DON HARRIS PLUMBING COMPANY, INC. AND NEW HAMPSHIRE INSURANCE COMPANY, APPELLANTS,
v.
JOHN N. HENDERSON, APPELLEE

Fla. 1st DCA | 1984-08-22
No. AX-180
BOOTH and BARFIELD, JJ., concur.
454 So. 2d 745 Florida District Court of Appeal, First District (1984) Positive Treatment
Cited by 21 cases

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Holding

The court held that the award for attendant care services was supported by competent substantial evidence and affirmed the deputy commissioner's decision.


Headnotes

[1] A family member may not be paid for custodial care when the services they provide do not go beyond those normally provided by family members gratuitously.

[2] Attendant care benefits may be awarded when services provided by a family member go beyond ordinary household services and include tasks such as dressing, bathing, admini…

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Facts & Procedural History

An employee suffered a herniated disc and related psychiatric conditions, leading to permanent total disability. The employee's spouse claimed attenda…

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

Don Harris Plumbing Company, Inc. and New Hampshire Insurance Company (E/C) appeal an award to Henderson’s spouse for attendant care services, from the date of his industrial accident to the present and continuing.

Prior to his claim for these services, the deputy found Henderson permanently and totally disabled as a result of the accident, which left him with a herniated disc. The accident was also found to have been at least a partial cause of certain psychiatric conditions suffered by him, namely psychogenic pain syndrome, anxiety and depression. The order of the deputy in which these findings appeared was not appealed, and the E/C commenced paying PTD benefits to Henderson. He subsequently filed this claim for attendant care services by his wife from the date of the accident to the present and continuing, as well as a lift chair, a swimming pool and a waterbed. The latter three claims were denied, but the deputy awarded attendant care services in the amount of $43.40 per week from the date of the accident through 31 December 1980 and $46.90 per week from 1 January 1981 to the present and continuing. It is from this award of benefits that the E/C appeal.

The E/C contend that there is no CSE in the record to support the award. They point out that Henderson’s treating neurologist testified that, in his opinion, there was no need for such services, and that the only evidence of the nature of any necessary services, and the time necessary to perform them, came from the wife herself. The E/C contend that the services provided by the wife, even if accurately recounted, amount to no more than a spouse would normally supply and therefore do not qualify as attendant care services. The E/C further argue that, even should the award be justified, it should not date from the date of the accident but rather from the date of the claim for such services, as they had no knowledge of the need for the service until that time. See City of Leesburg v. Balliet, 413 So. 2d 860 (Fla. 1st DCA 1982).

Henderson responds that there is ample evidence to support the award, in that his treating psychiatrist testified that, due to the superimposition of the related psychiatric conditions on the back injury, such care was necessary, at least for a time. The neurologist’s testimony does not necessarily contradict this opinion, states Henderson, in that he may have been speaking from a strictly physiological point of view while the psychiatrist was familiar with the additional debilitations caused by his psychiatric condition. Further, his wife detailed her duties with him, testifying that she spent from two to six hours per day in performing them. Therefore, CSE supports this award. We agree and affirm.

Section 440.13(2)(d), Florida Statutes (1983), provides that “a family member may not be paid [for custodial care] when the services they provide do not go beyond those normally provided by family members gratuitously.” Ordinary household services, such as shopping and cooking, are gratuitous when performed by a spouse. See State v. Handy, 413 So. 2d 808, 810 (Fla. 1st DCA 1982), but see Khawam v. Collision Clinic International, Inc., 413 So. 2d 827 (Fla. 1st DCA 1982).

When services go beyond these, however, benefits for attendant care may be awarded. See Rich International Airways v. Cahvas-quis, 416 So. 2d 902 .(Fla. 1st DCA 1982).

Such services have been defined as dressing, Craftsmen’s Village v. Benach, 8 FCR 372 (1974); bathing, Craftsmen’s Village, supra; Pan Am World Airways, Inc. v. Weaver, 226 So. 2d 801 (Fla.1969); administering medication, Pan Am, supra; Edward L. Nezelek Construction v. Terlizzese, 9 FCR 328 (1975); and assisting with sanitary functions, Craftsmen’s Village, supra. Here, uncontradicted testimony indicates that Henderson’s wife performed all of these functions, plus assisting him in rising and in donning therapeutic apparatus. His psychiatrist confirmed that his psychiatric condition superimposed on the related back injury resulted in the need for this assistance.

The award of attendant care benefits is supported by CSE and we affirm.

We do not address the E/C’s contention that the award was inappropriately made from the date of the accident rather than the date of the claim, as this question was not substantially raised before the deputy and consequently is not preserved -"or review by this court. See Sunland Hospital v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982).

BOOTH and BARFIELD, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • Standard Blasting & Coating & Claims Ctr. v. Hayman, 476 So. 2d 1385 (Fla. 1st DCA 1985)
    …cent cases state that the deputy must try to apportion the time so that employer/carrier pay for attendant care but not ordinary household duties. Sealy Mattress Co. v. Gause, 466 So. 2d 399 (Fla. 1st DCA 1985); Don Harris Plumbing Co. v. Henderson, 454 So. 2d 745 (Fla. 1st DCA 1984). The problem with this analysis is that Mrs. Hayman is, in effect, most probably doing two things at once. That is, even though she might be cooking or doing laundry or whatever, she is simultaneously monitoring her husband’s wh…
  • …wife by claimant’s attorney, we nevertheless decline to consider the appellee’s argument raised as to the hearsay rule, as it was not timely raised before the deputy, and, consequently, not preserved for review. Don Harris Plumbing Co. v. Henderson, 454 So. 2d 745 (Fla. 1st DCA 1984). The dc apparently arrived at the $5.00-an-hour figure, based on the market rate that was appropriate for the area involved in Sheraton Bal Harbour. Since, however, there is CSE to support an award [*203] of $6.00 an hour, and th…
  • Sealey Mattress Co. & Hartford Ins. Co. v. Gause, 466 So. 2d 399 (Fla. 1st DCA 1985)
    …ovides ordinary services to a claimant, the presumption is they are gratuitous in nature. Sheraton Bal Harbour v. Platis, 447 So. 2d 987 (Fla. 1st DCA 1984). However, as we stated in the recent case of Don Harris Plumbing Company, Inc. v. Henderson, 454 So. 2d 745 (Fla. 1st DCA 1984), when services rendered go beyond ordinary household duties, such as shopping and cooking, benefits for attendant care may be awarded. Extraordinary services include bathing, dressing, administering medication, and assisting with…

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