Kaany v. Miami Country Day School / AmTrust
JCC Kerr (Miami)(Andy Borah)(9-21-2020) – Denied attendant care. Following her accident and release from inpatient rehab, the claimant was provided with 24 hour a day care. Over time, the claimant’s attendant care was reduced and eventually terminated. The claimant was placed at MMI by Dr. Jacobs on 11/28/2018 and assigned an 18% PPI rating to the body as a whole. On 6/24/2019, Dr. Jacobs prescribed attendant care four hours a day five days a week and the Carrier provided the care. Dr. Jacobs renewed the prescription on 10/7/2019 and again on 1/30/2020, therefore, the last written prescription was dated 1/30/2020 and expired on 3/30/2020. Since the JCC found attendant care was suspended as of 3/1/2020, the only timeframe in question was for 3/1/20 thru 3/30/20. As the JCC does not have the authority to grant an award of past attendant care based solely on the claimant’ s need for care without regard to the services actually performed, and since there was no evidence provided to show the exact hours and services provided by the claimant’s son, and no claim for reimbursement to him, there is no competent substantial evidence to support such an award. With that said, the claimant did not even carry their burden to show she needs attendant care for activities that go beyond household duties. Click here to view Order
As an aside – prior to the Final hearing, a hearing took place on E/C’s Motion in Limine to strike opinions from Mr. Mansaurwala. The JCC found that since Mr. Mansaurwala’s opinions were not medical opinions, they were not obtained at the direction and control of a physician, and are violative of F.S. 440.13(2)(b) and excluded. During the FH itself, claimant’s counsel attempted to introduce records from Dr. Jacobs dated 8/28/20, the day before the hearing. Andy objected due to lack of notice and opportunity to cross examine the physician. The 8/28/20 records were excluded. Lastly, claimant’s counsel attempted to have Dr. Jacob’s depo testimony used in lieu of updated script for attendant care, but a deposition cannot be used as a written prescription as F.S. 440.13(2)(b) requires that attendant care be prescribed by the physician in writing. Even if depo were used in this capacity, Dr. Jacobs did not testify as to duration of updated recommendation and would not be sufficient under the statute.