STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF THE JUDGE OF COMPENSATION CLAIMS SARASOTA Debra Chuites, ) Claimant, ) ) OJCC Case No.: 05-003687DBB vs. ) ) Date of Accident: 12/22/04 Swift Transportation, and Gallagher Bassett ) Services, ) Employer/Carrier. )

FINAL COMPENSATION ORDER

This cause came before the undersigned Judge of Compensation Claims on October 17,

2005 for a final hearing on the merits of the petition for benefits filed on February 8, 2005, which

was received in this district on February 14, 2005. The claimant was present and was represented

by Josh J. Stewart, Esquire. Jamey S. Rodgers, Esquire, represented the employer/carrier.

After amendment of the pretrial stipulations at the beginning of the final hearing, the

following claims remained to be heard: temporary total disability/temporary partial disability

(TTD/TPD) benefits from 12/28/04 to 3/9/04 maximum medical improvement (MMI); attendant

care benefits from 1/5/05 to 1/25/05 for 12 hours per day, and from 1/26/05 to mid February or

MMI for 1½ hours per day at the Federal minimum wage; payment of co-pays and outstanding

medical bills: prescriptions from Walgreen’s, Deans Drugs, and Wal-Mart in the amount of

$96.90; Starke Family Medical Center in the amount of $87; Community Hospital co-pay in the

amount of $50; Community Hospital $9,909.77; and Humana Colorado in the amount of $29,003

(which includes the previous $9,909.77); compensability of the claim; and penalties, interest,

costs, and attorney’s fees.

Employer/carrier defended the claims as follows: claimant did not sustain an

injury/exposure arising out of and in the course of her employment; no indemnity benefits due or

owing; no medical benefits due or owing; claimant not subjected to a greater exposure than that

of the general public; injury does not arise out of a risk that is reasonably incidental to the

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conditions of employment; no penalties, interest, costs, or attorney’s fees due or owing;

claimant’s condition is idiopathic or personal in nature; no attendant care due or owing; and

claimant is responsible for her medical bills, as they are unrelated to employment.

The parties entered into the following stipulations:

a. There was an employer/employee relationship on the date of accident alleged of

12/22/04, employer had workers’ compensation insurance coverage in effect, and Sarasota,

Florida is the proper venue.

b. Employer/carrier did not accept claimant’s accident or injury as compensable.

c. The claimant gave timely notice of the accident and the parties received timely

notice of the pretrial and final hearing.

d. I have jurisdiction over the parties and subject matter of this claim.

e. Claimant’s base average weekly wage is $538.21 with a compensation rate of

$358.82 through 2/3/05; then fringe benefits of $89.30 per week should be included, resulting in

an average weekly wage of $627.51 and compensation rate of $418.36, effective 2/4/05.

f. If the case is compensable, claimant reached MMI 3/10/05 per Dr. Laartz with a

zero percent impairment rating.

g. No medical treatment has been authorized for claimant and no indemnity benefits

paid.

The following exhibits were received in evidence at the hearing:

Exhibit 1: Uniform Pretrial Stipulation and Pretrial Compliance Questionnaire,

which was approved by Order entered July 5, 2005, as amended at the beginning of the final

hearing.

Exhibit 2: Deposition of Debra Chuites taken on March 9, 2005.

Exhibit 3: Deposition of Debra Chuites taken on September 16, 2005.

Exhibit 4: Deposition of Charles J. Franson, Jr., D.O. taken on August 25, 2005 for

facts only.

Exhibit 5: Deposition of Karen Darricau, M.D. taken on July 25, 2005 for facts only.

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Exhibit 6: Deposition of Mary Siegrist, Medical Records Custodian for Medical

Center of Aurora, taken on August 11, 2005 for facts only.

Exhibit 7: Deposition of Brent W. Laartz, M.D. taken on October 6, 2005.

Exhibit 8: Deposition of William Hogan taken on September 14, 2005.

Exhibit 9: Deposition of Michelle Jameson taken on August 18, 2005.

Exhibit 10: Composite of medical bills and receipts, over employer/carrier’s objection

that they were not authenticated by the providers.

