Barkett Computer Service v. Santana

• Decision Date: 22 October 1990
• Docket Number: No. 89-2843,89-2843
• Parties: 15 Fla. L. Weekly D2630 BARKETT COMPUTER SERVICE and Liberty Mutual Insurance, Appellants, v. Isabel SANTANA, Appellee.
• Court: Florida District Court of Appeals

Page 520

568 So.2d 520

15 Fla. L. Weekly D2630

BARKETT COMPUTER SERVICE and Liberty Mutual Insurance, Appellants, v. Isabel SANTANA, Appellee.

No. 89-2843.

District Court of Appeal of Florida,

First District.

Oct. 22, 1990.

Sheryl S. Natelson and Wendy Ellen Marfino, Miller, Kagan & Chait, P.A., Deerfield Beach, for appellants.

Jerold Feuer, Miami, for appellee.

BARFIELD, Judge.

The employer and carrier (EC) appeal a workers' compensation order which awards attendant care benefits in the nature of $200 per week for a maid employed by the injured claimant and $210 per week for claimant's husband. We reverse.

The claimant is a 53-year-old woman who injured her back in a 1986 accident accepted as compensable. Claimant underwent surgery in 1987, and the EC voluntarily accepted her as permanently, totally disabled. Claimant then sought, inter alia, attendant care benefits for the household chores performed by a maid for five months, and now performed by her husband. Claimant testified that prior to her accident she was responsible for all the household chores. After she underwent surgery for her injury a nurse was provided by the EC for four months. Thereafter claimant's husband helped her, and for five months a maid was hired to perform all the household chores: cleaning, cooking, washing clothes, "Everything," except giving claimant a bath. Claimant acknowledged that her husband is able to do the work, "He can do it, but it's not the same thing as a woman." Since the maid left in January 1989, claimant's husband has been doing all the work: "Making the beds, cooking, cleaning laundry, full household chores." Prior to claimant's accident her husband did not do any of this work although he cut the grass occasionally. Prior to the accident, if claimant had to work late, her husband sometimes helped with the cooking and cleaning the floors. He did the vacuuming once or twice, but claimant stated she didn't like the way he vacuumed.

Claimant's husband testified that prior to her accident claimant was primarily responsible for maintaining their home, although he helped her out with things in the house, and took care of the yard. Claimant made the beds, did the laundry, cooked, cleaned, vacuumed, and did the shopping. During her employment the maid did almost all the household chores and cooking, and he occasionally helped her with some things. After the maid left, he did all the chores himself. He acknowledged no change in his life-style as a result of his new duties, although he has had to give up fishing.

Claimant's treating physician testified that following claimant's surgery he ordered a home health nurse for only four or five months because claimant should then be able to begin to do more things on her own, although she would need an undetermined amount of help with her housekeeping. She is capable of taking her own medication, bathing, dressing and feeding herself. Based on this evidence the Judge of Compensation Claims awarded attendant care benefits. This was in error.

Attendant care benefits for family members who are performing ordinary household chores has only been found to be proper when the extent of the attendant care being furnished by the family members is inseparably intertwined with household duties which they would be performing regardless. In such situations, the family members are usually performing sitter/custodial or on-call attendant care which requires them to be in constant attendance on the claimant but which does not preclude their contemporaneous performance of usual household duties. See, e.g.,...