FRANCIE DIANA APPELLANT,
v.
HLS COMPANIES AND CNA INSURANCE COMPANIES, APPELLEES
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Francie Diana appealed a workers' compensation decision denying her permanent total disability (PTD) benefits from her physical maximum medical improvement date, denying an average weekly wage adjustment for fringe benefits, and denying attendant care. The court affirmed the decision, finding the JCC's determination that Diana was not PTD at her MMI date was supported by evidence, and that Diana failed to prove the quantity, quality, and duration of compensable attendant services.
The court affirmed the JCC's denial of PTD benefits from the physical MMI date, finding the JCC reasonably interpreted conflicting physician testimony to conclude Diana was not PTD at that time. The court affirmed the denial of the average weekly wage adjustment. While the JCC erred in two alternative grounds for denying attendant care, the court affirmed the denial based on Diana's failure to prove the quantity, quality, and duration of compensable attendant services.
[1] Permanent total disability benefits are payable from the date of administrative acceptance if the claimant fails to prove permanent total disability as of the date of max…
[2] A judge of compensation claims may resolve conflicting testimony by making a reasonable interpretation of the evidence presented.
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“In the absence of evidence that claimant was PTD on her MMI date, the JCC did not err by ruling that PTD benefits should have commenced on the date the claimant was administratively accepted as PTD.”
Establishes that the burden is on claimant to prove PTD status at the physical MMI date, and absent such evidence, benefits commence from administrative acceptance.
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Join FLexlaw to unlock all legal intelligenceFrancie Diana was injured on May 11, 1990, when she fell on muddy steps at her job site, suffering physical injuries to her leg and compensable psycho…
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DAVIS, Judge.
Francie Diana (the claimant) appeals the decision of the Judge of Compensation Claims (JCC) determining that she was not entitled to receive permanent total disability benefits earlier than the date upon which the employer and carrier (e/c) administratively accepted her as permanently totally disabled (PTD); denying her claim for an adjustment to her average weekly wage to account for asserted fringe benefits of rent and utility costs; and denying a claim for attendant care. We affirm.
The claimant, Ms. Diana, was injured on May 11, 1990. She fell on some muddy steps coming out of a trailer at her job site. There was no dispute over the compensability of her injury. She suffered physical injuries to her leg and has also incurred compensable psychological injuries. The JCC denied her claim seeking PTD benefits and supplemental benefits from the date the claimant achieved maximum medical improvement (MMI) from her physical injury. Ms. Diana bases her claim that she was PTD as of that date upon testimony of her treating physician.
However, that physician’s deposition testimony was internally inconsistent. The JCC’s order expressly resolves the conflicts in the testimony by concluding that the claimant was not PTD as of her physical MMI date; that conclusion is a reasonable interpretation of the testimony of the doctor, and is therefore supported by the evidence. In the absence of evidence that claimant was PTD on her MMI date, the JCC did not err by ruling that PTD benefits should have commenced on the date the claimant was administratively accepted as PTD. See Townsend & Bottom v. Bonds, 610 So. 2d 619 (Fla. 1st DCA 1992); Marvin v. Rewis Roofing, 553 So. 2d 314 (Fla. 1st DCA 1989).
There was also competent substantial evidence to support the decision of the JCC to deny the requested adjustment to the claimant’s average weekly wage.
The JCC denied the claim for attendant care on three alternative grounds. First, the JCC ruled that the law in effect at the time of the claimant’s injury did not permit an award of attendant care to assist with household services. That was an error. Indeed, this court recently recognized that there were numerous cases permitting such awards. Beverly Enterprises v. Collingsworth, 670 So. 2d 102 (Fla. 1st DCA 1996).
The JCC also erred by ruling that the amendment to section 440.13(2)©, adding language describing attendant care as “beyond the scope of household duties” could be applied to preclude an award for such services after the effective date of the statute without regard to the date of the claimant’s injury. The amendment became effective July 1, 1990, and the claimant’s accident was May 11, 1990. To the extent that this statutory language might be read to constitute a substantive change, it may not be applied retroactively. Sullivan v. Mayo, 121 So. 2d 424 (Fla.1960), cert. denied mem., 133 So. 2d 647 (Fla.1961).
