Hardrives of Delray Inc. v. Stimely, 94-3768

• Decision Date: 28 February 1996
• Docket Number: No. 94-3768,94-3768
• Parties: 21 Fla. L. Weekly D531 HARDRIVES OF DELRAY INC. and Liberty Mutual Insurance Company, Appellants, v. Charlene STIMELY, as surviving spouse of Lee Stimely, and Charlene Stimely and Desiree Shore, As Attendant Care Providers for Lee Stimely, Appellees.
• Court: Florida District Court of Appeals

Page 108

670 So.2d 108

21 Fla. L. Weekly D531

HARDRIVES OF DELRAY INC. and Liberty Mutual Insurance Company, Appellants, v. Charlene STIMELY, as surviving spouse of Lee Stimely, and Charlene Stimely and Desiree Shore, As Attendant Care Providers for Lee Stimely, Appellees.

No. 94-3768.

District Court of Appeal of Florida,

First District.

Feb. 28, 1996.

Rehearing Denied April 15, 1996.

An appeal from an order of the Judge of Compensation Claims. Lisa J. Campbell, Judge.

Cheryl L. Wilke of Rigell & Leal, P.A., West Palm Beach, for Appellants.

Jerry J. Goodmark of Goodmark & Goodmark, P.A., West Palm Beach and Marjorie

Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for Appellees.

PER CURIAM.

The employer/carrier (E/C) appeal from an order of the Judge of Compensation Claims (JCC) finding that the E/C was responsible for payment of supplemental benefits from the date of maximum medical improvement (MMI), and that the wife and daughter of the claimant, who provided attendant care services, were entitled to be paid based upon the market rate for such services, rather than based upon a previously stipulated rate for services of the wife alone. We reverse the order below with respect to the ruling on payment of supplemental benefits, and reverse the ruling as to payment of the increased rate for attendant care services for the first eight hours per day provided by the claimant's wife. We affirm payment of the market rate for services provided by the daughter.

The claimant suffered injuries to his back and both knees in accidents occurring on October 11, 1984, and February 22, 1985, and compensability based upon these two accidents was accepted by the E/C. A claim was filed for temporary total disability, temporary partial disability, or wage loss benefits from February 22, 1985, to the date of the hearing on the claim, which was held on November 10, 1986. At this hearing, the parties stipulated that the claimant was at maximum medical improvement on January 24, 1986. On December 10, 1986, the JCC entered an order finding that while the claimant had restrictions as a result of his compensable injuries, he was nevertheless able to attempt some type of work. In the order, the JCC acknowledged that the claimant was severely restricted as to the types of jobs that he might be able to obtain, but the JCC nevertheless rejected the contention that the claimant was totally unemployable after the date of MMI. Accordingly, the JCC found that claimant had voluntarily limited his income since January 24, 1986.

A second hearing was held based upon a claim for attendant care benefits provided by the claimant's wife from May 2, 1987 through June 29, 1987, the date of the hearing on the claim. At this hearing, the claimant and the E/C agreed upon a rate of $9.00 per hour for attendant care "through the present and continuing," and the order of the JCC rendered on September 25, 1987, accepted that stipulation. Based upon the evidence presented, the JCC ordered that claimant's wife be compensated for eight hours of attendant care services per day at the stipulated rate of $9.00 per hour. In the September 25, 1987, order, the JCC specifically incorporated by reference the findings contained in the order of December 10, 1986.

On May 30, 1988, the E/C accepted the claimant as permanently and totally disabled, and began paying supplemental benefits on January 1, 1989. Subsequently, a claim was filed seeking additional supplemental benefits from the date of MMI, January 24, 1986, and for additional supplemental benefits resulting from the alleged underpayment of those benefits for the years 1991 until January 10, 1993, the date of the claimant's death. The claim also sought additional attendant care benefits based upon an increased need by the claimant from September 25, 1987, through the date of his death, and also sought compensation for all attendant care provided by the claimant's wife and his daughter, at the market or agency rate, rather than the previously stipulated rate of $9.00 per hour.

Following a hearing on February 17, 1994, the JCC rendered the order presently appealed in which the JCC found that the claimant was entitled to 24 hours of attendant care from May 1, 1989, to October 1, 1989 and the E/C was ordered to reimburse the claimant's wife and daughter for their attendant care during that period at the market rate. The E/C was required to reimburse the claimant's wife for 12 hours of attendant care per day for the period from October 1, 1989, until July 1, 1990, and to reimburse the claimant's daughter for three hours of attendant care per day. Subsequent to July 1, 1990, and until the claimant's death on January 10, 1993, the E/C was ordered to reimburse the claimant's wife for the statutory maximum then in effect of 12 hours per day of attendant care. The JCC ruled that all attendant care provided from May 1, 1989 until the claimant's death was required to be reimbursed at the agency rate for such services.

With...