JULIA PASCUAL, APPELLANT,
v.
PAN AMERICAN HOSPITAL AND ARGONAUT INSURANCE CO., APPELLEES

Fla. 1st DCA | 1988-07-08
No. 87-1604
MILLS and WIGGINTON, JJ., concur.
528 So. 2d 478 Florida District Court of Appeal, First District (1988) Positive Treatment
Cited by 2 cases

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Synopsis

In this workers' compensation case, the claimant appealed an order modifying an earlier award for home attendant care. The court affirmed the finding that outside attendant care should remain at 40 hours per week but reversed the decision to maintain the daughter's hourly rate at $2.00, holding that family members providing attendant care must be reimbursed at the market rate rather than reduced rates based on the nature of family relationships.


Holding

The court held that the deputy commissioner erred in denying the increase to the daughter's hourly rate because family members providing attendant care must be reimbursed at the market rate, not reduced based on their family relationship or the claimant's age. The court affirmed the decision regarding outside attendant care hours because the claimant failed to raise this issue in her petition for modification.


Headnotes

[1] A claimant's need for attendant care due to advanced age does not affect the hourly rate to be paid to a caregiver.

[2] A caregiver's provision of services normally rendered by a family member relates to the number of compensated hours, not the hourly rate.

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Key Quotes

“family members are to be reimbursed for such care at the market rate”

Establishes the controlling legal principle that family members cannot be paid below-market rates for attendant care services.

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Facts & Procedural History

Claimant, now 80 years old, suffered a permanent and total disability from a 1973 industrial accident. A 1978 order awarded 112 hours per week of home…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

The claimant in this workers’ compensation case appeals an order entered on her petition for modification of an earlier order awarding home attendant care. We affirm in part, reverse, and remand.

Claimant, who is currently 80 years old, was injured in a 1973 industrial accident leaving her permanently and totally disabled. In 1978, the Judge of Industrial Claims entered an order finding that the claimant was in need of 112 hours per week of home attendant care, and that such care was to be provided by claimant’s daughter, Reina Gomez, at the rate of $2.00 per hour, with the exception of the 40 hours per week during which Gomez worked at her regular job outside the home. The employer/carrier were ordered to initially reimburse claimant for 40 hours per week at $2.50 per hour (the rate at which Gomez had hired a family friend and registered nurse to attend to her mother) and, after May 25, 1978, to either increase the hourly rate to $2.65 (the minimum wage at that time) or to provide 40 hours per week of attendant care selected by the employer/carrier. In 1986, claimant filed a petition for modification of the 1978 order, seeking an increase of both the $2.65 per hour being paid for outside attendant care and the $2.00 per hour being paid to Gomez, based on a deterioration in the claimant’s condition and an increase in the hourly wage for attendant care services. The deputy commissioner entered an order on September 29, 1987, finding that the claimant continued to require 112 hours per week of attendant care, that 40 hours per week were to be provided by outside help and 72 hours by Gomez, that $6.00 per hour was a reasonable rate for outside attendant care, and that $2.00 per hour was a reasonable rate for Gomez since a portion of the claimant’s disability was due to advanced age and a portion of the services provided by Gomez were those which would normally be provided by a loving daughter. Claimant argues on appeal that the deputy commissioner erred in failing to increase the hourly rate paid to Gomez for attendant care, and in failing to increase the number of hours of attendant care to be provided by outside help.

We agree with claimant’s first argument for several reasons.

First, the deputy commissioner erred in denying the requested increase in hourly rate to Gomez on the basis that a portion of the claimant’s disabilities were related to her advanced age, since such a finding is, at the very most, related to the claimant’s need for attendant care (which the deputy commissioner specifically found was not in dispute) and not to the hourly rate Gomez should be paid for providing care. Likewise, the deputy commissioner’s finding that a portion of Gomez’s services were those normally provided by a loving daughter, even if supported by the record, is related to the number of hours Gomez should be compensated for providing attendant care, and not to the hourly rate she should be paid for doing so. Since the deputy commissioner specifically determined that the claimant was in need of 72 hours per week of attendant care by Gomez, such a finding was unnecessary.

Third, given the fact that Gomez was to provide 72 hours per week of attendant care, the general rule is that family members are to be reimbursed for such care at the market rate. 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). Although the deputy commissioner ordered that the claimant be reimbursed $6.00 per hour for outside attendant care, that fig ure was based on the amount Gomez had been paying for outside care by hiring friends of the family.

The evidence presented at the hearing indicated the market rate to be between $7.00 and $9.50 per hour. Since the deputy commissioner did not make a specific finding of market rate, we remand for him to do so, and to award that amount to Gomez.

We affirm the second issue raised by the claimant — that the deputy commissioner erred in failing to award more than 40 hours per week of outside attendant care — since that issue was not raised in either the claimant’s petition for modification or the pretrial stipulation. Austin Co. v. Lindenberger, 410 So. 2d 601 (Fla. 1st DCA 1982).

Accordingly, we affirm in part, reverse, and remand for further proceedings.

MILLS and WIGGINTON, JJ., concur.


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Citator

Cited By

  • …member’s attendant care. Prior to the enactment of chapter 88-372, 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 dete…

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