City of North Miami v. Towers

• Citation: 557 So.2d 112
• Decision Date: 08 February 1990
• Docket Number: No. 89-1820,89-1820
• Parties: 15 Fla. L. Weekly D377 CITY OF NORTH MIAMI, Appellant, v. Arthur TOWERS, Appellee.
• Court: Florida District Court of Appeals

Page 112

557 So.2d 112

15 Fla. L. Weekly D377

CITY OF NORTH MIAMI, Appellant, v. Arthur TOWERS, Appellee.

No. 89-1820.

District Court of Appeal of Florida,

First District.

Feb. 8, 1990.

Rehearing Denied March 12, 1990.

Robert L. Teitler, of Walton, Lantaff, Schroeder & Carson, Miami, for appellant.

David H. Levine and Roberto Rigal, Jr., of Levine, Busch, Schnepper & Stein, P.A., Miami, for appellee.

ERVIN, Judge.

The employer/carrier ("E/C") appeals an order of the judge of compensation claims ("JCC") awarding, among other things, attendant care benefits to claimant's wife for eight hours per day between July 23, 1987 and February 1, 1988, and for sixteen hours per day from February 14, 1988 to date, at a rate of $8.00 per hour. Claimant cross appeals, contending that the JCC should have reimbursed claimant's wife for attendant care services for twelve and twenty-four hours of care during the respective time periods.

We reverse the award for attendant care benefits insofar as it relates to the amount ordered to be paid to claimant's wife, and remand for further proceedings on that issue. Additionally, we reverse the order as it pertains to claimant's cross appeal, in that we find a lack of evidence in the record supporting an award of eight and sixteen hours of daily attendant care. We affirm without discussion the remaining issues which the E/C has raised.

Claimant incurred a work-related injury to his back on April 7, 1983, while employed by the City of North Miami. Claimant underwent surgery for a lumbar laminectomy in February 1984, and additional surgery for spinal fusion and insertion of a Harrington rod in February 1988. Shortly thereafter, claimant required additional surgical procedures for reinsertion of the Harrington rod. Following this third surgery, claimant developed incontinence and decreased mobility.

Because of claimant's injury, he may walk only by holding onto the back of his wheelchair, and his wife must constantly be by his side either to prevent him from falling or at the least to break his fall. He also needs help in changing positions, both day and night, because of discomfort, in getting dressed and undressed, and in moving within and outside his home. His wife gives him his medication, including sleeping pills during the night if claimant cannot sleep. She will also sit up with him at night if he cannot sleep. Claimant's wife prepares his meals and is available to help him almost all of the time. After claimant became incontinent, his need for his wife's care increased dramatically. She testified that she now spends approximately twice as much time caring for her husband, and that such care includes helping claimant change his clothes and/or bed linens when he soils himself, and then helping him clean up in the shower. This occurs three to four times per day, and between one and four times per night. She washes his linens daily.

The record thus shows, and the JCC specifically found, that claimant requires attendant care to perform nearly all of the normal chores of daily living. We surmise that the JCC nevertheless limited reimbursement to the wife for only eight and sixteen hours of daily care, rather than for twelve and twenty-four hours, based upon case law in which this court has affirmed awards for less than twenty-four hours of daily care, notwithstanding that the record has reflected that round-the-clock care was provided. Indeed, this court recently reversed an award for twenty-four hours of daily attendant care, despite proof that the claimant required that amount, and remanded for entry of an award for sixteen hours of care, citing case law that had previously issued from this court. Prestressed Decking Corp. v. Medrano, 556 So.2d 406, 407 (Fla. 1st DCA 1989) (motion for rehearing pending). It is nonetheless our view that the decisions this court relied upon in Medrano for its restriction of benefits to a time period less than twenty-four hours do not in a proper case foreclose an award for twenty-four hours of daily care.

For example, in Amador v. Parts Depot, Inc., 508 So.2d 1320 (Fla. 1st DCA 1987), the claimant was brain damaged and required constant supervision during the day, as well as frequent supervision during the night. Because of the extensive care claimant required from his wife, this court reversed the deputy commissioner's award of five hours per day of attendant care services and remanded, stating in the opinion that claimant's wife provided a minimum of twelve hours of daily care. The court observed that the JCC might want to include an additional four-hour period, representing the time his wife remained available while claimant napped. The court acknowledged that claimant's wife was essentially "on call" during the night as well, but did not similarly recommend that...