42
Fla. L. Weekly D993dTop of Form

Workers’
compensation — Medically necessary apparatus — Home renovations — Specific
home renovations awarded by judge of compensation claims were not supported by
competent substantial evidence of medical necessity — Opinions of registered
nurse with experience and training in rehabilitation who conducted home
assessment, although arguably sufficient to show how a properly accessible
environment might be provided, were insufficient to establish medical necessity
for specific accommodation or assistance — Competent substantial evidence
supported JCC’s finding that lawn care would improve claimant’s compensable
depression and anxiety — Employer/carrier forfeited right to contest medical
necessity for attendant care, podiatrist, custom AFO brace, and evaluation of
need for specialized shoes by failing to timely respond to written request by
authorized health care provider

AT&T COMMUNICATIONS and SEDGWICK
CMS, Appellants, v. VICTORIA MURRAY ROSSO, Appellee. 1st District. Case No.
1D16-3971. Opinion filed May 2, 2017. An appeal from an order of Judge of
Compensation Claims. Geraldine B. Hogan, Judge. Date of Accident: February 10,
1989. Counsel: Thaddeus A. Harrell of Hinshaw & Culbertson LLP, Fort
Lauderdale, for Appellants. Barbara B. Wagner of Wagenheim & Wagner, P.A.,
Fort Lauderdale, and Richard B. Berman of Richard B. Berman, P.A., Lauderhill,
for Appellee.

(PER CURIAM.) The Employer/Carrier
(E/C) in this workers’ compensation case challenges the Judge of Compensation Claims’
(JCC’s) award of claims for authorization of lawn care, home renovations,
attendant care for at least four hours per day, and an evaluation and treatment
by a podiatrist together with the authorization of a custom AFO brace and an
evaluation of the need for specialized shoes. We affirm the award for lawn care
because competent, substantial evidence (CSE) supports the JCC’s finding that
such care will improve Claimant’s compensable conditions of depression and
anxiety. See Delong v. 3015 W. Corp., 558 So. 2d 108 (Fla. 1st
DCA 1990) (affirming JCC’s finding of no medical necessity for lawn care where
physician admitted that such care would not improve claimant’s condition or aid
in his recovery). We also affirm the awards for attendant care, a podiatrist,
an AFO brace, and evaluation of the need for specialized shoes because the E/C
have shown no error in the JCC’s determination that the E/C forfeited the right
to contest medical necessity for these items by failing to timely respond to a
written request by an authorized health care provider. See §
440.13(3)(d), Fla. Stat. (2016). But we reverse the award for home renovations
for the reasons that follow.

In workers’ compensation, the E/C
may be responsible for providing an accessible living environment under the
statutory requirement for the furnishing of “medically necessary apparatus.” See
Timothy Bowser Constr. Co. v. Kowalski, 605 So. 2d 885, 888 (Fla. 1st
DCA 1992) (citing § 440.13(2)(a), Fla. Stat. (Supp. 1988); Diamond R.
Fertilizer v. Davis, 567 So. 2d 451, 455 (Fla. 1st DCA 1990); Aino’s
Custom Slip Covers v. DeLucia, 533 So. 2d 862 (Fla. 1st DCA 1988)). Thus,
the issue here is whether the record contains CSE to support a finding of
medical necessity for the specific home renovations that were awarded by the
JCC.

Claimant, who was seventy-three
years of age at the time of the final hearing, sustained a workplace injury to
her low back on February 10, 1989. Following authorized spinal fusion surgery
in 2014, Claimant developed a dropped foot. She currently uses a cane to
ambulate and reports problems with balance and frequent falls. Claimant
subsequently hired Ms. Litwin, a registered nurse with rehabilitation
experience and training, to prepare a home assessment. In the home assessment
report that followed, Ms. Litwin made numerous recommendations for home
renovations including ramp access, outdoor motion sensor lighting, door
widening, smooth flooring, and kitchen/bathroom modifications. In the order on
appeal, the JCC awarded all the home renovations recommended by Ms. Litwin.

In support of her finding of medical
necessity for the renovations, the JCC stated she relied on certain evidence
from the treating psychologist and pain management physician as well as
testimony from an unauthorized orthopedic surgeon. But the evidence identified
by the JCC does not constitute CSE of the medical necessity for the numerous
home renovations awarded here. For example, the cited report from the
authorized psychologist contains a recommendation identified only as “per home
study,” which imparts no information whatsoever about the medical necessity of
any particular home renovation. The JCC also improperly relied on the testimony
from the orthopedic surgeon who only stated that he agreed with some of the
suggestions in the home assessment report, but never identified which ones.

Furthermore, the JCC misplaced her
reliance on the pain management physician’s apparent deference to the opinions
of Ms. Litwin. Ms. Litwin’s opinion testimony, while arguably sufficient to show
how a properly accessible environment may be provided, is insufficient to
establish the medical necessity for the specific accommodation or assistance
because she is not a physician. In this way, this case is analogous to DeLucia.
In DeLucia, the JCC placed Lawrence Forman & Associates, a
rehabilitation company, in charge of the claimant’s rehabilitation, home
modification, vehicle purchase, and further medical care. 533 So. 2d at 864.
The only supporting evidence for the award was the testimony of Lawrence Forman
himself. This Court reversed the sweeping scope of award, for all but the award
of rehabilitative oversight, based on the finding that “although Forman was
apparently competent to testify concerning his rehabilitation services, his
testimony was not sufficiently substantial to provide the sole support for such
a far ranging award. . . .” Id. at 863-84.

