Kraft Dairy Group v. Cohen

• Citation: 645 So.2d 1072
• Decision Date: 22 November 1994
• Docket Number: No. 93-2341,93-2341
• Parties: 19 Fla. L. Weekly D2467 KRAFT DAIRY GROUP and Florida Insurance Guaranty Association, Appellants, v. Abraham COHEN, Appellee.
• Court: Florida District Court of Appeals

Page 1072

645 So.2d 1072

19 Fla. L. Weekly D2467

KRAFT DAIRY GROUP and Florida Insurance Guaranty Association, Appellants, v. Abraham COHEN, Appellee.

No. 93-2341.

District Court of Appeal of Florida First District.

Nov. 22, 1994.

Rehearing Denied Dec. 30, 1994.

Patricia Altonaga, Marlow, Connell, Valerius, Abrams, Lowe & Adler, Miami, for appellants.

Joe N. Unger and Brumer, Cohen, Logan, Kandell & Kaufman, Miami, for appellee.

SMITH, Senior Judge.

The Employer/Carrier (E/C) appeal an order of the Judge of Compensation Claims (JCC) requiring that the E/C increase the hourly rate paid to Claimant's wife for attendant care services, pay for the installation of a swimming pool at Claimant's home, and purchase a modified van for Claimant to use for transportation. We affirm the JCC's order as to the attendant care benefits. However, we reverse the award of a home swimming pool, and remand for further proceedings, and reverse the van award.

Claimant was injured in a compensable accident on March 30, 1979 and was accepted by the E/C as permanently totally disabled on May 16, 1981. On September 25, 1992, Claimant requested various benefits, including an increase in the hourly rate of attendant care services, installation of a swimming pool at his home, and a specially modified van.

Sometime after Claimant's accident, his wife, Sally Cohen, left her job as a Certified Nursing Assistant (CNA) to care for her husband. The E/C began paying her $5 per hour for sixteen hours each day to provide Claimant with attendant care services. Mrs. Cohen's former employer paid her $5.90 per hour, and in addition, paid for her to attend nursing courses at Nova University in the afternoon. Mrs. Cohen did not know the value of her educational expenses, but speculated that it was between $10,000 and $12,000 a year. The record reflects that the going rate in the community for CNAs is between $11 and $15 per hour. Mrs. Cohen now cares for Claimant, helping him with all of his daily needs. The evidence shows that Mrs. Cohen assists Claimant with dressing, bathing, feeding himself, washing, combing his hair, and putting on his shoes. She also helps him with walking, exercises, physical therapy, swimming, puzzles, and washing and waxing the car.

Both parties agree that Claimant needs hydrotherapy. For eight years Claimant received this therapy at a public pool near his home. However, Claimant stopped swimming at that pool after he was knocked down and injured several times by school children. After Claimant requested the construction of a pool at his home, the E/C authorized the use of a pool at a health spa, the Bally's Scandinavian. Mrs. Cohen testified that it was not acceptable, however, because it is 17 miles from their home and is not covered. The E/C also suggested that Claimant use the pool at Pinecrest Rehabilitation Hospital, which is seven miles from Claimant's home, but it was rejected as being too small and shallow. Thus, Claimant secured an estimate for a 16' X 32' covered, heated home pool priced at $22,346.

Claimant also requested that the E/C provide him with a van because he was having difficulty getting in and out of a car. Claimant traded in both family cars and purchased a van in 1990, but it currently has 70,000 miles on it and is not holding up well. In lieu of a new van, the E/C offered Claimant the services of five van transportation companies to take him to therapy and doctor's visits.

Hearings were held on this matter on February 26 and April 26, 1993. The JCC ordered the E/C to pay Mrs. Cohen $10 per hour, sixteen hours per day, seven days a week for nursing services; install a swimming pool at Claimant's residence in accordance with an estimate submitted by Claimant; and purchase a new van for Claimant that includes any necessary modifications. The judge based his determination that Mrs. Cohen was entitled to $10 per hour on two facts: (1) Mrs. Cohen is a Certified Nursing Assistant and therefore not covered by section 440.13(2)(h), ¹ and the going rate for CNAs is between $10 and $13.95 per hour; and (2) this represents the amount Mrs. Cohen was earning at her former employment with HRS, where she received $5 per hour plus education benefits, which had "a value probably in excess of another $5.00 per hour." The JCC's award of the installation of a swimming pool at Claimant's residence was based upon his belief that both Claimant's treating physician and the evaluating physician testified that it would be too dangerous for Claimant to use a public pool. The JCC also based his award of a new van on the testimony of both physicians, who testified that transportation in a van was medically necessary.

