PATRICIA VICKERS, APPELLANT,
v.
UNITY OF LAKE WORTH AND COMMERCIAL UNION INSURANCE COMPANY, APPELLEES
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A workers' compensation claimant appealed a judge's denial of additional attendant care and increased payment rates for family member care services. The court affirmed the denial of increased rates for previously awarded care but reversed and remanded regarding the request for additional attendant care, finding the judge failed to adequately address evidence of a new bladder condition.
The court affirmed the denial of increased rates for previously awarded attendant care services, as a prior award at minimum wage governs that care. However, the court reversed the denial of additional attendant care, finding the judge failed to adequately address evidence of a bladder condition requiring additional care. The payment rate for any additional care would not be controlled by the minimum wage provision since the family member is employed.
[1] A prior order awarding continuing attendant care at minimum wage precludes a subsequent request for an increased rate of payment for those same services.
[2] A prior order awarding continuing attendant care does not govern a subsequent request for additional attendant care or the rate of payment for such additional care.
Previewing 2 of 5 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“a continuing award of attendant care had been made in a prior order with payment at minimum wage, we affirm the denial of the request for an increased rate of payment as to those services”
Establishes that previously awarded attendant care rates at minimum wage are controlled by the prior order and cannot be increased
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Join FLexlaw to unlock all legal intelligenceA workers' compensation claimant had previously received an award of attendant care provided by a family member at minimum wage rates. The claimant re…
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ALLEN, Judge.
The claimant appeals a workers’ compensation order by which the judge denied a request for additional attendant care, and an increase in the rate of payment for a family member’s attendant care services. Because a continuing award of attendant care had been made in a prior order with payment at minimum wage, we affirm the denial of the request for an increased rate of payment as to those services. See Hardrives of Delray Inc. v. Stimely, 670 So. 2d 108 (Fla. 1st DCA 1996).
However, the prior order does not govern the request for additional care, or the rate of payment in connection therewith. Hardrives; see also Caron v. Systematic Air Services, 576 So. 2d 372 (Fla. 1st DCA 1991).
Nor would the rate of payment for any additional care be controlled by section 440.13(2)(e)l, Florida Statutes (1989), as that provision applies only if the family member is not employed. Frederick Electronics v. Pettijohn, 619 So. 2d 14 (Fla. 1st DCA 1993); Buena Vida Townhouse Ass’n v. Parciak, 603 So. 2d 26 (Fla. 1st DCA 1992).
Although the judge found that the self-employed family member’s occupation is not a full time traditional endeavor, and that it encompasses sufficient flexibility to accommodate the claimant’s attendant care needs without altering the circumstances of the employment, these factors do not serve to invoke section 440.13(2)(e)l, as, the family member is still employed.
In the appealed order the judge did not directly address the evidence suggesting that the claimant has a bladder condition which may be requiring additional attendant care beyond the amount previously awarded.
The record does not otherwise reflect the judge’s consideration of this evidence, and in accordance with cases such as Philpot v. City of Miami, 541 So. 2d 680 (Fla. 1st DCA 1989), we reverse the appealed order insofar as it denies such additional care, and remand the case for further consideration or explication of the judge’s reasoning as to this matter. A remand is not obviated by the judge’s finding that the family member is not on call for attendant care during all of the evening hours, as the basis of this finding is not entirely clear and it may reflect a misapprehension regarding the necessary predicate for an on call attendant care award. As delineated in cases such as Builders Square v. Drake, 557 So. 2d 115 (Fla. 1st DCA 1990), such an award is not precluded merely because the attendant also engages in other activities and is not physically ministering to the claimant during every moment that the attendant is on call.
The appealed order is affirmed in part and reversed in part, and the case is remanded.
KAHN and DAVIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Philpot v. City OF Miami, 541 So. 2d 680 (Fla. 1st DCA 1989)
- Caron v. Systematic AIR Servs. & State Farm Ins., 576 So. 2d 372 (Fla. 1st DCA 1991)
- Thurston McCLAIN v. State, 576 So. 2d 372 (Fla. 2d DCA 1991)
- Builders Square & KM Admin. Servs. v. Drake, 557 So. 2d 115 (Fla. 1st DCA 1990)
- Buena Vida Townhouse Ass'n & Cont'l Loss Adjusting Co. v. Parciak, 603 So. 2d 26 (Fla. 1st DCA 1992)
- Hardrives OF Delray Inc. v. Stimely, 670 So. 2d 108 (Fla. 1st DCA 1996)
- Frederick Elecs. & Royal Ins. Co. v. John, 619 So. 2d 14 (Fla. 1st DCA 1993)