BONNIE HEATH FARM AND THE HARTFORD, APPELLANTS,
v.
FRANKLIN FERRELL, APPELLEE
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In a workers' compensation appeal, the court affirmed an award of nursing care benefits for a claimant's wife who provided ongoing care following his disabling injury, rejecting the carrier's argument that spousal services fall within a gratuitous presumption and therefore are not compensable.
The court held that compensation for family members who render necessary custodial care is permissible under Florida law, and such services are compensable when they are required by the claimant's injury and exceed those normally provided by family members gratuitously.
[1] A workers' compensation carrier may be liable for nursing services provided by a claimant's spouse when the services are medically required and exceed those normally prov…
[2] The presumption that services provided by a spouse are gratuitous does not apply when the services are medically necessary and go beyond typical familial care.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Even the current statute, § 440.13(2)(d), Florida Statutes, as amended in 1983 to codify the earlier decisional rule, clearly contemplates compensation for family members who render nonprofessional custodial care except "when the services they provide do not go beyond those which are normally provided by family members gratuitously."”
Establishes the governing legal standard for compensability of family member services in workers' compensation claims.
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Join FLexlaw to unlock all legal intelligenceThe claimant sustained a work injury on February 20, 1975, and was accepted as permanently totally disabled in 1976. The claimant married his nurse on…
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WENTWORTH, Judge.
This is an appeal from a workers’ compensation order of February 15, 1984, awarding payment under Chapter 440, Florida Statutes, for nursing services to claimant’s wife at the rate of $3.35 per hour, eight hours per day, seven days a week, retroactive to January 23, 1976. Claimant was accepted as permanently to tally disabled by the appellant carrier in 1976, and the parties then stipulated to a fee for nursing services “from the date of accident [2/20/75] to the date she was married to the Claimant” on January 23, 1976, with provision for a new claim in event of further entitlement. Three hours’ daily care had been voluntarily authorized as of May 2, 1983, and appellants challenge the order granting five additional daily hours’ care from that date as well as the entire award for earlier years. We affirm.
The record is replete with both expert and lay testimony as to claimant’s need for medical monitoring and assistance with basic personal activity, including his repeated incidents of drug overdose before and after the initial payment for nursing services, supra. Based on the stipulated termination date, coinciding with claimant’s marriage to the provider of such service, appellants “suggest that the only conclusion to be drawn from that agreement and order is that all the parties recognize that once she married the claimant she was excluded from payment for her services because the services were of the type that fall within the gratuitous presumption when performed by a spouse.” We find no such inference in this case.1 Even the current statute, § 440.13(2)(d), Florida Statutes, as amended in 1983 to codify the earlier decisional rule, clearly contemplates compensation for family members who render nonprofessional custodial care except “when the services they provide do not go beyond those which are normally provided by family members gratuitously.” The deputy in this case properly concluded that the evidence before him substantiated payment for services of the nature and duration awarded, because they were required by claimant’s injury and therefore were not such services as are normally provided by family members gratuitously.2
With respect to the cross-appeal asserting error in the hourly rate of compensation, we find sufficient support for the deputy’s award.
Affirmed.
SHIVERS and NIMMONS, JJ., concur. . Appellee argues with some persuasiveness: "... such a presumption would be discrimination based on marital status. If services are needed, it would be discriminatory to pay a nurse's aide who lived in, but not pay a nurse due to the mere fact of marriage."
. Cf. Walt Disney World v. Harrison, 443 So. 2d 389, 393: "It is not the purpose of section 440.13 to burden family members with medically required ... unskilled attendate care_”
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Honeycutt v. R.G. Butlers Dairy & Whiting Nat'l Servs., 525 So. 2d 984 (Fla. 1st DCA 1988)…services on Honeycutt’s behalf. The E/C argues that the D/C should be affirmed in that the no statute in effect at the time of Honeycutt’s injury, Section 440.13(1), Florida Statutes (1979), should control. However, in Bonnie Heath Farms v. Ferrell, 458 So. 2d 1147 (Fla. 1st DCA 1984), this [*987] court affirmed a 1984 compensation order awarding attendant care services retroactively to 23 January 1976. In doing so, the court pointed out that the current statute, Section 440.13(2)(d) as amended in 1983 to codi…
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Kraft Dairy Grp. & Ideal Mut. Ins. Co. v. Sorge, 509 So. 2d 1156 (Fla. 1st DCA 1987)…e of the injury so requires; provided, however, family members shall not be paid for such care when the services they provide do not go beyond those which are normally provided by family members on a gratuitous basis. Bonnie Health Farm v. Ferrell, 458 So. 2d 1147 (Fla. 1st DCA 1984), indicates that this statutory amendment merely codifies the existing decisional rule, and contemplates compensation for family members who provide nonprofessional care required by an industrial injury. Where an industrial injury…
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Kraft Dairy Grp. & Fla. Ins. Guar. Ass'n v. Cohen, 645 So. 2d 1072 (Fla. 1st DCA 1994)…nt to this paragraph be compensated for more than a total of 12 hours per day. . The argument that the compensation payable to Mrs. Cohen is not restricted by the statute because she is a CNA is also somewhat bolstered by a note in Farm v. Ferrell, 458 So. 2d 1147 (Fla. 1st DCA 1984), where the court noted that appellee argued persuasively that it may be discriminatory to presume that after the claimant's nurse married him she performed merely gratuitous services normally performed by a spouse rather than pro…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Walt Disney World Co. v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983)