Purple Pride, Inc., First Protective Insurance Company v. Burgess

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
No. 1D2025-0990
_____________________________
P URPLE PRIDE , I NC ., and FIRST
PROTECTIVE INSURANCE
C OMPANY ,
Appellants/Cross-Appellees,
v.
LARRY B URGESS,
Appellee/Cross-Appellant.
_____________________________
On appeal from the Office of the Judges of Compensation Claims.
Jack A. Weiss, Judge of Compensation Claims.
Date of Accident: January 26, 2019.
March 18, 2026
T READWELL , J.
Claimant 	Larry 	Burgess 	suffered 	a 	work-related 	motor
vehicle accident in 2019 that caused him to become tetraplegic (or
quadriplegic). He requires around-the-clock attendant care for
which the Employer/Carrier (E/C) has accepted compensability
under Florida’s Workers’ Compensation Law. Claimant lives in
Atlanta, 	Georgia, 	where 	he 	receives 	such 	care. 	In 	this 	case,
Claimant prevailed 	below in his claim for additional 	medical
benefits to take a non-medical trip to visit family in New York. For
the following reasons, we set aside the Final Compensation Order.

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I.
In 	2024, 	Claimant 	filed 	a 	petition 	for 	benefits 	seeking
attendant care and other medical benefits for a trip he intended to
take to visit family in New York. Specifically, he sought benefits
for the extra cost of traveling attendants, including their overtime
pay and accommodations, and the extra cost of renting a Hoyer lift,
commode chair, and other durable medical equipment (DME)
needed 	for 	the 	trip. 	In 	response, 	the 	E/C 	characterized 	the
intended trip as a “personal vacation” and therefore denied that
these additional expenses were medically necessary.
At the final hearing, the Judge of Compensation Claims (JCC)
admitted 	the 	deposition 	of 	Claimant’s 	psychotherapist 	who
testified that a visit to see family in New York would improve
Claimant’s mental health. The psychotherapist stated that the trip
is 	“medically 	necessary” 	in 	the 	sense 	that 	it 	could 	improve
Claimant’s symptoms related to depression and anxiety. The JCC,
however, 	rejected 	the 	psychotherapist’s 	conclusion 	about 	the
medical necessity of the trip because the Workers’ Compensation
Law defines “medical necessity” differently. See § 440.13(1)(k), Fla.
Stat. (2024) (defining “medical necessity” as “any medical service
or medical supply which is used to identify or treat an illness or
injury, is appropriate to the patient’s diagnosis and status of
recovery, and is consistent with the location of service, the level of
care provided, and applicable practice parameters.”). Under the
statutory definition, the JCC concluded that Claimant failed to
prove that the trip to New York to visit family was medically
necessary.
Nevertheless, the JCC concluded that the additional costs
Claimant would incur to travel with the attendants and DME
should be provided by the E/C. The JCC relied on the E/C’s
acknowledgement that, regardless of any trip, Claimant needs
around-the-clock attendant care and DME as a result of the work-
related accident. In the JCC’s view, the E/C should cover those
costs 	anywhere, 	pursuant 	to 	“the 	maxim 	that 	industry 	is
responsible 	for 	what 	industry 	causes.” 	Accordingly, 	the 	JCC

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granted 	Claimant’s 	petition 	for 	the 	additional, 	trip-related
benefits. The E/C appealed.1
II.
The 	Workers’ 	Compensation 	Law 	requires 	employers 	to
furnish 	“medically 	necessary” 	remedial 	treatment, 	care, 	and
attendance 	to 	an 	injured 	employee. 	§ 440.13(2)(a), 	Fla. 	Stat.
(2024). 	Thus, 	“‘medically 	necessary’ 	constitutes 	the 	general
defining 	term 	under 	which 	all 	compensable 	benefits 	awarded
under section 440.13, Florida Statutes, must fall.” Montgomery
Ward v. Lovell, 652 So. 2d 509, 511 (Fla. 1st DCA 1995). Because
the JCC concluded that Claimant’s trip to New York was not
medically necessary, it was error to grant Claimant the additional
medical benefits he sought for the trip.
This Court has previously distinguished between travel that
is 	medically 	necessary 	and 	travel 	that 	merely 	improves 	a
claimant’s quality of life. See Marlowe v. Dogs Only Grooming, 589
So. 	2d 	990, 	994 	(Fla. 	1st 	DCA 	1991) 	(concluding 	that
transportation services to the store and other places for “various
and 	sundry 	purposes” 	constitute 	quality-of-life 	activities, 	in
contrast 	to 	transportation 	necessary 	for 	medical 	treatment).
Quality-of-life travel includes visits “to the beach, the grocery
store, the movies, and the mall.” Timothy Bowser Const. Co. v.
Kowalski, 605 So. 2d 885, 887 (Fla. 1st DCA 1992); see also
Broadspire v. Jones, 164 So. 3d 708, 712 (Fla. 1st DCA 2015)
(quality-of-life travel includes visits “to the park”). It also includes
visits to a claimant’s mother’s home. Dade Cnty. Sch. Bd. v. Grier,
648 	So. 	2d 	805, 	806 	(Fla. 	1st 	DCA 	1994). 	It 	even 	includes
transportation to a claimant’s father’s funeral. State, Hendry Cnty.
Corr. Inst., Div. of Risk Mgmt. v. Hughes, 412 So. 2d 922, 923 (Fla.
1st DCA 1982). In short, “transportation other than to a doctor”
1 The E/C first argues on appeal that, while the JCC had
jurisdiction 	to 	adjudicate 	the 	dispute, 	the 	JCC 	did 	not 	have
jurisdiction to ultimately order the E/C to “pay Claimant” directly
for the additional benefits. In view of our decision to reverse the
JCC’s Final Compensation Order on the merits, we do not address
the E/C’s jurisdictional argument with respect to part of the relief
the JCC granted.

