Florida Refreshment and General Adjustment Bureau v. Whaley

• Decision Date: 08 April 1991
• Docket Number: 89-3052,Nos. 89-2994,s. 89-2994
• Citation: 577 So.2d 1368,16 Fla. L. Weekly 1007
• Parties: 16 Fla. L. Weekly 1007 FLORIDA REFRESHMENT AND GENERAL ADJUSTMENT BUREAU, Appellants/Cross-Appellees, v. Joseph WHALEY, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1368

577 So.2d 1368

16 Fla. L. Weekly 1007

FLORIDA REFRESHMENT AND GENERAL ADJUSTMENT BUREAU, Appellants/Cross-Appellees, v. Joseph WHALEY, Appellee/Cross-Appellant.

Nos. 89-2994, 89-3052.

District Court of Appeal of Florida First District.

April 8, 1991.

Jesse F. Sparks of Sparks, Cooper & Leklem, P.A., Orlando, for appellants/cross-appellees.

Douglas H. Glicken, P.A., Orlando, for appellee/cross-appellant.

SMITH, Judge.

The employer/carrier appeal, and claimant cross-appeals orders awarding bad faith attorney's fees and attendant care benefits in a worker's compensation proceeding. We affirm in part and reverse in part.

On April 27, 1987, the 53-year-old claimant, working on building maintenance, was climbing to the roof of a building to check on a leak when he fell approximately twenty feet, hitting a concrete floor. He suffered serious injuries, including a fractured right hip and left shoulder blade, and head injuries resulting in brain damage. The claimant's accident resulted in chronic encephalopathy, a degenerative disease of the brain. His physical and mental injuries have rendered him permanently and totally disabled. Following his release from the hospital, where he underwent hip surgery, the claimant has remained at home under the care of his wife, who provides for his daily personal needs, and also administers his medications and physical therapy.

On appeal, the E/C challenge both the twenty-four hour daily attendant care by the claimant's wife, as well as the award of the hourly rate of $5.00 per hour. Preliminarily, we find the award of twenty-four hours daily care by the wife abundantly supported by the evidence of record, as partially recited in the JCC's order.

As to the $5.00 hourly rate, the E/C urge that since the wife is unemployed, the hourly rate is limited to the federal minimum wage under section 440.13(2)(e)(1), Florida Statutes (1988). We disagree. The JCC based the award of $5.00 per hour upon a stipulation between the parties dated June 27, 1988, in which the hourly rate was fixed at $5.00 per hour for care by claimant's wife, and upon the order dated September 9, 1988, in which the JCC approved the stipulation. In the order under appeal, the JCC found that since the parties had previously stipulated to the $5.00 hourly rate, with no evidence presented to the contrary, the applicable rate would be $5.00 in accordance with the prior order. The JCC noted additionally that the hourly rate was never raised as an issue during the proceeding before him.

As to the extent of the award, the E/C contend that it was error to award twenty-four hour daily care for seven days a week in that this court has "consistently limited" attendant care by a claimant's spouse to sixteen hours per day. The E/C cite for authority this court's decisions in Prestressed Decking Corp. v. Medrano, 556 So.2d 406 (Fla. 1st DCA 1989); Aino's Custom Slipcovers v. DeLucia, 533 So.2d 862 (Fla. 1st DCA 1988); Amador v. Parts Depot, Inc., 508 So.2d 1320 (Fla. 1st DCA 1987); and Dalton v. Orange County Sheriff, 503 So.2d 406 (Fla. 1st DCA 1987). The E/C's argument overlooks this court's decision in City of North Miami v. Towers, 557 So.2d 112 (Fla. 1st DCA 1990), in which the court specifically discussed each of the cases cited by the E/C, and concluded that prior decisions of this court "do not in a proper case foreclose an award of twenty-four hours of daily care." The court then reversed an award of sixteen hours daily care, and ordered an award of twenty-four hours of daily care by the claimant's wife. See also, Firestone Tire & Rubber v. Knowles, 561 So.2d 1293 (Fla. 1st DCA 1990).

Even if the twenty-four hour attendant care award was justified under the evidence, however, the E/C contend that the JCC's order was in error insofar as it extended twenty-four hour daily care beyond October 1, 1989, the effective date of section 440.13(2)(e)(2), Florida Statutes (1989). That statute, effective October 1, 1989, limited the award of attendant care to the spouse of a claimant to twelve hours daily. The claimant concedes it was error to award twenty-four hours daily care after October 1, 1989. The claimant does not concede, however, that the award must be limited to the statutory twelve hours daily under the circumstances of this case. Instead, the claimant argues that the award should be reduced only to sixteen hours daily because of the prior stipulation of the parties, approved by order of September 9, 1988, providing for sixteen hours daily attendant care.

We agree with claimant's contention as to the effect of the 1988 statute under the facts of this case. The order appealed in this case was in effect a modification of the September 9, 1988 order which approved a stipulation calling for sixteen hours daily care. The order modified the prior award, however, only to the extent that the prior order limited attendant care to sixteen hours a day. The claimant had earlier filed a claim seeking twenty-four hours daily care. Giving operative effect to the statute, therefore, does not require reduction to twelve hours of care per day. The statute did not revoke prior awards based on stipulations valid when made and approved by the JCC, providing for payment in excess of the twelve hour statutory limitation. See Howard Johnsons v. Pineda, 560 So.2d 336 (Fla. 1st DCA 1990).

We have not overlooked the E/C's contention that it would be inconsistent to rely upon the parties' prior stipulation in order to uphold the $5.00 hourly rate, but to disregard the stipulation insofar as it limited attendant care to sixteen hours daily. As we have noted, the JCC expressly relied upon the stipulation, and the order approving it, dated September 9, 1988, in fixing the $5.00 hourly attendant care rate. However, we find no inconsistency. We observe, first, that the E/C have not shown that this argument...