ROGER ROCKETTE, APPELLANT,
v.
SPACE GATEWAY SUPPORT AND AIG CLAIMS SERVICES, INC., APPELLEES
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In this workers' compensation appeal, the court affirmed the impairment rating but reversed the denial of attendant care benefits, finding undisputed evidence supported the claimant's wife's assistance with bathing, dressing, medications, and sanitary functions. The court remanded for the judge to determine the reasonable hours expended and applicable hourly rate, as well as reconsider penalties, interest, and attorneys' fees.
The impairment rating was properly affirmed as the claimant failed to preserve the issue by not objecting at the ruling conference or filing a motion for rehearing. The denial of attendant care benefits was reversed because undisputed evidence supported the claim for assistance provided by the claimant's wife, and the treating physician's failure to prescribe such care is not determinative of entitlement to benefits.
[1] A party must adequately preserve an issue for appeal by objecting to adverse rulings or filing a motion for rehearing.
[2] Denial of attendant care benefits is reversible error when undisputed evidence supports the claim for assistance with bathing, dressing, administering medications, and sa…
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Join FLexlaw to unlock all legal intelligence“the undisputed evidence supports this claim to the extent it was based on assistance provided by the claimant's wife in bathing, dressing, administering medications and assisting with sanitary functions”
Establishes that competent, substantial evidence supported the attendant care benefits claim
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Join FLexlaw to unlock all legal intelligenceClaimant Rockette sought workers' compensation benefits including an impairment rating and attendant care benefits for periods in 2001 and 2002. The c…
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PER CURIAM.
In this workers’ compensation case, we affirm the impairment rating found by the judge of compensation claims notwithstanding the claimant’s contention that the issue of impairment was not before the judge, because the claimant failed adequately to preserve the issue. No objection was voiced at a ruling conference during which the judge summarized the evidence regarding impairment at some length and made findings on that issue; and no motion for rehearing was filed pursuant to Florida Workers’ Compensation Procedure Rule 4.141(b)(2) or Florida Administrative Code Rule 60Q-6.122(2)(b).
We do, however, reverse the denial of attendant care benefits for the periods from July 25 through August 6, 2001, and from July 26 through August 8, 2002, as not supported by competent, substantial evidence. On the contrary, the undisputed evidence supports this claim to the extent it was based on assistance provided by the claimant’s wife in bathing, dressing, administering medications and assisting with sanitary functions. See, e.g., Montgomery Ward v. Lovell, 652 So. 2d 509, 511 (Fla. 1st DCA 1995); Constr. Finishing v. Combs, 569 So. 2d 919, 920 (Fla. 1st DCA 1990). Moreover, the fact that the claimant’s treating physician did not prescribe attendant care is not, as the judge appeared to believe, determinative of the claimant’s right to recover such benefits. It is sufficient that the physician provided the necessary testimony at the hearing. Attitudes & Trends v. Arsuaga, 616 So. 2d 1103, 1103 (Fla. 1st DCA 1993). Because we reverse the denial of attendant care benefits, we must also reverse the denial of penalties, interest and attorneys’ fees.
We affirm in part, reverse in part, and remand. On remand, the judge shall revisit the attendant care issue, and make findings of fact as to the number of hours reasonably expended by the claimant’s wife for care that went beyond ordinary household duties and the hourly rate of pay for that care as provided in section 440.13(2)(b), Florida Statutes (2001). The judge shall also revisit the issue of the claimant’s entitlement to penalties, interest and attorneys’ fees.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
WEBSTER, VAN NORTWICK and POLSTON, JJ., concur.
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AT & T Wireless Servs., Inc. v. Castro, 896 So. 2d 828 (Fla. 1st DCA 2005)…877 So. 2d 742, 744 (Fla. 1st DCA 2004) (citation omitted). For purposes of this appeal then, a written prescription for attendant care was not required since physician testimony provided the required elements. See Rockette v. Space Gateway Support, 877 So. 2d 852, 853 (Fla. 1st DCA 2004); see also § 440.13(2)(b), Fla. Stat. (1997)-(2002) (E/C must provide attendant care performed at the direction and control of a physician). Section 440.13(2)(b) was amended in 2003, and now includes greater specifications f…
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Adams Bldg. Materials, Inc. v. Brooks, 892 So. 2d 527 (Fla. 1st DCA 2004)…olow v. Flanigans Enters., 877 So. 2d 742, 745 (Fla. 1st DCA 2004) (accepting physician’s testimony that he first prescribed attendant care on June 14, 2000, though claimant needed attendant care before that date); Rockette v. Space Gateway Support, 877 So. 2d 852, 853 (Fla. 1st DCA 2004) (finding that although physician did not initially prescribe attendant care, he testified at a hearing that such care was needed). . We note section 440.13(2)(b) was amended in 2003, and now includes greater specifications…
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Adamides v. City OF Miami & City of Miami Risk Mgmt., 885 So. 2d 955 (Fla. 1st DCA 2004)…he first time on appeal, the [Judge of Compensation Claims] has not been afforded an opportunity to determine the merits of [the City’s] assertion.” Abrams v. Paul, 453 So. 2d 826, 827 (Fla. 1st DCA 1984); see also Rockette v. Space Gateway Support, 877 So. 2d 852, 853 (Fla. 1st DCA 2004) (“In this workers’ compensation case ... no motion for rehearing was filed.”). “[I]t is the function of the appellate court to review errors allegedly committed by trial courts, not to entertain for the first time on appeal…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Montgomery Ward & Aetna Life & Cas. Co. v. Francoise Lovell, 652 So. 2d 509 (Fla. 1st DCA 1995)
- Attitudes & Trends & Aetna Life & Cas. Co. v. Arsuaga, 616 So. 2d 1103 (Fla. 1st DCA 1993)
- Constr. Finishing v. A.E. Combs, 569 So. 2d 919 (Fla. 1st DCA 1990)