Artigas v. Winn Dixie Stores, Inc.

• Citation: 578 So.2d 356,16 Fla. L. Weekly 1006
• Decision Date: 09 April 1991
• Docket Number: No. 89-2155,89-2155
• Court: Florida District Court of Appeals
• Parties: Estrella ARTIGAS, as Guardian, Appellant/Cross-Appellee, v. WINN DIXIE STORES, INC., and Crawford & Company, Appellees/Cross-Appellants. 578 So.2d 356, 16 Fla. L. Week. 1006

Page 356

578 So.2d 356

Estrella ARTIGAS, as Guardian, Appellant/Cross-Appellee, v. WINN DIXIE STORES, INC., and Crawford & Company,

Appellees/Cross-Appellants.

No. 89-2155.

578 So.2d 356, 16 Fla. L. Week. 1006

District Court of Appeal of Florida,

First District.

April 9, 1991.

Rehearing Denied May 15, 1991.

Alex Lancaster of Alex Lancaster, P.A., Sarasota, for appellant/cross-appellee.

Claire L. Hamner and Victoria H. Pflug of Dickinson, O'Riorden, Gibbons & Shields, P.A., Sarasota, for appellees/cross-appellants.

ALLEN, Judge.

This is an appeal from a workers' compensation order setting the date of the claimant's maximum medical improvement, awarding temporary total disability benefits for the period prior to that date, awarding permanent total disability benefits thereafter, and awarding compensation for attendant care furnished by the claimant's parents. The appellant is the mother and the appointed guardian for the incompetent adult claimant. The appellees are the employer and carrier. No error is asserted by any of the parties in the awarding of temporary total disability benefits prior to the date of maximum medical improvement, in the awarding of permanent total disability benefits thereafter, in the setting of the date of maximum medical improvement, or in relying upon Section 440.13(2)(e)(1), Florida Statutes, in setting the rate of compensation for attendant care services. However, the parties contend that the order under review reflects other errors by the judge of compensation claims.

The appellant argues that the judge was without jurisdiction to direct disbursements from the guardianship account to reimburse the claimant's parents for damages done to the parent's residence by the claimant and to reimburse them for room and board provided to the claimant. She also contends that the judge erred in reducing the attendant care benefits by the amount of the permanent total disability benefits. Finally, she argues that the order awarding compensation for attendant care services by the claimant's parents at an hourly rate of $3.35, the then-prevailing federal minimum wage, should have provided for the rate to increase automatically upon an increase in the federal minimum wage.

The appellees argue in their cross-appeal that there was an absence of competent substantial evidence to support the finding that the claimant was in need of 24-hour per day attendant care. They also contend that a family member providing nonprofessional attendant care pursuant to Section 440.13(2)(e), Florida Statutes, can be compensated for no more than 12 hours per day.

We hold that (1) competent substantial evidence supported the judge's finding that the claimant was in need of 24-hour per day attendant care; (2) a family member providing attendant care pursuant to Section 440.13(2)(e), Florida Statutes, can be compensated for no more than 12 hours per day; (3) the appellant's argument that the order should have provided for an automatic increase in the rate of compensation for attendant care upon an increase in the federal minimum wage was not raised before the judge of compensation claims and is therefore not preserved for appeal; (4) the judge of compensation claims lacked jurisdiction to direct the disbursements from the guardianship account; and (5) the judge also erred in directing that the attendant care benefits would be reduced by the amount of the permanent total disability benefits. We therefore affirm in part, reverse in part, and remand for entry of a new order in accordance with this opinion.

This case, which was the subject of an earlier appeal, Artigas v. Winn-Dixie Stores, Inc., 544 So.2d 1051 (Fla. 1st DCA 1989), involves a claimant who was injured unloading produce from his employer's truck in August of 1983. Although the initial injury was to the claimant's spine, his inability to cope with the injury resulted in the development of a mental disorder. The symptoms of the mental disorder progressively worsened over the years. Nevertheless, the appellees discontinued payment of temporary benefits in October of 1986. Thereafter, a circuit judge adjudicated the claimant to be incompetent and appointed his mother to serve as guardian of his person and property.

Testimony presented at the hearing before the judge of compensation claims revealed that the claimant's mental condition caused his conduct to become extremely irrational and sometimes destructive. As a result, he apparently caused some damage in his parent's home, where he had been living for several months prior to the hearing. Testimony was also offered for the purpose of establishing that the claimant's mental condition made attendant care services necessary.

Although he was apparently not requested to do so, the judge directed in his order that the claimant's parents should be compensated from the guardianship account for the damage done to their home. The order also directed reimbursement to the parents, again from the guardianship account, for the reasonable value of the room and board provided to the claimant by his parents.

The judge apparently also found that the claimant was in need of 24-hour per day attendant care services. Whether he actually so found, or simply meant to observe that 24-hour per day attendant care is the maximum which can be awarded under any circumstances, is not clear, because of the ambiguous language used. In any event, the judge did clearly find that the claimant's parents had been providing attendant care services since March 1, 1989, and he found that the parents should be compensated for those services at the rate of $3.35 per hour, the then-prevailing federal minimum wage. Section 440.13(2)(e)(1), Florida Statutes, was applied by the judge in reaching the compensation rate, because the mother was not employed and the nighttime care provided by the father did not require him to relinquish his daytime employment. However, the judge then directed that the attendant care benefits payable each week would be reduced by the amount of permanent total disability benefits payable each week.

We first reject the appellee's/cross-appellant's argument that there was an absence of competent...