However, the JCC properly denied this claim for attendant care based upon the alternative theory that the claimant’s proof of the quantity, quality or duration of the care requested was not sufficient. The burden is on the claimant to prove by competent, substantial evidence the quantity, quality, and duration of the compensable attendant services claimed. Perez v. Pennsuco Cement Aggregates, 504 So. 2d 1274, 1276 (Fla. 1st DCA 1986)(quoting Walt Disney World Co. v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983)).
Attendant care services are generally not compensable “when those services merely reflect a claimant’s individual choice as to ‘quality of life’ ” Beverly Enterprises v. Collingsworth, 670 So. 2d 102 (Fla. 1st DCA 1996).
Much of the attendant care sought by Claimant was for non-compensable “quality of life choices,” and the evidence was not sufficiently specific to permit a reasoned determination of how many hours of care were compensable and how many were to be devoted to non-compensable “quality of life choices.” It is clear from the record therefore, that Claimant did not meet her burden of proving the quantity, quality, and duration of the compensable attendant services claimed.
Accordingly, we affirm as to all issues.
ALLEN and KAHN, JJ., concur.
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Southwood Timber Co. & TIG Specialty Ins. v. Hicks, 959 So. 2d 318 (Fla. 1st DCA 2007)…tion Claims correctly found this case to be similar to the circumstances in Walt Disney World Company v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983). See also Beverly Enters. v. Collingsworth, 670 So. 2d 102 (Fla. 1st DCA 1996)1; Diana v. HLS Cos., 670 So. 2d 125 (Fla. 1st DCA 1996)2. Although the Judge of Compensation Claims did not err in awarding attendant care benefits in this case, the order does not clearly set forth the specific type and amount of attendant care services that should be performed in t…1 / 3
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Broadspire v. Jones, 164 So. 3d 708 (Fla. 1st DCA 2015)…TERHAUS, JJ., concur. . See Socolow v. Flanigans Enters., 877 So. 2d 742, 744 (Fla. 1st DCA 2004) (holding applicable statute for compensation award for attendant care is statute in effect at time com-pensable care is given); cf. Diana v. HLS Cos., 670 So. 2d 125, 126-27 (Fla. 1st DCA 1996) (holding 1990 statutory amendment which precluded an award of attendant care “beyond the scope of household duties” could not be applied retroactively "[t]o the extent that this statutory language might be read to constit…
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Argentina Vasquez v. Ultra Fabrics and Figa, 677 So. 2d 997 (Fla. 1st DCA 1996)…PER CURIAM. AFFIRMED. See Diana v. HLS Companies, 670 So. 2d 125, 126 (Fla. 1st DCA 1996); Townsend & Bottom v. Bonds, 610 So. 2d 619 (Fla. 1st DCA 1992); Marvin v. Rewis Roofing, 553 So. 2d 314 (Fla. 1st DCA 1989). ERVIN, DAVIS and BENTON, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sullivan v. Mayo, 121 So. 2d 424 (Fla. 1960)
- Walt Disney World Co. v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983)
- State Farm Fire & Cas. Co. v. Stiller, 553 So. 2d 314 (Fla. 1st DCA 1989)
- Perez v. Pennsuco Cement & Aggregates & Ins. Co. of N. Am., 504 So. 2d 1274 (Fla. 1st DCA 1986)
- Height v. Miami Terminal Transp. Co., 133 So. 2d 647 (Fla. 1961)
- Taylor v. Taylor, 133 So. 2d 647 (Fla. 1961)
- Townsend & Bottom & Amerisure v. Bonds, 610 So. 2d 619 (Fla. 1st DCA 1992)
- Beverly Enters. & Travelers Ins. Co. v. Collingsworth, 670 So. 2d 102 (Fla. 1st DCA 1996)