PEDRO LUIS PEREZ, APPELLANT/CROSS-APPELLEE,
v.
PENNSUCO CEMENT & AGGREGATES AND INSURANCE COMPANY OF NORTH AMERICA, APPELLEE/CROSS-APPELLANT
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In a workers' compensation cross-appeal, the court reversed an award of attendant care services to Perez's wife, finding insufficient evidence that she actually performed eight hours per day of care while working full-time. The court held that claimants must prove by competent, substantial evidence the actual quantity, quality, and duration of attendant services provided.
The court reversed the attendant care award, holding that a blanket award without regard to actual performance of services is error. Claimants must prove by competent, substantial evidence the quantity, quality, and duration of attendant services claimed. The award for hospital care was also properly reversed per the claimant's agreement.
[1] A claimant bears the burden to prove by competent, substantial evidence the quantity, quality, and duration of attendant services claimed.
[2] A blanket award of attendant care services without regard to the actual performance of those services is error.
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Join FLexlaw to unlock all legal intelligence“The burden is on the claimant to prove by competent, substantial evidence the quantity, quality, and duration of the attendant services claimed.”
Establishes the legal standard that claimants must prove actual attendant care services provided, not merely theoretical need for services.
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Join FLexlaw to unlock all legal intelligencePerez was injured and entitled to attendant care services. From August 1, 1981 through February 28, 1983, his wife was awarded compensation for eight …
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MILLS, Judge.
This is a cross-appeal, the direct appeal by Perez having been voluntarily dismissed, from a workers’ compensation order finding Perez entitled to attendant care services and awarding his wife compensation for those services. Pennsuco Cement & Aggregates and the Insurance Company of North America (E/C) contend the order is not supported by competent substantial evidence. We agree and reverse with directions on remand.
The E/C argues, in summary, that the wife should not have been awarded payment for attendant care services from 1 August 1981 through 28 February 1983 on the basis of eight hours per day, seven days a week, because she was working full-time during this period; only devoting one hour before work and one hour after work to the care of her husband. Perez’s minimal response to this argument is that the wife is entitled to reimbursement for the time her mother spent performing services for Perez. However, there is nothing in the record to indicate how much time Perez’s mother-in-law spent caring for him, other than testimony by the wife that she fixed his lunch.
The E/C also argues that it was error for the deputy commissioner to make an attendant care award for the time Perez spent in the hospital based on Prestressed Systems, Inc. v. Goff, 461 So. 2d 260 (Fla. 1st DCA 1984). The time period involved is from 20 September 1982 until 5 October 1982. In his brief, Perez concedes the award allowed for this time is erroneous.
According to Walt Disney World Co. v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983), a blanket award of attendant care or services without regard to the actual performance of those services is error. In Harrison, the claimant was required to wear a full body cast for several weeks, and therefore was severely restricted in her movement. Not having been informed by the employer that she was entitled to attendant services, the claimant attempted to care for herself with limited help from her mother and a friend. Upon filing a claim, the claimant in Harrison was awarded attendant care on the basis of 16 hours a day, the time she spent awake. However, on appeal this award was reversed, the court stating it was error for the depu ty commissioner to allow compensation for attendant care services without regard to the actual performance of services by persons other than the claimant. The court went on to state: “The burden is on the claimant to prove by competent, substantial evidence the quantity, quality, and duration of the attendant services claimed.” See also, G & B Equipment v. Miller, 466 So. 2d 437 (Fla. 1st DCA 1985).
In the present case, the record does not contain competent substantial evidence that Perez’s wife actually spent eight hours a day performing necessary services for the claimant for the period of time at issue. Therefore, we find we must reverse the deputy commissioner’s order and remand for further proceedings so that testimony may be taken on the issue of how much time was actually spent by the wife or any other person performing attendant services, including passive attendant care, from 1 August 1981 through 28 February 1983, the date the wife stopped working and began staying home full-time with Perez. Further, we modify the order, per Perez’s agreement, to reflect no award for the time period he was hospitalized.
Reversed and remanded with directions.
BOOTH, C.J., and WENTWORTH, J., concur.
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Ramada INN S. Airport v. Lamoureux, 578 So. 2d 48 (Fla. 1st DCA 1991)…for past attendant care based solely upon the claimant’s need for care, and without regard to the services actually performed. See Orange County Sheriffs Department v. Perez, 541 So. 2d 652 (Fla. 1st DCA 1989); Perez v. Pennsuco Cement & Aggregates, 504 So. 2d 1274 (Fla. 1st DCA 1986). Because there is no competent substantial evidence in the record to support a finding that claimant’s son spent 50 hours per week assisting her, we must reverse the award and remand for further proceedings so that testimony may…
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Francie Diana v. HLS Cos. & CNA Ins. Cos., 670 So. 2d 125 (Fla. 1st DCA 1996)…y or duration of the care requested was not sufficient. The burden is on the claimant to prove by competent, substantial evidence the quantity, quality, and duration of the compensable attendant services claimed. Perez v. Pennsuco Cement Aggregates, 504 So. 2d 1274, 1276 (Fla. 1st DCA 1986)(quoting Walt Disney World Co. v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983)). Attendant care services are generally not compensable “when those services merely reflect a claimant’s individual choice as to ‘quality of life…
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Bojangles v. Kuring, 598 So. 2d 250 (Fla. 1st DCA 1992)…the caregiver. See Ramada Inn South Airport v. Lamour-eux, 578 So. 2d 48, 49 (Fla. 1st DCA), rev. denied, 587 So. 2d 1328 (Fla.1991); Orange County Sheriff's Dep’t v. Perez, 541 So. 2d 652 (Fla. 1st DCA 1989); Perez v. Pennsuco Cement & Aggregates, 504 So. 2d 1274 (Fla. 1st DCA 1986). Although the JCC’s order cites competent substantial evidence establishing the claimant’s need for care, no mention is made of the hours expended by the husband. In fact, the husband’s own testimony indicates that only six hours…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Walt Disney World Co. v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983)
- Prestressed Sys., Inc. v. Goff, 461 So. 2d 260 (Fla. 1st DCA 1984)
- G & B Equip., Inc. v. Miller, 466 So. 2d 437 (Fla. 1st DCA 1985)
- Hayward Trucking, Inc. v. AETNA Ins. Co., 466 So. 2d 437 (Fla. 1st DCA 1985)