First District Court of Appeal overturns attendant care award due to lack of specificity in judge’s findings.

The First District Court of Appeal overturned an award for nonprofessional attendant care because the judge of compensation claims failed to distinguish which services qualified for compensation under Florida law.

The claimant’s husband provided her with nonprofessional attendant care. The judge awarded him payment for 30 hours per week at the federal minimum wage. The judge made this award based on a generalized finding that what the husband did for the claimant—including carrying her upstairs for her to bathe—qualified as attendant care services under Florida law. However, the employer/carrier argued that some services provided by the husband and included in the 30-hours-per-week award did not meet the statutory definition for nonprofessional attendant care. The District Court held that the judge did not engage in a detailed analysis of the husband’s activities in order to separate out those services that qualified for compensation from those that did not qualify.

Florida Statutes section 440.13(2)(b)1 states that employer/carriers must provide appropriate professional or nonprofessional attendant care performed at the direction and control of an authorized physician. The statute further specifies that “attendant care” includes only “care rendered by trained professional attendants which is beyond the scope of household duties. Family members may provide nonprofessional attendant care but may not be compensated under this chapter for care that falls within the scope of household duties and other services normally and gratuitously provided by family members.” § 440.13(1)(b), FLA. STAT. (2024).

The claimant and her husband testified that following the industrial accident, their household duties changed significantly. Much of what the husband did following the accident is what the claimant did previously. Before the accident, the claimant took care of their children, cooked and cleaned. Following the accident, the husband assumed responsibility for the chores including cooking, vacuuming, mopping, doing laundry and taking care of the children. The court noted, however, that the claimant still drove and occasionally took their children to the grocery store. The claimant herself admitted that much of the attendant care she needed was akin to maid service. The husband did carry the claimant upstairs and helped her to bathe, and he did transport her to medical visits. The court noted that such activities may be compensable as nonprofessional attendant care. The judge, however, failed to make any findings or otherwise take steps to ensure that the husband was to be paid only for services that were not “within the scope of household duties and other services normally and gratuitously provided by family members.” For that reason, the District Court vacated the award for the husband’s nonprofessional attendant care. 

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