What's Hot in Workers' Comp
First District Court of Appeal Reverses Attendant Care Award Recommended in Independent Medical Evaluation Report
What’s Hot in Workers’ Comp, Vol. 30, No. 4, April 2026
April 1, 2026
Tri City Elec. Contractors Inc. v. Gondek, No. 1D2024-2352, 2026 WL 513579 (Fla. 1st DCA Feb. 25, 2026)
The First District Court of Appeal set aside an award of attendant care that was discussed in an independent medical evaluation (IME) report based on the “narrow role” of IME physicians as well as the nature of the IME report itself.
Pursuant to Florida Statutes Section 440.13(2)(b)1, attendant care must be 1) performed at the direction and control of a physician and be medically necessary; 2) the physician must prescribe such care in writing; 3) the prescription must be provided to the employer/carrier; 4) the prescription must give sufficient detail about the required care; and 5) the prescription must not be retroactive.
In this case, the claimant filed a petition for benefits requesting various benefits, including attendant care benefits paid to his wife. The employer/carrier denied the attendant care claim on the grounds that no authorized treating provider wrote a prescription for the same. The claimant obtained an IME, whose report discussed the claimant’s difficulty sleeping, getting dressed, bathing, and other limitations on his activities of daily living. The report concluded that the claimant’s wife should be in attendance 24 hours per day, seven days per week, to provide the claimant with nonskilled care.
The Judge of Compensation Claims ruled that the IME report constituted a prescription for the attendant care benefits sought and awarded the same. However, the district court stated that under the Florida Statutes, IME physicians have a “limited job of supplying ‘an objective evaluation of the injured employee's medical condition ... at the request of a party, a [JCC], or the department to assist in the resolution of a dispute arising under this chapter.’” Therefore, the court did not consider the IME report to exercise direction and control over the claimant's care.
Moreover, the court discussed what constitutes a “prescription” for attendant care, noting the definition of the same elsewhere in Florida Statutes and common dictionary usage to be an order to dispense necessary drugs, supplies, or medical treatment. Here, the court held that the IME report did not order any treatment or care that a “typical, ordinary prescription” would so order. Consequently, the court reversed the attendant care award.
