An employer/carrier cannot hide behind a “wall of willful ignorance” to avoid providing attendant care benefits when the written prescription is not specific.
The claimant in this matter appealed the judge’s denial of attendant care. The authorized treating physician wrote a prescription for home health evaluation and attendant care, 12 hours per day for seven days a week. The claimant attached the prescription to her petition for benefits. The employer/carrier responded, stating that attendant care is authorized and that additional details would be provided under separate cover. The adjuster testified that she contacted the treating provider to ask for details, but he replied that he needed more information about the claimant’s home situation to determine specifics about how much and what type of attendant care would be needed. For approximately five months thereafter, the employer/carrier had vendors conduct three separate home visits with assessments. The last assessment occurred just a few days before the final hearing. The authorized treating provider was deposed and testified that he had to defer specifics because he did not have the home health evaluations. The court pointed out that at no time did the employer/carrier provide the doctor with the evaluations that had been performed.
On appeal, the First District Court of Appeal pointed out that the employer/carrier took conflicting positions when they said that it was authorized, but then maintained that the judge could not award attendant care because they had not received a written prescription that satisfied the statute’s requirements specifying “the time periods for such care, the level of care required and the type of assistance required.”
The judge denied the attendant care petition, finding that the plain language requirements of the statute had not been met. However, the judge noted that he felt the employer/carrier was essentially hiding behind the written prescription requirement to avoid providing the attendant care.
The First District Court of Appeal agreed with the judge that the statute requires a written prescription with certain information, but said that this does not relieve an employer/carrier of its obligation to “monitor a claimant’s injuries and provide needed benefits” or excuse any “attempt to hide behind a wall of willful ignorance.” James W Wyndham Builders, Inc. v. Overloop, 951 So.2d 40 (Fla. 1st DCA 2007).
The appellate court noted that they found it difficult to square the judge’s order denying attendant care with the legislature’s intent of quick and efficient delivery of benefits. They reversed the order on appeal and remanded it for proceedings consistent with this opinion.
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