Jeffrey P. Gale, P.A. // Employer/Carrier Cannot Stick its Head in the Ground on Attendant Care Benefits

Some injured workers are hurt so badly that they require attendant care. This benefit can take many forms, from active assistance with such things as eating and bathing, to what is called surveillance, or oversight.

As written, Florida Statute 440.13(2)(b) seemingly places the full burden on the injured worker to provide the employer/carrier (E/C) with a detailed description of his or her attendant care needs before E/C is obligated to furnish anything:

The employer shall provide appropriate professional or nonprofessional attendant care performed only at the direction and control of a physician when such care is medically necessary. The physician shall prescribe such care in writing. The employer or carrier shall not be responsible for such care until the prescription for attendant care is received by the employer and carrier, which shall specify the time periods for such care, the level of care required, and the type of assistance required.

Employers/Carriers oftentimes rely on this language to act indifferently towards providing the benefit. Thankfully, the courts don’t take kindly to this type of conduct.

In James W. Windham Builders, Inc. v. Overloop, 951 So.2d 40 (Fla. 1^st DCA 2007), the E/C argued that, based on the statute’s language, it was not obligated to investigate the need for attendant care until a written prescription is received. The court shot down this reasoning, explaining that it disregards the legislative intent of the Workers’ Compensation Law, as contained in section 440.015, to “assure the quick and efficient delivery of disability and medical benefits to an injured worker….” The court established that an employer must monitor a claimant’s injuries and cannot avoid providing attendant care by willful ignorance.

Overloop was applied in Girardin v. An Fort Myers Imports, LLC, 345 So.3d 921 (Fla. 1^st DCA 2022), to reverse a trial judge’s order denying attendant care benefits where the employer/carrier did not have a written prescription. E/C claimed that it was not obligated to provide attendant care benefits without the prescription. The court found this position as “little more than using the statute as a shield absolving them of their duty to ‘monitor a claimant’s injuries and provide needed benefits’ and an “attempt to hide behind a wall of willful ignorance.” Citing Overloop at 951 So.2d 43.

The reality is that it can be difficult for injured workers to obtain the necessary prescription. Unrepresented claimants may not know the requirements of the law and the E/C are not educating them. Likewise, the doctors may not know the law. In addition, most workers’ compensation doctors are hand-selected by the E/C and some of them, even if they know, will not do something, like write a costly prescription, that will anger the E/C.

The writer Charles Dickens had one of his characters famously declare that “the law is an ass.” While it may well be in some instances, where Overloop applies, it’s not.

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