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reflects on quality of life rather than medical necessity and is
“generally considered gratuitous and not compensable.” Socolow v.
Flanigans Enterprises, 877 So. 2d 742, 744 (Fla. 1st DCA 2004);
see also Hughes, 412 So. 2d at 923 (“The statute does not require
the employer/carrier to pay for travel undertaken for reasons
unrelated to the treatment of injuries sustained by the employee
in a compensable industrial accident.”)
Here, because the JCC concluded that Claimant’s proposed
trip to New York was not medically necessary, the trip—at best—
could only be categorized as travel to improve Claimant’s quality
of life. The Legislature has not included such quality-of-life travel
within the ambit of medical benefits available under the Workers’
Compensation Law. It was therefore error for the JCC to grant
benefits for a trip that the JCC determined was not medically
necessary. 	Accordingly, 	we 	set 	aside 	the 	JCC’s 	Final
Compensation Order.2
SET A SIDE .
OSTERHAUS, C.J., concurs; N ORDBY, J., concurs with opinion.
2 Claimant’s cross-appeal is meritless. He takes no issue with
the underlying Final Compensation Order, which granted him the
full relief he sought. Cf. Webb Gen. Contracting, Inc. v. PDM
Hydrostorage, Inc., 397 So. 2d 1058, 1059-60 (Fla. 3d DCA 1981)
(“The function of a cross-appeal is to call into question error in the
judgment appealed, which, although substantially favorable to the
appellee, 	does 	not 	completely 	accord 	the 	relief 	to 	which 	the
appellee 	believes 	itself 	entitled.”). 	Instead, 	Claimant’s 	“cross-
appeal” is a wide-ranging, preemptive, constitutional attack on
section 440.13, Florida Statutes, “[i]n the event that the law is
interpreted” by this Court to deny Claimant the additional medical
benefits 	he 	seeks. 	No 	rule 	of 	law 	or 	procedure 	recognizes
Claimant’s attempt to “cross-appeal” a ruling before the ruling
even happens.

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_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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N ORDBY, J., concurring.
I fully join the majority opinion setting aside the JCC’s order.
I write merely to highlight an appellate procedural matter.
As the majority opinion explains in footnote 2, Claimant filed
a purported cross-appeal that sought 	to preemptively raise a
constitutional challenge. In his notice of cross-appeal, Claimant
stated that he was planning to challenge the constitutionality of
section 440.13, Florida Statutes. But he failed to file and serve a
notice of constitutional challenge on the Attorney General, as
required by Florida Rule of Appellate Procedure 9.425.
This rule of appellate procedure, which was adopted in 2020,
requires the filing and service of such a notice:
In cases not involving criminal or collateral criminal
proceedings, a party that files a petition, brief, written
motion, or other document drawing into question the
constitutionality of a state statute or state constitutional
provision, at the time the document is filed in the case,
shall:
(a) 	file 	a 	notice 	of 	constitutional 	question
stating 	the 	question 	and 	identifying 	the
document that raises it; and
(b) serve the notice and a copy of the petition,
brief, 	written 	motion, 	or 	other 	document, 	in
compliance 	with 	rule 	9.420, 	on 	the 	attorney
general.
Service of the petition, brief, written motion, or other
document does not require joinder of the attorney general

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as a party to the action. Notice under this rule is not
required if the attorney general is a party, or counsel to a
party, to a proceeding under these rules.
Fla. R. App. P. 9.425. These requirements are in addition to the
notice requirements imposed at the trial court level by Florida
Rule of Civil Procedure 1.071. To aid attorneys and litigants in
complying with Rule 9.425, the appellate rules include a model
notice form (Rule 9.900(m)).
Although we disposed of Claimant’s purported cross-appeal as
meritless, had it been a true cross-appeal, and had there been any
merit to his constitutional claim, failure to provide timely notice to
the Attorney General could have foreclosed our consideration of
the claim. See Lee Mem’l Health Sys. v. Progressive Select Ins. Co.,
260 So. 3d 1038, 1041 (Fla. 2018) (“We agree with Lee Memorial
that the Second District should not have addressed the contract-
impairment issue. Progressive did not serve proper notice on the
Attorney General, and the trial court’s decision not to rule on that
issue was therefore proper. Accordingly, we reverse the portion of
the Second District’s decision declaring the LMHS Lien Law a
violation of article I, section 10 and do not address the merits of
this claim.”); cf. Fla. Atl. Univ. Bd. of Trs. v. Harbor Branch
Oceanographic Inst. Found., Inc., 423 So. 3d 842, 848–49 (Fla.
2025) 	(“As 	to 	the 	attorney 	general, 	she 	was 	notified 	by 	the
Foundation pursuant to Florida Rule of Appellate Procedure 9.425
while this matter was on appeal before the Fourth District. The
attorney general neither filed any briefs nor argued before the
Fourth District. We need not and do not decide here that a party’s
failure to comply with rule 1.071 can always be excused by later
conduct on appeal. Nor do we hold that any state litigant has the
power to waive the attorney general’s right to be heard pursuant
to the rule. The attorney general certainly has authority to waive
compliance with rule 1.071, and in this case gave every indication
of 	having 	done 	so 	when 	this 	matter 	was 	before 	the 	Fourth
District.”).
In short, attorneys and litigants should be mindful of Rule
9.425 when seeking to raise constitutional challenges.
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William 	H. 	Rogner, 	HR 	Law, 	P.A., 	Orlando, 	for
Appellants/Cross-Appellees.
Randall 	Porcher, 	Morgan 	& 	Morgan, 	Tallahassee, 	for
Appellee/Cross-Appellant.