KING LUMBER COMPANY AND FEISCO, APPELLANTS,
v.
RENFORD BLOOMFIELD, APPELLEE
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The Florida First District Court of Appeal affirmed a workers' compensation judge's order awarding a permanently totally disabled claimant 12 hours of daily attendant care from December 1986 to September 1987, and 24 hours daily thereafter, including care provided by the claimant's nephew. The court held that the 1989 statutory amendment limiting family-member attendant care to 12 hours per day did not apply to nephews, who fall outside the statutory definition of 'family member.'
The court held that competent, substantial evidence supported the award of 12 hours daily attendant care through September 11, 1987, and 24 hours daily thereafter as medically necessary benefits. The 1989 statutory amendment limiting attendant care compensation to 12 hours per day for family members did not apply to the claimant's nephew, as nephews are excluded from the statutory definition of 'family member,' and thus the nephew could be compensated for providing 24-hour daily care both before and after October 1, 1989.
[1] An order awarding attendant care benefits based on a claimant's current condition is a new award of medical benefits, not a modification of a prior order fixing permanent…
[2] Competent, substantial evidence of a claimant's current physical condition can support an award of attendant care benefits that differs from the quantum of care previousl…
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Join FLexlaw to unlock all legal intelligence“it is a new award of medical benefits found to be medically necessary, not a modification or change in class of permanent benefits fixed by the prior order”
Establishes the court's recharacterization of the order as one awarding new medical benefits rather than modifying a prior award, which affects the standard of review
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Join FLexlaw to unlock all legal intelligenceRenford Bloomfield was a permanently totally disabled workers' compensation claimant who required attendant care. An earlier order had awarded 12 hour…
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WENTWORTH, Judge.
Employer/carrier seek review of a workers’ compensation order by which the judge of compensation claims ordered the employer/ carrier to provide the permanently totally disabled claimant with past and future attendant care, with attendant care awarded for 12 hours per day between December 6, 1986 and September 11, 1987, and for 24 hours per day after that date. Services after September 1988 were rendered by claimant’s nephew.
The parties present their argument in terms of record support for “modification” of the terms of an earlier order that awarded attendant care for 12 hours per day, based on “change of condition.” Cf, section 440.28, Florida Statutes.
However, the order on appeal is more properly reviewed as one which simply awards medical benefits for claimant’s condition as it existed after the date of the earlier order.
Thus, it is a new award of medical benefits found to be medically necessary, not a modification or change in class of permanent benefits fixed by the prior order.
We find competent, substantial evidence as to claimant’s current physical condition sufficient to negate any arguable inference based on law of the case as to the quantum of care previously awarded, and sufficient to support the award of such care for 12 hours per day through September 11, 1987, and for 24 hours per day from that point forward. See City of North Miami v. Towers, 557 So. 2d 112 (Fla. 1st DCA 1990), and Builders Square v. Drake, 557 So. 2d 115 (Fla. 1st DCA 1990).
This court’s opinions in Mr. C’s TV Rental v. Murray, 559 So. 2d 452 (Fla. 1st DCA 1990), and Williams v. Amax Chemical Corp., 543 So. 2d 277 (Fla. 1st DCA 1989), indicate that the 1989 amendment to section 440.13(2)(e)2 (the validity of which is not questioned by the parties) should be applied to payments for services rendered after the effective date of the amendment, whether or not such benefits had been awarded by a prior order. That amendment limits to 12 hours per day the amount of compensation payable to a family member providing claimant with attendant care services.
However, because “family member” is defined to exclude a nephew, section 440.13(2)(e), Florida Statutes (1989), claimant’s nephew should be compensated for providing 24 hour-per-day care to his uncle both before and after October 1, 1989, even assuming applicability of the amendment to those attendant care benefits payable after October 1, 1989.
Affirmed.
ERVIN and WIGGINTON, JJ., concur.
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Parave v. TRI Cnty. Sec., Inc., 737 So. 2d 637 (Fla. 1st DCA 1999)…or “surveillance” attendant care provided by claimant’s fiancee, where the judge of compensation claims has found that claimant is in need of such care. See Builders Square v. Drake, 557 So. 2d 115 (Fla. 1st DCA 1990); King Lumber Co. v. Bloomfield, 560 So. 2d 389 (Fla. 1st DCA 1990); Collura v. Multi Line Can Company, 598 So. 2d 1072 (Fla. 1st DCA 1992).…
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Burris v. Goodyear, 577 So. 2d 1376 (Fla. 1st DCA 1991)…IN, Judge, concurring. Because of this court’s decisions in Thorarinsson v. Robert F. Wilson, Inc., 563 [*1380] So. 2d 710 (Fla. 1st DCA 1990); Firestone Tire & Rubber v. Knowles, 561 So. 2d 1293 (Fla. 1st DCA 1990); King Lumber Co. v. Bloomfield, 560 So. 2d 389 (Fla. 1st DCA 1990); and Williams v. Amax Chemical Corp., 543 So. 2d 277 (Fla. 1st DCA 1989), construing Section 440.13(2)(e), Florida Statutes (Supp.1988), as applying to injuries occurring before the effective date of that amended statute, I feel…
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Walt Disney World Co. v. McCREA, 754 So. 2d 196 (Fla. 1st DCA 2000)…Fla. Stat. (1997) (“[T]he laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer.”). Cf. King Lumber Co. v. Bloomfield, 560 So. 2d 389 (Fla. 1st DCA 1990) (the definition of “family member” in section 440.13 does not include a nephew). In Lemus v. Ocala Star Banner, 672 So. 2d 76 (Fla. 1st DCA 1996), this court rejected the claimant’s suggestion that the term “family member” should…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- MR. C's TV Rental & Liberty Mut. Ins. v. Murray, 559 So. 2d 452 (Fla. 1st DCA 1990)
- Cameo Hotel & Apts., Ltd. v. Rhoda Morris and Audrey Lewis, 543 So. 2d 277 (Fla. 3d DCA 1989)
- Williams v. Amax Chem. Corp. & Underwriters Adjusting Co., 543 So. 2d 277 (Fla. 1st DCA 1989)
- Builders Square & KM Admin. Servs. v. Drake, 557 So. 2d 115 (Fla. 1st DCA 1990)
- State v. Exum Walker, 557 So. 2d 112 (Fla. 5th DCA 1990)