Hunter v. Hernando County Bd. of County Com'rs, 90-2320
| Decision Date | 22 April 1991 |
| Docket Number | No. 90-2320,90-2320 |
| Court | Florida District Court of Appeals |
| Parties | Florence HUNTER, Appellant, v. HERNANDO COUNTY BOARD OF COUNTY COMMISSIONERS and Johns Eastern Co. Inc., Appellees. 578 So.2d 798, 16 Fla. L. Week. 1091 |
Michael M. O'Brien, of O'Brien and Hooper, Orlando, for appellant.
Robert B. Battista, Brooksville, for appellees.
Appellant, Florence Hunter, seeks review of an attendant care award, contending that there is no competent, substantial evidence (CSE) to support the judge of compensation claims' (JCC's) limitation of attendant care to twelve hours per day for the two-week period immediately following Hunter's release from the hospital, the restriction of attendant care to sixteen hours per week thereafter, and the circumscription of payment for such attendant care to the federal minimum wage. We affirm in part and reverse in part.
In regard to that portion of the order awarding claimant attendant care for twelve hours per day for the two-week period following her release from the hospital, both the medical and the lay testimony was consistent in saying that appellant required round-the-clock attendant care. Thus, an award of attendant care for any time less than twenty-four hours per day during the initial two-week period is not supported by CSE and must be reversed.
Turning next to that portion of the order awarding subsequent attendant care at the rate of sixteen hours per week, the evidence was conflicting regarding this issue. Both claimant and her daughter, who provided the attendant care services, testified that claimant continued to need round-the-clock attendant care. On the other hand, Dr. Homan, claimant's treating orthopedist, testified that something less than continuing care was required. Specifically, Dr. Homan stated that claimant needed assistance with housecleaning, including the heavy chores such as laundry and shopping. He did, however, opine that claimant was capable of attending to her own personal needs and cooking for herself. Although Dr. Homan discussed the possibility of a monitoring system, he did not believe that claimant's condition at that time required constant monitoring.
It is axiomatic that it is the JCC's function to resolve conflicts in the evidence, and, in doing so, he or she may accept the testimony of one witness over that of others. S & S Stove Repair, Inc. v. Dumas, 465 So.2d 644, 646 (Fla. 1st DCA 1985). It is equally true that the JCC's findings and conclusions, even in light of conflicting evidence, will be sustained if such findings and conclusions are permitted by any view of the evidence and its permissible inferences. Gomez v. Neckwear, 424 So.2d 106, 108 (Fla. 1st DCA 1982) (en banc). Here, Dr. Homan's testimony constitutes CSE to support the award, and, as such, that portion of the JCC's order directing payment of attendant care at the rate of sixteen hours per week must be affirmed.
Turning to appellant's final point--the limitation of payment for attendant care to the federal minimum wage--the JCC so ruled on the grounds that it was unnecessary for claimant's daughter to leave her job to care for her mother, and that claimant failed to provide notice to the employer/carrier (E/C) that she was receiving attendant care from her daughter. This portion of the order cannot be affirmed as to either of the reasons stated. Neither the 1988 nor the 1989 version of Section 440.13(2)(e)2, Florida Statutes, provides that a family member affording attendant care is required to leave his or her employment in order to be compensated at the same rate of pay that he or she previously earned. The statute instead provides: "If the family member is employed and elects to leave that employment," he or she shall be paid "at the per hour value of such family member's former employment." (Emphasis added.) Here, it is undisputed that claimant's daughter, a family member, voluntarily left her employment in order to care for her mother. As such, in the absence of evidence that her former wages were greater than those available...
To continue reading
Request your trial
-
Buena Vida Townhouse Ass'n v. Parciak, 91-2574
...wage award was partly upheld, but the opinion notes that the rate of pay was not at issue on appeal. In Hunter v. Hernando Co. Bd. of Co. Comm'r, 578 So.2d 798 (Fla. 1st DCA 1991), where the rate of pay was at issue, language in the opinion suggests that a family member would not be require......
-
Saddlebrook Resorts, Inc. v. Heath, 95-4427
...to show the family member is entitled to a lesser amount of compensation is then placed on the E/C. Hunter v. Hernando County Bd. of County Comm'rs, 578 So.2d 798, 800-01 (Fla. 1st DCA 1991). Admittedly, claimant satisfied her burden of proving her parents' former wages; 1 however, the JCC ......