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Perez v. Pennsuco Cement & Aggregates
Citations: 474 So. 2d 293; 10 Fla. L. Weekly 1704; 1985 Fla. App. LEXIS 15445Docket: No. BC-237
Court: District Court of Appeal of Florida; July 10, 1985; Florida; State Appellate Court
The workers’ compensation order denied Pedro Luis Perez's claim for future attendant care services and for care provided by his wife since August 1981. The employer and carrier argued that such care was unnecessary and that Mrs. Perez's services were gratuitous. However, the court reversed this decision, noting claimant's manganese poisoning from his employment as a welder, leading to neurological impairment and psychiatric disorders. The poisoning, which resulted in difficulties with mobility, speech, and memory, also caused acute and chronic depression, necessitating hospitalization in 1982. Claimant was deemed permanently and totally disabled in 1975, with the employer ordered to provide necessary benefits and medical care. After hospitalization, Mrs. Perez sold her salon to care for him, assisting him with daily activities and ensuring his safety. Medical professionals had prescribed 24-hour care as early as 1979 and recommended at least eight hours of daily care in 1982 due to his mental condition. Although some physicians indicated full-time care might not be therapeutically beneficial, they acknowledged the necessity of part-time care for his psychological and emotional needs. The carrier was made aware of Perez's need for attendant care since 1979, and while physical therapy was prescribed, the record lacks evidence of the carrier authorizing psychotherapy. Overall, Perez, who has been permanently disabled since 1975, has relied solely on his wife's care without any support from the carrier. Claimant's chronic depressive state was acknowledged by three physicians, with Dr. Valdez-Castillo recommending attendant care. However, the deputy commissioner concluded that the claimant did not need such care from his wife, stating that the assistance provided was not considered remedial or necessary. This conclusion lacked competent evidence and contradicted accepted testimony. Dr. Hirschman suggested a trained "facilitator" to help the claimant with daily activities, indicating a need for assistance with dressing and motivation to get out of bed. The deputy recognized the need for facilitation but denied the necessity of attendant care, despite evidence that the claimant's wife, Mrs. Perez, provided services beyond ordinary household duties, such as bathing and administering medication. According to Section 440.13 of the Florida Statutes, employers are required to provide necessary remedial treatment and attendant care. While services from a family member are usually considered gratuitous, extraordinary services can be compensable. The employer and carrier are responsible for providing attendant care when needed, even if not formally requested, especially if they are aware of the claimant's condition. The record shows that the claimant requested these services, and the employer has neglected to provide them since at least 1979. Therefore, the order was reversed due to insufficient evidence supporting the deputy's finding, and the case was remanded for further consideration of the claim for attendant care. Additionally, the deputy's finding regarding Dr. Penalvar's opinion on the necessity for care was also unsupported by the record.