American Airlines v. Hennessey

162 So. 3d 232, 2015 Fla. App. LEXIS 2454, 2015 WL 733281
CourtDistrict Court of Appeal of Florida
DecidedFebruary 23, 2015
DocketNo. 1D14-3604
StatusPublished

This text of 162 So. 3d 232 (American Airlines v. Hennessey) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Airlines v. Hennessey, 162 So. 3d 232, 2015 Fla. App. LEXIS 2454, 2015 WL 733281 (Fla. Ct. App. 2015).

Opinion

PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) appeals the Judge of Compensation Claims’ (JCC’s) award of attendant care services for a finite period, payable to Claimant’s wife. Claimant, in his cross-appeal, challenges the amount of time specifically awarded, seeking an increase in the award. Because we find merit to two of the E/C’s challenges, we reverse in part and affirm in part.

I.

Claimant injured his right leg on September 29, 2018; specifically, Claimant suffered a torn meniscus and developed an infection in the thigh which required several hospital stays as well as a lengthy course of antibiotic medications. The E/C provided wound care by authorizing a home health nurse to attend to Claimant on a daily basis until the wound healed.

On November 19, 2013, Claimant filed a petition for benefits requesting authorization for attendant care from the date of the accident. Claimant attached to the petition an undated, hand-written note, signed by Claimant’s infectious disease specialist, Dr. Eckstein, stating that “Anne Hennessey has been taking non professional care of patient David Hennessey 24 h a day since 9/29/13 and will continue to do so until patient heals.” Subsequently, in a medical report dated May 12, 2014, Dr. Eckstein clarified that the care was needed for the time period September 29, [234]*2342013, through March 11, 2014; that 12 hours of assistance on a daily basis was medically necessary; and that Claimant needed assistance with ascending and descending stairs in his house in addition to assistance with “bathing, cooking, cleaning, and dressing type functions as well as transportation.”

In the March 19, 2014, pretrial, the E/C maintained that it was “actively investigating the prescription of attendant care and is gathering the information requested by Dr. Eckstein (prescribing physician); Claimant has received skilled wound care.” At the July 7, 2014, merits hearing, the E/C defended the claim for attendant care on grounds there was “no valid prescription for attendant care as same does not satisfy the requirements of F.S. 440.18(2)(b); if attendant care is awarded solely actual attendant care provided is awardable; attendant care for household duties are considered gratuitous and not compensable.”

At the hearing, the E/C attempted to offer into evidence the deposition of the home health nurse who provided wound care and also assessed Claimant’s ability to independently care for his personal activities of daily living. Claimant objected on grounds that the nurse was not identified on the pretrial stipulation entered into by the parties. When asked how Claimant was prejudiced by the admission of the deposition, given that Claimant’s attorney was in attendance at the deposition, the reason given was that Claimant was not aware that the deposition was going to be introduced into evidence. The JCC withheld her ruling on the objection until she had the opportunity to read the deposition.

II.

In the appealed order, the JCC directed the E/C to pay Mrs. Hennessey for the assistance provided to Claimant for 8 hours per day, 7 days per week, for the time period from September 29, 2013 through November 20, 2013, with the exception of those days Claimant was hospitalized. The JCC also directed the E/C to pay Mrs. Hennessey for the assistance provided to Claimant for 4 hours per day, 7 .days per week, for the time period November 21, 2013, through March 11, 2014, with the exception of the dates Mrs. Hen-nessey was out of the state. The JCC sustained Claimant’s objection to the admission of the nurse’s deposition, instead accepting it as a proffer.

III.

We turn first to the E/C’s challenge to the JCC’s exclusion of the nurse’s deposition. A JCC’s exclusion of evidence is reviewed for abuse of discretion. See Ryan's Family Steakhouse v. Whitlock, 886 So.2d 247, 248 (Fla. 1st DCA 2004) (holding JCC’s exclusion of witness was abuse of discretion where no prejudice to objecting party was shown, “such as surprise or unfair disadvantage”). “In the absence of other compelling circumstances, late disclosure which does not result in actual prejudice does not ordinarily warrant the exclusion of evidence. Such a sanction may be unduly harsh even when there has been a deliberate violation of local rules.” Cedar Hammock Fire Dep’t v. Bonami, 672 So.2d 892, 893 (Fla. 1st DCA 1996) (citations omitted). See also Walters v. Keebler Co., 652 So.2d 976, 977 (Fla. 1st DCA 1995) (citing Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981)), for proposition that “exclusion of an unlisted witness’ testimony is a drastic remedy which should pertain in only the most compelling circumstances”).