Employer/carrier’s request to have opinion testimony received of unauthorized providers

because it related to emergency treatment was denied, as there is no such exception to section

440.13(5)(e), Fla. Stat. (2003), which allows admission of only the opinions of expert medical

advisors (EMA), independent medical examiners (IME), or authorized treating providers into

evidence.

Claimant Debra Chuites, claimant’s husband Robert Chuites, and employer

representative William Hogan appeared and testified at the hearing. Counsel for the parties

presented oral argument and written Trial Memorandum/Hearing Information Sheet.

I have observed the candor and demeanor of the witnesses who testified before me and

have resolved all conflict in the testimony and evidence. Upon review of the evidence,

testimony, argument, and applicable law, I make the following findings of fact and conclusions

of law:

1. I have jurisdiction over the parties and subject matter of this claim, and venue is

proper in Sarasota, Florida.

2. The stipulations of the parties are approved and accepted as findings of fact.

3. Claimant, Debra Chuites, 51 years old, was employed with Swift Transportation,

employer herein, as a driver, working as a team with her husband Robert Chuites, beginning

September 2003. She and her husband left Swift in December 2003 and returned to work there

again May 2004. On the date of accident alleged of December 22, 2004, she was sleeping in the

cab of the truck while it was her husband’s turn to drive, when she was awoken from sleep by

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what she believes to be a spider bite. The area became infected and eventually claimant

underwent surgery. Employer/carrier denied compensability and has not provided medical

treatment or indemnity benefits.

4. Claimant testified at her first deposition that on December 21, 2004 she was

asleep in the sleeper berth of the truck in Memphis, Tennessee, when she was awakened at

around ten AM when she felt a bite, got up and rubbed it. She testified that she saw some little

legs but did not see the spider because she rubbed it. Claimant said that she was in the truck that

she and her husband usually drive, and they are responsible for cleaning the truck. She has not

seen spiders in the truck before, and said she would have sprayed it from one end to the other if

she had known.

Claimant later said that the bite must have been on December 22, 2004 somewhere

around Bradenton, Florida, because she was bit before she saw her mother at lunchtime in Lutz,

Florida. She consulted with her husband during the deposition, and he recalled that they were

waiting at a Wal-Mart in Bradenton for it to open so they could make a delivery. Then her

husband drove for about thirty minutes and the truck broke down. She and her husband slept at

the terminal in Ocala that night. The next morning after they were on the road, claimant told her

husband about the spider bite, and that she wasn’t feeling well. They stopped to see a doctor in

Keystone Heights, Florida, on December 23, 2004 and claimant was given Claritin and Benadryl

and some penicillin.

Claimant and her husband then made a pick up in South Carolina, and drove from there

to Georgia, Alabama, Texas, New Mexico, Arizona, Utah, and Colorado. She next saw a doctor

in Aurora, Colorado, and was hospitalized there from December 28, 2004 to January 5, 2005.

She testified that she was not allowed back on the truck without a doctor’s release, and her

husband rented a car and drove her back to Florida. She said he cleaned her wound, flushed it

out, took the gauze out and put it back in every night. When she returned to Florida she was seen

in the emergency room twice for medication, and then she began seeing Dr. Lim. Claimant said

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she was terminated or laid off from Swift because they do not allow medical leave after thirty

days. She testified that her husband was laid off too because he had to take care of her.

At the time of her first deposition, claimant had not worked anywhere since Swift but

looked for work as a lineman with an electrical company. She also checked out a couple truck-

driving jobs but did not apply because she wanted to make sure it was okay with what her

husband wants to do. At the time of her first deposition her husband was no longer assisting her

with wound care or bathing, and she testified he last did so about three weeks previously when

her wound closed. Claimant said that she would have to pass a wellness test to return to Swift

and she does not think she could, because the lifting would cause her surgery to get ripped out.

5. At claimant’s second deposition, she testified that she took daycare courses at a

classroom and a test online, and has been working at a daycare facility for about four months

taking care of three and four-year-olds. She testified that her truck-driving license was good

until May 25, 2006 without requiring another DOT physical. Claimant had an accident

approximately one month prior to her second deposition when she was riding her bike and struck

a vehic le. She couldn’t get up and was taken to the hospital by ambulance. She said she did not

have any broken bones but her left shoulder and left side of her back were hurt, but those injuries

have resolved.

