KRAFT DAIRY GROUP AND IDEAL MUTUAL INS. CO., APPELLANTS,
v.
LARRY R. SORGE, APPELLEE
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In a workers' compensation appeal, the court affirmed an award of attendant care including ordinary household services provided by the claimant's spouse. The court held that when an industrial injury necessitates additional services beyond usual routine, compensation for nonprofessional care furnished by family members is proper, even retroactively and without an explicit request.
The court held that attendant care awards are proper when an industrial injury necessitates additional services beyond usual routine, even if provided by a family member. Retroactive awards without an explicit request are also appropriate when the nature of the injury imputes knowledge of the need for attendant care and there is no prejudice to the employer/carrier's ability to investigate.
[1] An employer must provide attendant care when the nature of an injury requires it, even if the services are provided by a family member, as long as those services go beyon…
[2] An attendant care award is proper even when furnished by a family member if the industrial injury necessitates additional services beyond the usual routine.
Previewing 2 of 3 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“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”
This statutory language establishes the rule that family member compensation is limited to services beyond normal family care
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Join FLexlaw to unlock all legal intelligenceThe claimant suffered an industrial injury that necessitated attendant care and household services he could no longer provide for himself. His spouse …
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WENTWORTH, Judge.
Appellant contends in this appeal from a workers’ compensation order that the deputy erred in the award of attendant care by including ordinary household services. We affirm.
As amended in 1983, section 440.13(2) states that:
The employer shall provide appropriate professional or nonprofessional custodial care when the nature 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 necessitates additional services beyond the usual routine an attendant care award is proper even though the additional services are furnished by a family member. See Walt Disney World, Co. v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983). In the present case the evidence establishes claimant’s need for attendant care and household services which he formerly provided for himself. The deputy’s award of payment for such services now provided by claimant’s spouse is thus appropriate within the rule recognized in Walt Disney World and Ferrell.
Attendant care was awarded retroactive to November 2, 1984, the date a claim was filed. The claim did not contain a request for attendant care and employer/carrier argue on appeal that such a retroactive award is improper. As Walt Disney World indicates, an employer/carrier may be responsible for the provision of attendant care even in the absence of a claimant request where the nature of the claimant’s injury and necessary treatment are such as to impute knowledge of the need for attendant care. Walt Disney World also suggests that a retroactive award without request may be appropriate where employer/carrier’s ability to investigate was not prejudiced. In the present case employer/carrier does not assert prejudice, and the nature of the injury and necessary treatment is such as to impute knowledge as to the need for attendant care.
Affirmed.
MILLS and BARFIELD, JJ., concur.
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Amos A. Sistrunk v. City OF Dunedin & Gallagher Bassett Ins. Servs., 513 So. 2d 200 (Fla. 1st DCA 1987)…w, then, that the corollary to the above rule must also be true: absent a showing of prejudice, the e/c cannot defend on the grounds of lack of notice, or that the claim was “ripe for adjudication” at a prior hearing. See Kraft Dairy Group v. Sorge, 509 So. 2d 1156 (Fla. 1st DCA 1987) (claimant was entitled to attendant care benefits on record showing that the e/c’s ability to investigate was not prejudiced, and the nature of the injury was such as to impute knowledge to the e/c as to claimant’s need for atten…
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Honeycutt v. R.G. Butlers Dairy & Whiting Nat'l Servs., 525 So. 2d 984 (Fla. 1st DCA 1988)…hat the current statute, Section 440.13(2)(d) as amended in 1983 to codify earlier decisional rulings clearly contemplates compensation for family members who render nonprofessional custodial care. Ferrell at 1148. Accord Kraft Dairy Group v. Sorge, 509 So. 2d 1156, 1157 (Fla. 1st DCA 1987); Sistrunk v. City of Dunedin, 513 So. 2d 200 (Fla. 1st DCA 1987) (claimant injured in July 1980, but 1983 statute used to affirm award of attendant care benefits). Therefore, we find that this argument is without merit. Wi…
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Smith v. DRW Realty Servs. & Aetna Life & Cas., 569 So. 2d 462 (Fla. 1st DCA 1990)…injury requires such benefits, Favors v. Walgreen Co., 557 So. 2d 951, 952 (Fla. 1st DCA 1990), and there is no evidence to support the judge’s finding that the employer/earrier was prejudiced by this lack of notice. See Kraft Dairy Group v. Sorge, 509 So. 2d 1156, 1157 (Fla. 1st DCA 1987). Based on the foregoing authorities, the judge erred in denying the claim for attendant care based on Smith’s failure to request it, and on the absence of medical recommendation for such care. The order is reversed and the…
Previewing 3 of 4 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)
- Bonnie Heath Farm & the Hartford v. Ferrell, 458 So. 2d 1147 (Fla. 1st DCA 1984)