CHERYL D. MILLS, Appellant v. WALDEN-SPARKMAN, INC., and
FLORIDA FARM BUREAU INSURANCE COMPANIES, Appellees
No. BJ-60
Court of Appeals of Florida, First District
493 So. 2d 64; 11 Fla. Law W. 1847
August 22, 1986, Filed
PRIOR HISTORY:
An Appeal from an Order of Deputy Commissioner Louis F. Tidwell.
COUNSEL: H. Guy Smith and C. Kenneth Stuart, Jr., of H. Guy Smith, P.A., for
Appellant.
Mark A. Glitto of Marlow, Shofi, Smith, Hennen & Smith, P.A., for Appellees.
JUDGES: Joanos, J. Wigginton, J., concurs. Smith, L., J., specially concurs
with opinion.
OPINIONBY: JOANOS
OPINION: [*65] This cause is before us on appeal from a worker's
compensation order denying reimbursement to claimant for transportation costs
incurred in obtaining medical treatment. We reverse. An issue raised is whether
a family member should be reimbursed for wages lost due to absence from work
when providing claimant with transportation to obtain authorized medical
treatment.
The facts in this case show that Mills injured her wrist in two industrial
accidents. As a result she was under the care of a surgeon in Gainesville,
Florida, and had to travel 306 miles roundtrip every time she left home for
treatment. According to medical testimony, as a result of her compensable injury
Mills was placed in a cast which precluded her from driving herself in her own
car, for she could not operate the stick shift. Each of the fourteen times Mills
went to Gainesville for treatment, her husband drove her. Each trip to
Gainesville resulted in the loss of a day's wages for Mills' husband. At the
compensation hearing Mills requested $.20 per mile plus $50.00 per day per trip
to cover her husband's lost wages. The deputy commissioner denied the entire
claim for transportation expenses, stating that Mills had not shown that she had
used "the most economical means of transportation available and suitable in the
individual case." In addition, the deputy commissioner held that as to the
mileage claim, the claimant had not previously submitted it. We hold that under
the circumstances of this case it was error to totally deny the claim for
transportation costs.
Section 440.13(4), Florida Statutes (1982) [now 440.13(5)] allows
reimbursement for travel expenses to claimants who incur costs when attempting
to receive authorized treatment. That section provides:
An injured employee is entitled, as a part of his remedial treatment, care, and
attendance, to reasonable actual cost of transportation to and from the
doctor's office, hospital, or other places of treatment by the most economical
means of transportation available and suitable in the individual case. When the
employee is entitled to such reimbursement for transportation by private
automobile, it shall be presumed, in the absence of proof, that the actual cost
is the amount allowed by the state to employees for official travel.
The statute clearly entitles a claimant to reimbursement of "reasonable actual
cost of transportation." Therefore, we remand for an award of transportation
costs to be determined based on the following outlined approach:
The claimant is required to first meet her burden of providing evidence that
the mode of transportation taken was reasonable and economical under the
circumstances, taking into consideration the medical condition of the claimant.
The record reflects that Mills met that burden. In this case, Mills apparently
not only suffered a wrist injury which precluded her from operating her car, but
she was suffering from a post operative depression as well, and was advised
against travelling alone by her doctor. The claimant should provide evidence of
the cost of the chosen travel as compared to the costs of other reasonably
available means of transportation. Once the claimant accomplishes this, the
burden [*66] shifts to the employer and carrier to supply evidence that a
more reasonable and economical transportation method exists, of which claimant
could have been aware, but chose not to take advantage of. For example, it was
incumbent upon the employer and carrier in this case to show that if the
claimant could not drive herself, the cost of hiring a chauffeur or a taxi or
some other method to transport her to and from her medical treatments would be
both reasonable and less expensive than the method she chose. After weighing the
evidence provided by both parties, the deputy should make a determination as to
how much the claimant is entitled to reimbursement for travel expenses.
Upon remand both parties will be afforded the opportunity to provide evidence
as to the most reasonable and economical means of transportation available to
Mills. We point out that if the most reasonable way to be transported was to
have someone drive her, the amount of the person's lost wages incurred when
acting as a driver for the claimant is not necessarily an appropriate measure
for transportation costs. We do not reimburse for wages lost by family members
who provide attendant care to workers compensation claimants. Rather, we
reimburse for the quantity and quality of attendant care services provided by
family members that go beyond those which would normally be provided on a
gratuitous basis, i.e., where the provider substantially departs from his usual
daily routine to provide such services. Walt Disney World Co. v. Harrison, 443
So.2d 389, 393 (Fla. 1st DCA 1983). In this case, claimant's husband
substantially departed from his usual daily work routine each of the fourteen
days he drove claimant to Gainesville for treatment. If it was the most
reasonable and economical way for someone to drive her, that person should be
paid for their costs. The amount should not necessarily be based upon the amount
of wages lost but should be a reasonable amount for the services rendered if the
wages lost exceed that amount. Unlike attendant care services, reimbursement for
transportation costs are allowed only where they are "actual" costs because of
the requirements of section 440.13(4), Florida Statutes (1982) [now 440.13(5)].
In other words, not only must they be "reasonable" but they must have been
actually incurred. The item in question must have "cost" the claimant or the
person providing the service. Therefore, lost wages can qualify as a
reimbursable cost but only if the manner of travel was the most economical
reasonable way to be transported, the amount was reasonable as to the quality
and quantity of services rendered, and the wages were actually lost by the
person providing the transportation.
If it was not reasonable to be transported in the manner undertaken by
claimant, claimant should be awarded as much of her actual costs as would have
provided the most economical, suitable transportation available. We further note
that the order determining the transportation costs to be awarded should be
sufficiently detailed so that a reviewing court can be intelligently apprised as
to the rationale of the deputy commissioner in reaching a result. Ellerbee v.
Concorde Roofing Co., 461 So.2d 206 (Fla. 1st DCA 1984). The order on appeal was
not sufficient in setting forth the rationale for the deputy commissioner's
actions as to the transportation costs.
Reversed and remanded for proceedings consistent with this opinion.
WIGGINTON, J., CONCURS.
SMITH, L., J., SPECIALLY CONCURS WITH OPINION.
CONCURBY: SMITH
CONCUR: SMITH, L., J., specially concurring.
I concur in the majority's opinion and decision, except for that portion
holding that lost wages can qualify as a cost of transportation for medical
treatment. Although lost wages may indeed represent a "cost" to the person
providing the transportation, such loss is more in the nature of "damages," not
recoverable by such person in workers' compensation proceedings, [*67]
rather than a "cost" of the transportation services provided.