The JCC made no findings to explain why she “sustained” Claimant’s objection to the admission of the deposition of the home health nurse. Claimant’s pur[235]*235ported prejudice — that Claimant’s attorney was not aware that the deposition was going to be offered into evidence — does not rise to the level of “surprise or unfair disadvantage,” as described in Whitlock, 886 So.2d at 248. The facts here are analogous to those in Bonami. In Bona-mi, the claimant asserted that the late disclosure by the E/C of the vocational counselor was prejudicial. 672 So.2d at 893. The claimant’s purported prejudice was “that he was not sure who would be called to testify.” Id. The Bonami court noted that there was no actual prejudice because the claimant’s attorney was present for the interview and was provided with a copy of the counselor’s report. Id. As the claimant did not demonstrate actual prejudice, the Bonami court concluded that the JCC abused his discretion in excluding the evidence. Id. Because here, as in Bonami, the excluded evidence could have had an impact on the awarded benefits, the award is reversed and remanded for consideration of nurse’s testimony.

IV.

Should the JCC, on remand, determine that Mrs. Hennessey remains entitled to be paid for her assistance provided to Claimant, we agree with the E/C that competent substantial evidence (CSE) does not support the specific award of 8 hours a day and 4 hours a day, seven days a week, for the various periods at issue. A JCC’s award of attendant care is reviewed for CSE. See Bojangles v. Kuring, 598 So.2d 250, 251 (Fla. 1st DCA 1992) (reversing and remanding where, even though CSE supported need for care, no findings supported number of hours per day awarded).

“[Claimants have the burden of proving the quantity, quality, and duration of attendant care services claimed.” Orange Cnty. Sheriff’s Dep’t v. Perez, 541 So.2d 652, 654 (Fla. 1st DCA 1989). It is erroneous for a JCC to award attendant care without regard to the actual services performed by the caretaker. See Bojangles v. Kuring, 598 So.2d 250, 251(Fla. 1st DCA 1992). If care is not provided, it cannot be compensated.

AT & T Wireless Servs., Inc. v. Castro, 896 So.2d 828, 830-31 (Fla. 1st DCA 2005). “A blanket award of attendant care without regard to the actual performance of those services is error.” Perez, 541 So.2d at 654 (citing Perez v. Pennsuco Cement Aggregates, 504 So.2d 1274, 1275 (Fla. 1st DCA 1986)).

The JCC accepted as credible Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Perez v. Pennsuco Cement & Aggregates
504 So. 2d 1274 (District Court of Appeal of Florida, 1986)
Orange County Sheriff's Dept. v. Perez
541 So. 2d 652 (District Court of Appeal of Florida, 1989)
Walters v. Keebler Co.
652 So. 2d 976 (District Court of Appeal of Florida, 1995)
James W. Windham Builders, Inc. v. Overloop
951 So. 2d 40 (District Court of Appeal of Florida, 2007)
At & T WIRELESS SERVICES, INC. v. Castro
896 So. 2d 828 (District Court of Appeal of Florida, 2005)
Binger v. King Pest Control
401 So. 2d 1310 (Supreme Court of Florida, 1981)
Cedar Hammock Fire Dept. v. Bonami
672 So. 2d 892 (District Court of Appeal of Florida, 1996)
Morton's of Chicago, Inc. v. Lira
48 So. 3d 76 (District Court of Appeal of Florida, 2010)
Bojangles v. Kuring
598 So. 2d 250 (District Court of Appeal of Florida, 1992)
Ryan's Family Steakhouse v. Whitlock
886 So. 2d 247 (District Court of Appeal of Florida, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
162 So. 3d 232, 2015 Fla. App. LEXIS 2454, 2015 WL 733281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-airlines-v-hennessey-fladistctapp-2015.