Even assuming that the authorized
pain management physician here could properly defer to Ms. Litwin regarding the
medical necessity of any home renovations, it is not entirely clear that he did
so. He was never really questioned about the specific home renovations, and
when asked generally about Ms. Litwin’s recommendations, he responded that he
believed a re-evaluation was indicated with the approval of the authorized
orthopedic surgeon who performed Claimant’s surgery. The JCC, however, did not
attempt to reconcile this testimony with her finding that the pain management
physician deferred to the existing recommendations from Ms. Litwin.

Finally, we note that the JCC
originally found insufficient evidence of medical necessity for the home
renovations, but upon rehearing reversed her finding based on Claimant’s
argument that a liberal construction in her favor should apply to this 1989
date of accident.* A liberal construction, however, does not mean the JCC must
give a claimant the “benefit of the doubt” in weighing conflicting evidence or
ignore evidence indicating a claimant is not entitled to benefits. See Uniweld
Prods., Inc. v. Lopez, 511 So. 2d 758 (Fla. 1st DCA 1987). Here, the JCC’s
explanation for changing her original ruling certainly suggests that she
reconsidered the evidence with the assumption that Claimant should be given the
“benefit of the doubt.” It is unnecessary to address that potential error
because the evidence ultimately relied upon by the JCC does not constitute CSE
of the requisite medical necessity in support the award of home renovations.

Accordingly, we AFFIRM in part the
order below, but REVERSE the award of home renovations. (LEWIS and B.L. THOMAS,
JJ., CONCUR; ROWE, J., CONCURS IN RESULT WITH OPINION.)

__________________

*In 1990, the legislature adopted
language stating that neither the facts nor the law is to be liberally
construed in favor of either party. § 440.015, Fla. Stat. (1990). This Court
previously determined that it was unnecessary to decide if this language had
any retroactive effect because the statute was “directed to precluding a [JCC]
from giving a ‘benefit of the doubt’ ” to either party “when drawing inference
from predicate facts, a practice heretofore condemned by this court in Uniweld
Prods., Inc. v. Lopez, 511 So. 2d 758 (Fla. 1st DCA 1987).” Schafrath v.
Marco Bay Resort, Ltd., 608 So. 2d 97, 104 (Fla. 1st DCA 1992).
Essentially, the Schafrath court found that the 1990 amendment did not
change the existing law. In any event, we do not need to address the reactivity
of the 1990 amendment because the E/C have not argued its application here.

__________________                                         

(ROWE, J., concurring in result.)
Under the law in effect for this date of injury, Claimant is entitled to
medically necessary remedial treatment, care, and attendance, as well as
professional or nonprofessional custodial care, as the nature of the injury may
require. See § 440.13(2)(a)-(b), Fla. Stat. (1989). The applicable case
law establishes that lawn care services may be awardable under this statutory
authority if the medical evidence shows that a claimant’s injury will improve
with the provision of services. See Delong v. 3015 W. Corp., 558
So. 2d 108 (Fla. 1st DCA 1990) (affirming denial of lawn care services where
medical evidence did not establish that avoiding yard work would improve
claimant’s compensable back injury); see also S. Indus. v. Chumney,
613 So. 2d 74, 77 (Fla. 1st DCA 1993) (affirming award of lawn care where
claimant’s medical needs included dust-free environment); Polk Cty. Bd. of
Comm’rs v. Varnado, 576 So. 2d 833, 839 (Fla. 1st DCA 1991) (affirming the
JCC’s finding of no evidence of medical necessity for lawn care under Delong).
It is this standard of medical necessity that distinguishes such services from
the “quality of life” benefits that are not awardable as medical benefits and
are more properly addressed through indemnity payments. See, e.g., Marlowe
v. Dogs Only Grooming, 589 So. 2d 990 (Fla. 1st DCA 1991) (holding that
supportive services, such as driving claimant to various non-medical places,
constitute “quality of life” activities indemnified under disability
compensation rather than attendant care). Thus, it is not sufficient for a
claimant to show that the provision of lawn care services will be beneficial to
the claimant’s overall well-being; rather, lawn care services may be awarded
only when those benefits are medically necessary and will aid in the claimant’s
recovery or improve his or her compensable injury. Delong, 558 So. 2d at
109.

Here, the authorized treating pain
management physician testified that Claimant’s compensable back injury would
not be improved by avoiding lawn care activities. The only testimony regarding
the medical necessity for the lawn care services came from Claimant’s
authorized treating psychologist who opined that a well-maintained lawn is
likely to improve Claimant’s compensable depression and anxiety. However, this
testimony did not constitute competent, substantial evidence of the medical
necessity of the lawn care services. Because the psychologist is not a
“physician” or “doctor” under the statute, she was not competent to testify as
to medical necessity. See § 440.13(1)(b), Florida Statutes (1989)
(limiting the definition of “physician” to physicians licensed under chapter
458, duly licensed osteopaths, chiropractors, podiatrists, optometrists, and
dentists). However, no objection was raised on that basis; thus, any challenge
to her qualification to express a medical opinion has not been preserved. For
this reason, I concur in the result reached by the majority in this case.