Appeals Court Rules on Attendant Care Payments in Florida Workers’ Compensation Case

1100587_hospital_hand sxchu username EgilshayIn American Airlines v. Hennessey, an employee injured his right leg in a workplace accident. As a result, he was required to undergo several hospitalizations and a lengthy course of antibiotics. Due to the extent of the man’s injuries, his employer authorized him to receive attendant care in his home until he was healed.

About two months after the on-the-job accident, the man sought authorization for attendant care beginning on the date of his harm. In support of his request, the man submitted an undated handwritten note from his doctor stating that the hurt man’s wife took non-professional care of him 24 hours per day since he was injured. Later, the physician clarified that the man’s injuries merited attendant care for at least 12 hours per day for a period of about four months beginning on the date of the workplace accident. This included “bathing, cooking, cleaning, and dressing type functions as well as transportation.”

At a hearing, the man’s employer stated it was actively investigating the doctor’s prescription for attendant care. The employer also argued that it was not required to provide attendant care for household duties under Section 440.13(2)(b) of the Florida Statutes. In addition, the employer sought to offer deposition evidence from an attendant care nurse regarding the man’s ability to care for himself. After the injured man objected to the late disclosure, a Judge of Compensation Claims (“JCC”) withheld ruling on the matter until after she had the opportunity to review the proffered evidence.

Next, the JCC sustained the hurt man’s objection to the nurse’s deposition testimony without comment. After that, the JCC ordered the man’s employer to pay his wife for the assistance she provided him for eight hours per day, seven days per week for a period of one month with certain exceptions. The JCC also ordered the employer to pay the woman for four hours per day, every day of the week for a period of three months. In response, the man’s employer filed an appeal with Florida’s First District.

On appeal, the employer challenged the JCC’s decision to exclude the nurse’s deposition testimony. According to the First District, a late disclosure does not merit the exclusion of evidence unless it would result in actual prejudice. Since the JCC failed to state why she sustained the man’s objection to admitting the testimony, his objection did not rise to the level of unfair surprise, and the evidence could have an impact on his workers’ compensation award, the appellate court reversed the JCC’s decision and remanded the case for consideration of the nurse’s proffered testimony.

Additionally, the Court of Appeal stated the evidence did not support the JCC’s previous blanket award of attendant care payment for the man’s wife. The First District said the woman could only be paid for the specific amount of time she provided attendant care activities to her spouse. The court added that the man should not be allowed to submit additional evidence regarding the amount of time his wife spent caring for him because the burden of proof was on him in the first place.

If you were hurt in a Florida workplace accident, you need an experienced workers’ compensation lawyer on your side to help you protect your rights. To discuss your case with a seasoned Miami personal injury attorney today, give the experienced advocates at Friedman, Rodman & Frank, P.A. a call at (305) 448-8585 or contact us online.

Additional Resources:

American Airlines v. Hennessey, Fla: Dist. Court of Appeals, 1st Dist. 2015

More Blog Posts:

Not All Evidence is Admissible in a South Florida Car Accident Case, March 5, 2015, South Florida Personal Injury Lawyers Blog

Florida Supreme Court Says Auto Insurer Issued New Policy When it Changed the Sole Named Insured in UM Benefits Dispute, March 2, 2015, South Florida Personal Injury Lawyers Blog

Photo Credit: Egilshay, MorgueFile

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