SOUTHLAND CORPORATION AND AMERICAN MOTORIST INSURANCE COMPANY, APPELLANTS/CROSS-APPELLEES,
v.
YRINA ANAYA, CATHY ANAYA, AND HENA ANAYA, APPELLEES/CROSS-APPELLANTS
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This case involves a workers' compensation appeal concerning attendant care services. The appellate court affirmed the award of attendant care but reversed the hourly rate awarded, directing the lower court to compensate at the market rate.
The court held that there was sufficient evidence to support the award of attendant care services. However, the court held that family members providing attendant care should be compensated at the market rate, not the rate they previously earned elsewhere.
[1] A deputy commissioner has considerable latitude and discretion in determining whether to reopen a workers' compensation case.
[2] A deputy commissioner does not abuse discretion by refusing to reopen a case when the additional evidence sought to be introduced is merely cumulative.
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“We find there is competent, substantial evidence in the record to support the award of attendant care services seven days a week, six hours per day.”
This quote establishes the court's affirmation of the award for the necessity and extent of attendant care services.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe employer/carrier (e/c) appealed an award of attendant care services, and the claimant and her daughters cross-appealed the hourly rate. The deputy…
The full statement of facts, procedural history, and disposition for this case are member content.
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ERVIN, Judge.
The employer/carrier (e/c) raises three issues in its workers’ compensation appeal. Claimant and claimant’s daughters raise one issue in their cross-appeal. We affirm as to the direct appeal and reverse as to the cross-appeal.
In issues one and two, the e/c objects to the award of attendant care services and the extent of the services awarded.
We find there is competent, substantial evidence in the record to support the award of attendant care services seven days a week, six hours per day. Regarding the third issue raised by the e/c, we conclude that there was no abuse of discretion by the deputy commissioner (dc) in failing to allow the e/c to reopen the case in order that additional evidence be presented.
The evidence the e/c sought to introduce was merely cumulative, as considerable evidence on the same subject had already been introduced at the hearing. We also observe that a dc has considerable latitude and discretion in determining whether to reopen a case. See Exxon Co. v. Alexis, 370 So. 2d 1128, 1131 (Fla.1978). In considering the cross-appeal, we agree with the cross-appellants that family members performing attendant care are to be compensated at the market rate. See Sheraton Bal Harbour v. Platis, 447 So. 2d 987, 988 (Fla 1st DCA 1984) (hourly rate for attendant care provided by wife was reduced to the market rate for the type of services provided by the wife).
The record in the instant case reflects that the market rate for attendants in Miami is $6.25 per hour for an eight-hour shift. The dc awarded claimant attendant care at the hourly wage of $3.35 per hour, based upon the compensation that claimant’s daughters had received while working at a uniform company, before leaving their jobs to care for their mother. The award of attendant care in the amount of $3.35 per hour is reversed, and on remand the dc is directed to award claimant attendant care at the market rate.
AFFIRMED in part, REVERSED in part and remanded for consistent proceedings.
SMITH, C.J. and MILLS, J., concur.
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Amos A. Sistrunk v. City OF Dunedin & Gallagher Bassett Ins. Servs., 513 So. 2d 200 (Fla. 1st DCA 1987)…for attendant care). Finally, we affirm the dc’s valuation of the wife’s services at the rate of $5.00 per hour. Family members providing attendant care are to be compensated at the market rate for such services. See Southland Corporation v. Anaya, 513 So. 2d 203 (Fla. 1st DCA 1987); Sheraton Bal Harbour v. Platis, 447 So. 2d 987 (Fla. 1st DCA 1984). The evidence in the record, given by the appellant’s wife, reflects that the market rate for attendant care services was $6.00 an hour. Although this testimony…
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Buena Vida Townhouse Ass'n & Cont'l Loss Adjusting Co. v. Parciak, 603 So. 2d 26 (Fla. 1st DCA 1992)…-372, Laws of Florida, an award of attendant care provided by a family member required payment at the prevailing market rate for such services. See e.g., Pascual v. Pan American Hospital, 528 So. 2d 478 (Fla. 1st DCA 1988); Southland Corp. v. Anaya, 513 So. 2d 203 (Fla. 1st DCA 1987). However, chapter 88-372 altered this rule, providing instead that: The value of nonprofessional attendant or custodial care provided by a family member shall be determined as follows: 1. If the family member is not employed, t…
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Burris v. Goodyear, 577 So. 2d 1376 (Fla. 1st DCA 1991)…of this legislation was to supersede case law which had held that a family member providing custodial care to an injured worker was entitled to reimbursement at the market rate in the community where the worker resided. See Southland Corp. v. Anaya, 513 So. 2d 203 (Fla. 1st DCA 1987); Sheraton Bal Harbour v. Platis, 447 So. 2d 987 (Fla. 1st DCA 1984). Thereafter, section 440.13(2)(e)2 was again amended, effective October 1, 1989, by adding the following sentence: “In no event shall a family member providing…
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
- Exxon Co. v. Alexis, 370 So. 2d 1128 (Fla. 1978)
- Sheraton BAL Harbour & Ins. Co. of N. Am. v. Platis, 447 So. 2d 987 (Fla. 1st DCA 1984)