On appeal, the E/C argue that the increase in the rate of attendant care benefits violates section 440.13(2)(h)2, Florida Statutes. They also argue that the JCC erred in awarding Claimant a home swimming pool instead of membership in and transportation to a pool within a reasonable distance from Claimant's home. Finally, the E/C appeal the JCC's award of a modified van rather than access to the van transportation services it offered.

We will address each issue in turn. Turning first to the JCC's award of $10 per hour for attendant care services, it is clear that if Mrs. Cohen was not a Certified Nursing Assistant, section 440.13(2)(h)2 would apply to this award even though Claimant's injury took place before the statute's effective date of October 1, 1988. Mr. C's TV Rental v. David Murray, 559 So.2d 452 (Fla. 1st DCA 1990) (the 1988 amendment prescribing the value of the attendant or custodial care provided by a family member does not affect substantive rights); City of North Miami v. Towers, 557 So.2d 112 (Fla. 1st DCA 1990) (hourly value assigned to the care provided by claimant's wife should not exceed that prescribed by section 440.13(2)(e)2 (now 440.13(2)(h)2)).

Under section 440.13(2)(h)2, Mrs. Cohen would be paid the amount she received at her former employment. However, the JCC found this section inapplicable to Mrs. Cohen because she is a "professional, qualified, licensed and certified nursing assistant with a nursing background." No Florida court has addressed the question of whether Mrs. Cohen falls outside the ambit of section 440.13(2)(h)2 merely because she is a CNA. The E/C argues that the statute applies here because Mrs. Cohen is providing Claimant with nonprofessional care. According to the E/C, the issue is not whether Mrs. Cohen is a professional, but whether she has specialized training and experience in the particular services she is performing and whether the quality of care she is providing may be classified as professional. Since Mrs. Cohen's testimony indicates that she taught herself how to perform some of the services she provides for Claimant, the E/C views these services as nonprofessional.

There is some support for the E/C's argument. The statute regulates the value of "nonprofessional ... care provided by a family member." Thus, it would seem that one must look to the types of services performed rather than the qualifications of the caregiver performing them in determining whether the statute covers any particular situation. Mrs. Cohen assists Claimant with dressing, bathing, feeding himself, washing, combing his hair, and putting on his shoes. She also helps him with walking, exercises, physical therapy, swimming, puzzles, and washing and waxing the car. These types of services have been classified as services that go beyond ordinary household duties and constitute attendant care within the meaning of section 440.13(2)(a). Marlowe v. Dogs Only Grooming, 589 So.2d 990, 994 (Fla. 1st DCA 1991) ("Examples of extraordinary services that can constitute 'attendant care' are bathing, dressing, administering medication, and assisting with sanitary functions."); Rodriguez v. Howard Industries, 588 So.2d 646, 650 (Fla. 1st DCA 1991) (attendant care services have been defined as bathing, administering medication, and assisting with sanitary functions); Don Harris Plumbing Co. v. Henderson, 454 So.2d 745 (Fla. 1st DCA 1984).

However, there is competent, substantial evidence to support the JCC's finding that Claimant needs care provided by someone with a medical background. In Standard Blasting & Coating v. Hayman, 597 So.2d 392 (Fla. 1st DCA 1992), this Court reversed the JCC's order rejecting the E/C's request for reduction of the amount of hours and the hourly rate paid to the claimant's wife because the wife was "rendering trained professional attendant care of a level greater than that of an average nurses's aide." In providing her husband with attendant care, Mrs. Hayman performed some duties that would be performed by licensed practical nurses and home health aides, but she testified that she had never worked as a professional or trained nurse or home care attendant. Id. at 393. The court concluded that because Mrs. Hayman was a nonprofessional, her rate should be limited to conform to section 440.13(2)(h). Id. at 394. The facts here are different, since Mrs. Cohen was a CNA, and as such, was clearly qualified to provide professional services. ² Both Dr. Wancier, who was claimant's neurosurgeon for the past 15 years, and Dr. Lustgarten, claimant's neurologist, agreed that care by someone with a medical background and training was medically necessary; and Dr. Lustgarten testified that because of her education and training, Mrs. Cohen was the best person to provide care for the Claimant. We note that the JCC found that he could justify attendant care for twenty-four (24) hours per day in view of claimant's condition, but he limited his award to only sixteen (16) hours per day because Mrs. Cohen was willing to accept compensation for only sixteen (16) hours. Considered in the light of the record before us, it is clear that the JCC correctly found that Mrs. Cohen falls outside the ambit of section 440.13(2)(h)2, and that Hayman does not indicate a different result. Accor...