FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
of Accident: February 10, 1989.
appeal from an order of Judge of Compensation Claims.
Geraldine B. Hogan, Judge.
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.
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.
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.
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.
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.
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.
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.
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