Claimant testified that she has not had any other medical treatment related to the spider

bite, but she plans on having Dr. Lim check her blood. Claimant said that she would have

returned to Swift to work, but her husband did not want to go back because he felt they weren’t

treated fairly. She said tha t she and her husband did apply to a couple of places as team drivers

but she decided she wasn’t feeling well and had to stay close to home to get a job. She went to

Career Central and job fairs. Claimant testified that her husband was not working, but had

worked installing cable and she did not know the details.

6. At final hearing claimant testified that she and her husband were delivering a load

to Wal-Mart in Bradenton, Florida when she felt pain in her left leg, reached to her leg and found

insect legs. She thought it was just a mosquito or bug bite and did not seek medical care

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initially. She told her husband to get Benadryl at a Wal-Mart in between Bradenton and the

Swift terminal in Ocala, Florida. On December 23, 2004 they were in a Wal-Mart when the

pharmacist said claimant’s wound looked bad and made an appointment for her at the local

clinic. Claimant was given a prescription for Claritin and penicillin and thought she would be

okay. She wasn’t feeling good, the wound was hurting, and the prescriptions did not help.

Claimant went to the hospital in Denver, Colorado, and said her infection was inflamed as big as

her hand. She was in the hospital for seven days and released January 5, 2005. According to

claimant, her husband took care of all the doctor’s appointments. He had to rent a car to return

to Florida, or else she would be put in nursing care. Claimant testified that her open wound

needed special care and that her husband was changing her bandages and giving her medications.

He helped her in and out of the bathroom and assisted her with all her activities from her release

from the hospital to five weeks later.

Claimant testified that she and her husband were terminated from Swift in February 2005

because you cannot be out of work more than thirty days. Then to return, she would have to pass

a health test and be able to lift 70 to 75 pounds. Claimant testified that she did tell the physicians

she saw about finding insect legs.

7. Claimant’s husband, Robert Chuites, testified at final hearing that he was

employed at Swift with his wife as a team driver. On December 22, 2004, he was in the driver’s

seat of the truck and claimant was in the back during a delivery to a Wal-Mart in Bradenton. His

wife reported pain. After delivering the load, they took off for Ocala but the truck broke down

and they waited with the truck for eleven hours. Then they went to the Ocala terminal, and left

the next day on a new trip. When they left the terminal, claimant was still complaining of pain,

so they stopped at a Wal-Mart, and were directed to Dr. Franson, who gave claimant ibuprofen,

Claritin, and penicillin. They then traveled to South Carolina and eventually to Aurora,

Colorado, where claimant was seen at the emergency room, a clinic, and then admitted to the

hospital on December 28, 2004, where she remained until January 5, 2005.

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According to Mr. Chuites, he reported to employer on December 23, 2004 via keyboard

transmission when they were in Starke, Florida, that claimant was ill and they were seeking

medical attention. He also reported to employer when claimant was admitted to the hospital in

Colorado. He testified that employer wanted the truck back immediately, and could only

guarantee their absence from work for thirty days, even with a doctor’s excuse. When claimant

was released from the hospital in Colorado, they returned to Florida and he took claimant to

Community Hospital. Mr. Chuites testified that he provided wound care for claimant one time in

the morning and one time in the evening, monitored her pain medications, fed her a liquid diet,

helped her to the bathroom and to bathe. Around the end of February 2005 she was doing better

and he did not have to assist her.

Mr. Chuites testified that he and claimant got a termination notice from Swift, but he

didn’t recall being told that claimant would have to have a physical examination before she

returned to work. Mr. Chuites identified the bills and prescriptions claimant received from

treatment related to her injury. He testified that he spent twelve hours per day giving attendant

care to claimant from her release from the Colorado hospital until February 25 or 26, 2005, and

thereafter he provided a couple hours care per day.

Mr. Chuites testified that when the incident occurred, the truck was parked. He did not

see insect legs or pieces of a bug. Both he and claimant drove after the incident out to Utah.

