or carrier knew or should have known about claimant’s need for attendant care before the first formal claim was filed. We, therefore, reverse the reward of retroactive attendant care. See Wee Wisdom Montessori School v. Vickers, 584 So. 2d 132 (Fla. 1st DCA 1991). On June 9, 1988, the claimant was involved in a compensable accident when his leg was caught between the bumpers of two motor vehicles. Claimant was treated in the emergency room and released with a brace on his knee. The clai…
Authorities Cited
- Walt Disney World Co. v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983)
- Prestressed Sys. & Claims Ctr. v. Goff, 486 So. 2d 1378 (Fla. 1st DCA 1986)
- Amos A. Sistrunk v. City OF Dunedin & Gallagher Bassett Ins. Servs., 513 So. 2d 200 (Fla. 1st DCA 1987)
- Honeycutt v. R.G. Butlers Dairy & Whiting Nat'l Servs., 525 So. 2d 984 (Fla. 1st DCA 1988)