AT&T COMMUNICATIONS 

and SEDGWICK CMS,

Appellants,

v.

VICTORIA MURRAY ROSSO,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-3971

_____________________________/

Opinion filed May 2, 2017.

An appeal from an order of Judge of Compensation Claims.

Geraldine B. Hogan, Judge.

Date of Accident: February 10, 1989.

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.

PER CURIAM.

The 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 
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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.

In 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)). 
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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. 

Claimant, 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. Litwin. 

In 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 
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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. 

Furthermore, 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. 

Even 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 
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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. 

 Finally, 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 

 

∗ In 1990, the legislature adopted language stating that neither the facts nor the law 

is to be liberally construed in favor of either party. § 440.015, Fla. Stat. (1990). This 

Court previously determined that it was unnecessary to decide if this language had 

any retroactive effect because the statute was “directed to precluding a [JCC] from 

giving a ‘benefit of the doubt’” to either party “when drawing inference from 

predicate facts, a practice heretofore condemned by this court in Uniweld Prods., 

Inc. v. Lopez, 511 So. 2d 758 (Fla. 1st DCA 1987).” Schafrath v. Marco Bay Resort, 

Ltd., 608 So. 2d 97, 104 (Fla. 1st DCA 1992). Essentially, the Schafrath court found 

that the 1990 amendment did not change the existing law. In any event, we do not 

need to address the reactivity of the 1990 amendment because the E/C have not 

argued its application here. 
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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 unnecessary to address that potential error because the evidence 

ultimately relied upon by the JCC does not constitute CSE of the requisite medical 

necessity in support the award of home renovations. 

Accordingly, we AFFIRM in part the order below, but REVERSE the award 

of home renovations.

LEWIS and B.L. THOMAS, JJ., CONCUR; ROWE, J., CONCURS IN RESULT

WITH OPINION. 
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ROWE, J., concurring in result.

Under the law in effect for this date of injury, Claimant is entitled to medically 

necessary remedial treatment, care, and attendance, as well as professional or 

nonprofessional custodial care, as the nature of the injury may require. See § 

440.13(2)(a)-(b), Fla. Stat. (1989). The applicable case law establishes that lawn 

care services may be awardable under this statutory authority if the medical evidence 

shows that a claimant’s injury will improve with the provision of 

services. See Delong v. 3015 W. Corp., 558 So. 2d 108 (Fla. 1st DCA 1990) 

(affirming denial of lawn care services where medical evidence did not establish that 

avoiding yard work would improve claimant’s compensable back injury); see also S. 

Indus. v. Chumney, 613 So. 2d 74, 77 (Fla. 1st DCA 1993) (affirming award of lawn 

care where claimant’s medical needs included dust-free environment); Polk Cty. Bd. 

of Comm’rs v. Varnado, 576 So. 2d 833, 839 (Fla. 1st DCA 1991) (affirming the 

JCC’s finding of no evidence of medical necessity for lawn care under Delong). It 

is this standard of medical necessity that distinguishes such services from the 

“quality of life” benefits that are not awardable as medical benefits and are more 

properly addressed through indemnity payments. See, e.g., Marlowe v. Dogs Only 

Grooming, 589 So. 2d 990 (Fla. 1st DCA 1991) (holding that supportive services, 

such as driving claimant to various non-medical places, constitute “quality of life” 

activities indemnified under disability compensation rather than attendant care). 
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Thus, it is not sufficient for a claimant to show that the provision of lawn care 

services will be beneficial to the claimant’s overall well-being; rather, lawn care 

services may be awarded only when those benefits are medically necessary and will 

aid in the claimant’s recovery or improve his or her compensable injury. Delong, 

558 So. 2d at 109. 

 Here, the authorized treating pain management physician testified that 

Claimant’s compensable back injury would not be improved by avoiding lawn care 

activities. The only testimony regarding the medical necessity for the lawn care 

services came from Claimant’s authorized treating psychologist who opined that a 

well-maintained lawn is likely to improve Claimant’s compensable depression and 

anxiety. However, this testimony did not constitute competent, substantial evidence 

of the medical necessity of the lawn care services. Because the psychologist is not 

a “physician” or “doctor” under the statute, she was not competent to testify as to 

medical necessity. See § 440.13(1)(b), Florida Statutes (1989) (limiting the 

definition of “physician” to physicians licensed under chapter 458, duly licensed 

osteopaths, chiropractors, podiatrists, optometrists, and dentists). However, no 

objection was raised on that basis; thus, any challenge to her qualification to express 

a medical opinion has not been preserved. For this reason, I concur in the result 

reached by the majority in this case.