When claimant was in the hospital in Colorado, Swift offered local day driving work to Mr.

Chuites, but he refused. When they got to Colorado, they dropped the load at the Denver

terminal and Mr. Chuites informed employer that he had to take his wife to the hospital. When

he refused the local employment, employer told him they had to take the truck, because the truck

had to be running.

Mr. Chuites testified that they were terminated by Swift on February 3, 2005, and that he

did not return to work at Swift and didn’t contact them for work when they returned to Florida.

He acknowledged that he did not have a prescription for the attendant care he provided for

claimant, but said that they wanted to put her in a nursing home in Colorado, and he got the

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understanding from the doctor that he could provide the care to keep that from happening. He

did not agree with claimant’s deposition testimony that he was no longer providing attendant

care three weeks prior to her second deposition.

8. William Hogan is a driver manager for employer, and on December 22, 2004 he

was the manager for claimant and her husband. Mr. Hogan testified that claimant and her

husband were hired as a team of drivers, with duties to transport freight throughout the

continental United States. He agreed that claimant had to travel in connection with her duties as

a driver. He testified that he became aware of claimant’s allegation of an injury on December

28, 2004, as he was on vacation over the Christmas holiday. He never spoke personally with

claimant, but only with her husband, who indicated claimant had a spider bite in the truck. Mr.

Hogan did not authorize care for claimant under workers’ compensation. He told claimant’s

husband if he wanted to use the truck to go back and forth to the hospital in Colorado, he would

have to work as a local driver, and Mr. Chuites refused. He was told that he would have to take

the truck to the terminal or they would send someone to pick it up.

Mr. Hogan testified that neither claimant nor her husband returned to work for Swift, and

work was available for them. They did not provide a written resignation, so he took that as job

abandonment. Mr. Hogan testified that drivers are given thirty days for personal issues as leave

of absence, and if they fail to contact Swift at the end of thirty days, it is considered job

abandonment. If claimant’s accident had been accepted under workers’ compensation, this

policy would not apply. If claimant and her husband had returned before the end of thirty days,

they could have continued driving.

Mr. Hogan testified that drivers are given an assigned truck unless it is broken down for a

long time. The drivers are responsible to maintain and clean the assigned truck. Mr. Hogan

testified that he has had no contact from claimant or her husband since their return to Florida on

January 6, 2005. According to Mr. Hogan, he did not report claimant’s injury to the workers’

compensation carrier or the employer’s human relations department because he was not aware it

was a workers’ compensation claim. He indicated that it is the human relations department’s job

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to report workers’ compensation claims to the carrier. He was unaware that claimant was

making a workers’ compensation claim until employer/carrier’s attorney came to the office and

told him.

9. Claimant was seen by Charles James Franson, Jr., D.O., on December 23, 2004 in

Keystone Heights, Florida. On her intake form, claimant indicated that she was there for an

insect bite. She did not indicate that it was work related. Dr. Franson testified that if claimant

had said it was workman’s (sic) comp, he would have called for authorization. He testified that

he was not authorized to treat claimant under workers’ compensation, was not an IME, nor an

EMA. The physician’s assistant circled possible insect bite under the chief complaint section of

the intake form. Claimant reported that her injury occurred on the day prior to her visit with Dr.

Franson, that it was mild, itchy, painful, and burning, and that she did not know how it occurred.

Dr. Franson testified that bee/wasp sting, ant bite, or spider/insect bite were not circled on the

form because claimant did not know, and that they always ask whether the patient saw what bit

them, and she said no. He did not recall her saying anything about seeing legs or a piece of an

insect or spider.

On examination, Dr. Franson found an abscess with what appeared to be a punctate lesion

that was asymmetrical. He diagnosed infected bite and put claimant on penicillin and Claritin.

He never saw her again.

10. The medical records from the Aurora Medical Center indicate claimant was seen

in the emergency room on December 27, 2004, where her chief complaint was spider bite with

infection. The assessment was insect bite with cellulitis to the left flank. Claimant was given IV

antibiotics and told to return in 24 hours for a recheck. She was instructed to take three days off

from work and have dressing changes twice a day. At her follow up visit the next day,

December 28, 2004, the triage notes indicate claimant was there for follow up of a spider bite

with cellulitis, pain, and redness. Claimant was noted to have worsening infectious process of

the left flank, and that she would continue most likely with inpatient admission on IV antibiotics

and wound care.

