Amador v. Parts Depot, Inc.

• Decision Date: 23 June 1987
• Docket Number: No. BP-398,BP-398
• Citation: 12 Fla. L. Weekly 1523,508 So.2d 1320
• Parties: 12 Fla. L. Weekly 1523 Alejandro AMADOR, Appellant, v. PARTS DEPOT, INC. and Royal Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 1320

508 So.2d 1320

12 Fla. L. Weekly 1523

Alejandro AMADOR, Appellant, v. PARTS DEPOT, INC. and Royal Insurance Company, Appellees.

No. BP-398.

District Court of Appeal of Florida First District.

June 23, 1987.

L. Barry Keyfetz, of Keyfetz, Poses & Halpern, P.A., Miami, for appellant.

Karen M. Gilmartin, of Adams, Kelley & Kronenberg, Miami, for appellees.

MILLS, Judge.

Alejandro Amador appeals from an order of the deputy commissioner awarding attendant care by his wife for five hours a day, seven days a week, alleging that the award was an abuse of discretion in the face of evidence that attendant care was required twenty-four hours a day, seven days a week. Although we affirm the deputy's determination of entitlement to attendant care, we reverse the number of hours awarded and remand for entry of an award commensurate with the clear evidence in this case.

As a result of a fall occurring while employed by the Parts Depot, Inc. (E/C), Amador suffers from organic brain damage. His treating physician testified, without substantial contradiction that, as a result of the brain injury, Alejandro suffers a memory problem which affects all of his functioning, including remembering basic needs, such as bathing, toileting and eating. Further, he cannot be left by himself because he does not have the judgment not to wander off or harm himself. While he has the physical ability to take his medication, dress, eat and bathe (save for his lower body, which he cannot reach due to a spinal injury suffered in the same accident), he cannot remember to do any of these things by himself.

For example, he must be given his medication and told to take it; food must be prepared for him which he must be directed to eat as well as continually reminded to eat during the meal; he must have his clothes picked out for him, otherwise he attempts to wear inappropriate clothing; he has to be told to bathe as well as to undress before doing so and must have assistance bathing his lower body. He cannot be left alone for even a few hours, unless he is locked in, because he wanders off and cannot remember where he is. Everyone is a stranger to him save his wife, and he becomes frightened and restless whenever she leaves him for even a few minutes. He must also have assistance with exercises for half an hour, twice a day.

Although Amador sleeps at night from 10:00 p.m. to approximately 7:30 a.m., he suffers from insomnia and gets up every two to three hours; because of his need for supervision, his wife must get up with him. He also naps daily from 10:00 a.m. to 12:00 Noon and again for two hours in the middle of the afternoon. During all waking hours, he requires the services and constant supervision described above. It was the ultimate opinion of the treating physician that, without the twenty-four-hour-a-day care and supervision provided by his wife, Alejandro would have to be institutionalized. Mrs. Amador had given up a $50.00 per day private nursing career when her husband was injured because of this need for her constant presence at home.

In his order on Amador's claim for attendant care services, the deputy found that he required supervision twenty-four hours a day, seven days a week to insure that he did not wander off, took his medication, ate, exercised, bathed and dressed. However, since her supervisory care "permitted other activities", the deputy concluded that Mrs. Amador should be compensated for only five hours a day, seven days a week. The hourly rate was set at $7.00 per hour and is not disputed on appeal.

We find this case clearly...