JACKQUELINE LEMUS, APPELLANT,
v.
OCALA STAR BANNER AND LIBERTY MUTUAL INSURANCE CO., APPELLEES

Fla. 1st DCA | 1996-04-19
No. 95-1459
ZEHMER, C.J., and ALLEN, J., concur.
672 So. 2d 76 Florida District Court of Appeal, First District (1996) Caution
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Jackqueline Lemus, a permanently and totally disabled workers' compensation claimant, appealed the Judge of Compensation Claims' decision to reimburse her unemployed adult son for attendant care services at the federal minimum wage. The court affirmed, holding that the statutory definition of 'family member' includes adult children regardless of prior household residence, and the legislature's enumerated list demonstrates no household-cohabitation requirement.


Holding

The court held that the statutory definition of 'family member' includes the claimant's adult son because the statute explicitly enumerates family members (including spouse, father, mother, brother, sister, child, grandchild, father-in-law, mother-in-law, aunt, and uncle) without requiring household cohabitation. The JCC correctly applied the plain meaning of the statute in determining the son was entitled to reimbursement at the federal minimum wage.


Headnotes

[1] The plain meaning of a statutory provision will be applied by a court when construing workers' compensation law.

[2] The statutory definition of "family member" for purposes of workers' compensation reimbursement for nonprofessional attendant care includes enumerated blood relatives and…

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Key Quotes

“The statute clearly defines family members to include certain enumerated blood relatives and in-laws of a workers' compensation claimant. The list of family members contains at least a few relatives that do not typically live under the same roof.”

The court's reasoning that the statutory definition does not require household cohabitation, as evidenced by the inclusion of relatives like aunts, uncles, and in-laws who may not reside with the claimant.

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Facts & Procedural History

Lemus became permanently and totally disabled from a work-related accident. After her husband suffered an injury in 1991, her adult son, who was unemp…

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Opinion of the Court
KAHN, Judge.

[*77] KAHN, Judge.

Appellant Jaekqueline Lemus challenges the construction given by the judge of compensation claims (JCC) to the provision of the workers’ compensation law that defines “family member” for purposes of reimbursement payment for nonprofessional attendant or custodial care. Because the JCC properly applied the plain meaning of the statutory provision, we affirm.

Appellant is permanently and totally disabled as the result of a work-related accident. After appellant’s husband suffered an injury in 1991, appellant’s adult son, unemployed at the time, moved back home to provide the care and assistance necessitated by appellant’s condition. In the claim below, appellant sought payment for these attendant care services provided by her son. The JCC awarded care for eight hours a day, seven days a week from the date appellant first provided notice to the employer/earrier and for “so long as such care may be medically necessary.” The JCC found, however, that appellant’s son should be paid in accordance with the federal minimum wage, pursuant to section 440.13(2)(h)l, Florida Statutes (1991).

Section 440.13(2)(h) provides:

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, the per hour value shall be that of the federal minimum wage.

2. If the family member is employed and elects to leave that employment to provide attendant or custodial care, the per hour value of that care shall be at the per hour value of such family member’s former employment, not to exceed the per hour value of such care available in the community at large. In no event shall a family member or a combination of family members providing non-professional attendant or custodial care pursuant to this paragraph be compensated for more than a total of 12 hours per day.

“Family member” is defined for purposes of this subsection to be a spouse, father, mother, brother, sister, child, grandchild, father-in-law, mother-in-law, aunt, or uncle.

On appeal, Lemus asserts that the court should restrict the meaning of “family member” to members of the claimant’s family living with the claimant in her household. Because appellant’s son was living apart from the family and moved home only to care for his mother, appellant would thus exclude him from the statutory definition of family member. Citing Walt Disney World v. Harrison, 443 So. 2d 389 (Fla. 1st DCA 1983), she argues that it is the responsibility of the employer/carrier, not the claimant’s family members, to provide necessary attendant care.

Appellee correctly points out, however, that the JCC has merely applied the plain meaning of the statutory definition and this court therefore has no authority to further construe the statute. See e.g., City of Orlando v. Wilkinson, 624 So. 2d 799, 800 (Fla. 1st DCA 1993); Steinbrecher v. Better Constr. Co., 587 So. 2d 492, 493-94 (Fla. 1st DCA 1991). The statute clearly defines family members to include certain enumerated blood relatives and in-laws of a workers’ compensation claimant. The list of family members contains at least a few relatives that do not typically live under the same roof. In particular, the statute mentions aunt, uncle, father-in-law, mother-in-law, and grandchild. The legislature chose to link the reimbursement restriction to this definition of family members, rather than provide a more narrow restriction to members of the same household.

Because appellant’s son is a “family member” as defined in the statute and was unemployed at the time he began to provide attendant care services to his mother, the JCC correctly determined that he was entitled to reimbursement at the federal minimum wage.

AFFIRMED.

ZEHMER, C.J., and ALLEN, J., concur.


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Citator

Cited By

  • Barnett Socolow v. Flanigans Enters. & Protegrity Servs., 877 So. 2d 742 (Fla. 1st DCA 2004)
    …ded by family members gratuitously. § 440.13(2)(d), Fla. Stat. (Supp.1988). Kelli became Appellant’s family member, as defined by section 440.13, only after her marriage to Sam. See § 440.13(2)(e), Fla. Stat. (Supp.1988); Lemus v. Ocala Star Banner, 672 So. 2d 76 (Fla. 1st DCA 1996) (upholding award of compensation at federal minimum wage to claimant’s adult son who provided assistant care as a family member). Cf. Walt Disney World Co. v. McCrea, 754 So. 2d 196, 198 (Fla. 1st DCA 2000) (noting that the defin…
  • Walt Disney World Co. v. McCREA, 754 So. 2d 196 (Fla. 1st DCA 2000)
    …ction 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 include only those members of the claimant’s family living in her household, which would have allowed her son to be paid more than federal minimu…

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