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11. Claimant was seen by board-certified general surgeon Karen Darricau, M.D.

beginning on December 28, 2004 at the Aurora Medical Center emergency room in Colorado.

Dr. Darricau diagnosed soft tissue infection of the left flank. Dr. Darricau took claimant to

surgery to do an incision and drainage of the infection, and claimant was then admitted to the

hospital for pain control, IV antibiotics, and wound care. Claimant was discharged January 5,

2005, with the medications Rifampin and Bactrim. Claimant was also seen by an infectious

disease doctor while in the hospital, Dr. Jeffrey Clover, whose impression was that claimant had

a left flank abscess caused by MRSA probably the result of local trauma, status post incision and

drainage. Dr. Darricau said that claimant’s wound was to be packed with normal saline-moist

gauze and changed once a day.

Dr. Darricau testified that she was unable to tell what caused claimant’s bacterial

infection. She said that claimant told her she had an insect bite, as did the emergency room

physician, but she could not recall if claimant told her insect bite or spider bite specifically.

The hospital records indicate that on December 30, 2004 Dr. Darricau wrote specific,

detailed orders for wound care for claimant, including the use of Lidocaine gel, saline and sterile

water for irrigation, Aquacel Ag and gauze dressing, to be done each day and prn. The records

also show there was some delay in discharging claimant from the hospital due to her need for

wound care and the inability to arrange it in Colorado. It was noted that they were hoping to

arrange a home health care agency RN to manage the wound care.

12. Claimant underwent an IME with Dr. Brent W. Laartz, who is board-certified in

internal medicine and infectious disease on September 21, 2005. Claimant provided a history of

sleeping in the cab of her and her husband’s truck, when she awoke to feel a stinging sensation.

She turned around to slap at it and therefore felt it was an insect bite. According to Dr. Laartz,

per the records of Dr. Lim, claimant reached MMI on March 10, 2005 from her wound. Based

on Dr. Laartz’s examination, he felt there would be no permanent impairment. At that point she

would have been able to work without restrictions. From a review of her records, claimant would

have been on a no work status from December 22, 2004 to January 11, 2005, and light duty from

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February 7, 2005, according to Dr. Laartz. He was unable to make a determination of her status

from January 11 to February 6, 2005.

Dr. Laartz testified that claimant’s wound would have required at least daily wound

dressing changes, and some people change them twice daily. He indicated that given the

location of the wound, she would have required attendant care for dressing changes from an hour

to two hours a day, or one and a half hours. It was Dr. Laartz’s opinion that the insect bite is the

major contributing cause of claimant’s injury. He has experience treating insect bites, and said

that her medical history and treatment she received were definitely consistent with what could

result from an insect bite.

Dr. Laartz testified that they don’t know what bit claimant, and it could have been any

insect, including a spider. Claimant reported seeing a leg, so it could be a spider, or any other

insect that bites. He agreed that there are numerous sources for MRSA infection, including

trauma and insect bites. According to Dr. Laartz, he can say with more likelihood than not that

the insect bite precipitated, gave the trauma to the skin, which allowed MRSA to invade, since it

progressed rapidly within twelve hours after the insect bite. There was swelling and redness, and

within five days claimant was admitted to the hospital. Dr. Laartz acknowledged that any kind

of puncture wound to the skin can cause the type of symptoms claimant had.

Dr. Laartz testified that he treats MRSA patients on the range of thirty a month, at least,

for ten years. According to Dr. Laartz, theoretically, truck drivers would not be at any increased

risk of MRSA infections, and he has not seen a greater incidence of MRSA occurring with truck

drivers than anyone else in his practice. He was not aware of any literature indicating there is a

greater incidence of insect or spider bites with truck drivers, as opposed to any other segment of

the population or occupation. He indicated that there has to be some entry point or break in the

skin, even if microscopic, for MRSA to get in under the skin.

Dr. Laartz said there was no significance from his standpoint what it was that bit

claimant. He noted that it seems like most patients, when they come in with an insect bite that

gets infected, whether or not they know it’s a spider, they seem to identify it as a spider. Dr.

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Laartz said that claimant would need to continue to monitor her wound. Dr. Laartz testified that

the strain of Staph claimant was diagnosed with is common to spider bites. He noted that if a

person is in areas where there is an enclosed area where there’s blankets, pillows, and that kind

of thing, there might be more likely to be spiders in those areas than on the street. He agreed that

this could be the same at home, if you lived in an area where there’s spiders. Dr. Laartz found

claimant to be credible with regard to her patient history. It appeared to him from claimant’s

history and course of treatment that she had community-acquired MRSA, versus hospital-

acquired.

13. Michelle Jameson is carrier’s adjuster on claimant’s file. She received a notice of

injury for claimant, called in by Juliet Hensel, on January 13, 2005. It read: “Employee was in

lower bunk sleeping when employee was bitten by spider in her lower back. Employee was

taken to a clinic twice”. Ms. Jameson had not reviewed the medical records. She acknowledged

that claimant was required to travel in connection with her employment. She testified that

claimant was not in the course and scope of her employment when the injury occurred. Ms.

Jameson said she had not paid any medical or indemnity benefits on claimant’s behalf.

14. In this case, employer/carrier agreed in argument that claimant is a traveling

employee, and the evidence supports this conclusion. As noted by the court in Longo v.

Associated Limo, 871 So.2d 943 (Fla. 1st DCA 2004), traveling employees are deemed to be in

continuous conduct of their employee’s business including those times when they are not

actually at work but are engaged in such normal and necessary activities as eating and sleeping,

citing Leonard v. Dennis, 465 So.2d 538 (Fla. 2d DCA 1985). Accordingly, when claimant was

sleeping in the cab during her husband’s turn at driving, she was deemed as a matter of law to be

in the service of her employer, Swift. See, also, A.G. Carrier’s, Inc. v. Carroll, 496 So.2d 953

(Fla. 1st DCA 1986).

Employer/carrier argues that claimant has not shown that the incident or risk of insect or

spider bites is greater in claimant’s occupation than that of the general public. However, there

has been no showing that claimant has any type of pre-existing or idiopathic condition that

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caused or contributed to her injury. Further, claimant has not alleged an exposure, repetitive

trauma, or occupational disease theory for her accident. I agree with claimant that per the case of

Foxbilt Electric v. Stanton, 583 So.2d 720 (Fla. 1st DCA 1991), rev. dis. 589 So.2d 290 (Fla.

1991), a disease which is acquired by the bite of an insect is an accident. Thus there is no

requirement that claimant prove an increased risk of hazard not occurring in her non-

employment life.

Employer/carrier also contends that claimant’s testimony is not credible due to the

defects in her memory demons trated by her deposition and trial testimony. While claimant did

not demonstrate the best memory, her testimony overall is consistent regarding the bite and

subsequent treatment, and is supported by the testimony of the physicians and by the medical

records. While she was emotional at times during her trial testimony, I found her to be a credible

witness, and that her demeanor supported the trustworthiness of her statements.

15. Based on the totality of the evidence, claimant has established that she was bitten

by an insect on December 22, 2004 while in the course and scope of her employment, and that

the insect bite is the major contributing cause of her injury, resulting infection, need for

treatment, and disability. Dr. Laartz’s testimony was unrebutted and supported by the remaining

records and testimony, and he concluded her bite was the major contributing cause of her injury,

infection, and need for treatment. Therefore, the claim is compensable.

16. Therefore, employer/carrier should pay the medical bills and reimburse co-pays of

claimant as requested at the division’s fee schedule amount. The treatment was reasonable,

medically necessary, and the industrial injury was the major contributing cause of the need for

the treatment.

17. Employer/carrier should pay claimant TTD benefits from December 28, 2004

through January 11, 2005, per the testimony of Dr. Laartz. Although he said she would be on a

no work status beginning the day of the accident, claimant conceded at final hearing that she did

help her husband drive after the spider bite until they reached Colorado. The payment should be

with penalties and interest for untimely payment. Thereafter, employer/carrier should pay

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claimant TPD benefits based on Dr. Laartz’s testimony from January 12, 2005 through March 9,

2005, along with penalties and interest for untimely payment. Claimant’s light duty status

prohibited the truck-driving job, and she did search for employment, eventually locating a job

around May 2005. No further TTD/TPD is due as claimant reached MMI on March 10, 2005.

Any failure to file TPD earnings report forms is excused because there was no evidence that

claimant was advised of her obligations to do so as employer/carrier denied the claim from the

outset.

18. Employer/carrier should pay claimant’s husband for providing attendant care

benefits to claimant for one and one half hours per day at the stipulated Federal minimum wage

rate from January 5, 2005 to February 14, 2005. The attendant care was prescribed by a

physician, Dr. Darricau, as noted by the detailed wound care instructions, and the notations that a

home health care RN was to provide the care, but for claimant’s inability to obtain same through

her insurance in Colorado. Dr. Laartz confirmed that these dressing changes were reasonable,

medically necessary, causally related to the industrial injury, and that claimant would not be able

to perform them herself due to location of the wound. Any failure of employer/carrier to have

received the prescription prior to the care being provided is excused because it was their position

from the outset that the claim was not compensable, and because claimant’s husband notified

employer of claimant’s need for treatment and his need to stay with her and provide for her care.

The one and one half hours is the time testified to by Dr. Laartz as necessary. Although

both claimant and her husband testified that additional care was provided, and claimant has

requested reimbursement of twelve hours per day from January 5, 2005 to January 25, 2005, this

additional time should be denied. It is error to award attendant care for more hours than the

hours prescribed by physicians. See, Adams Building Materials, Inc. v. Brooks, 892 So.2d 527

(Fla. 1st DCA 2004). The ending date of February 14, 2005 ties in with Dr. Laartz’s review of

Dr. Lim’s records showing that the wound was closed by then, and claimant’s testimony at her

first deposition that attendant care ceased about three weeks previous to that deposition.

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19. Counsel for claimant is ent itled to an attorney fee and taxable costs at

employer/carrier’s expense pursuant to section 440.34(3)(b) & (c), Fla. Stat. (2003), and

jurisdiction should be retained to address the amount.

WHEREFORE, based upon the foregoing, it is ORDERED AND ADJUDGED:

A. The claimant’s December 22, 2004 accident and injury is compensable.

B. Employer/carrier shall pay the medical bills and reimburse co-pays of claimant as

requested at the division’s fee schedule amount.

C. Employer/carrier shall pay claimant TTD benefits from December 28, 2004

through January 11, 2005, along with penalties and interest.

D. Employer/carrier shall pay claimant TPD benefits from January 12, 2005 through

March 9, 2005, along with penalties and interest.

E. Employer/carrier shall pay claimant’s husband for providing attendant care

benefits to claimant for one and one half hours per day at the stipulated Federal minimum wage

rate from January 5, 2005 to February 14, 2005. The remaining claims for additional hours and

time periods of attendant care are denied.

F. Employer/carrier shall pay counsel for claimant an attorney fee and taxable costs

related to securing the above, and jurisdiction is retained to address the amount.

DONE and ORDERED in chambers in Sarasota, Florida.

S _______________________

Diane B. Beck Judge of Compensation Claims Division of Administrative Hearings 6497 Parkland Drive, Suite M Sarasota, FL 34243-4097 (941) 753-0900

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I CERTIFY that the foregoing Final Compensation Order was entered and a copy served by mail on each party and counsel at the addresses below on November 17, 2005.

Laure Carnes __________________________________ Assistant to Judge of Compensation Claims Josh J. Stewart, Esquire 7614 Massachusetts Avenue New Port Richey, FL 34653 Jamey S. Rodgers, Esquire 505 Maitland Avenue, Suite 1000 Altamonte Springs, FL 32701 Swift Transportation 2201 S.W. 57th Avenue Ocala, FL 34474 Gallagher Bassett Services Post Office Box 785071 Orlando, FL 32878 Debra Chuites 4918 Uranus Avenue New Port Richey, FL 34652