Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

In what the court described as a "battle. . . between common sense and . . . procedural limitations," the Fourth DCA affirmed the trial court's grant of the claimant's petition for rule nisi in City of Hollywood v. Benoit, decided on 1/21/2009.

 

The problem in the case stems from the fact that the judges of compensation claims - the executive branch officials who are charged with adjudicating disputes in Florida workers' compensation cases - have no real authority to enforce the orders that they render.  So if one party refuses to comply with a workers' compensation order, the aggrieved party must go to the circuit court - the court of general jurisdiction - to obtain a "rule nisi" which compels the recalcitrant party to comply with the order.

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JCC Castiello in Miami has ruled once again that notwithstanding the express language of §440.13(2)(b)1, Fla. Stat., non-professional attendant care should be compensated using the Florida minimum wage, not the federal minimum wage.  See Devito v. The Martin Bower Co., decided on September 18.  Judge Castiello previously reached the same conclusion in Tapia v. Prestressed Systems, Inc.

 

By the way, the Florida minimum wage is scheduled to increase to $7.21 per hour on January 1, 2009. 

 

Tip of the hat to Randy Porcher for alerting me to this order.  Randy tells me that although an appeal was taken from the order, the case subsequently settled, so there'll be no First DCA review of this issue yet.

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Over the weekend, the St. Pete Times ran this heartrending story about James Dolan, a 34-year-old Radio Shack employee who was shot in the head by a gun-wielding assailant while on the job in 2004.  The attack not only left him totally blind, but suffering from post-traumatic stress syndrome as well.  His story was featured on the ABC television show Extreme Makeover Home Edition in 2005 after show's crew made his home handicapped-accessible.  You can see a clip from the show here.

 

But the story doesn't have a happy ending.  Mr. Dolan's wife had to quit her job in order to provide care for him.  The effect of that lost family income was compounded by the fact that the Dolans' property taxes and utility bills have increased because of the repairs to the home.

 

The Dolans requested Radio Shack's workers' compensation carrier, Liberty Mutual, to provide 12 hours per day in attendant care benefits to compensate Mrs. Dolan for the care that she has had to provide to her husband, but the carrier refused.  Instead, they hired vocational rehabilitation consultants who said not only that Mr. Dolan did not require any attendant care, but that he could actually return to work.  The JCC did award the requested benefits in this 2/13/2008 order, but Liberty Mutual appealed.  Fortunately for the Dolans, Liberty's attorney didn't file the notice of appeal within 30 days of the JCC's order, and the First DCA therefore dismissed the appeal. 

 

Exasperated with Liberty Mutual's handling of the claim, the Dolans have now sued them for intentional infliction of emotional distress.  Such causes of action against workers' compensation carriers were authorized by the Florida Supreme Court in Aguilera v. Inservices, Inc.  More on this deplorable situation later.

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The federal minimum wage is set to increase to from $5.85 per hour to $6.55 per hour on July 24.  That means the compensation for non-professional attendant care rendered  by family members and necessitated by an on-the-job accident in Florida will also increase because that compensation is pegged to the federal minimum wage.  See §440.13(2)(b)1, Fla. Stat.

 

As I wrote here, two judges of compensation claims have held that this statute has been superseded by the enactment of Florida's own minimum wage law.  The state minimum wage is currently set at $6.79 per hour (effective 1/1/2008) with another increase scheduled to go into effect on 1/1/2009.

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Another judge of compensation claims has weighed in on whether non-professional attendant care must be compensated at the federal minimum wage (currently $5.85/hr.) or at the Florida minimum wage (currently $6.79/hr., effective 1/1/2008).  As I wrote here, JCC Castiello and JCC Medina-Shore have concluded that the Florida minimum wage applies to such care notwithstanding the express requirement in §440.13(2)(b)1 that such care be compensated at "the federal minimum hourly wage" (emphasis added).  See Tapia v. Prestressed Systems and Valdes v. Galco Construction.

 

JCC Lewis in Ft. Lauderdale disagrees.  In Gilstrap v. Broward Correctional Institute, decided on 4/24/2008, he concludes that because the care-giver is not an employee of the employer/carrier, the "clear and unambiguous language of the statute" controls and that the care must be recompensed at the federal minimum wage. [Note:  the federal minimum wage is set to increase to $6.55/hr. on 7/24/2008 and to $7.25/hr. on 7/24/2009.  Florida's minimum wage increases each year on January 1, as determined by the Agency for Workforce Innovation].

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The federal minimum wage increases today from $5.15 per hour to $5.85 per hour.  That means that compensation for non-professional attendant care also increases because it is tied to the federal minimum wage by s.440.13(2)(b)1, Fla. Stat.  Or, as I wrote about here, if you believe that s.440.13(2)(b)1 has been superseded by the 2005 amendment to the Florida Constitution (Article X, s.24) which mandates a higher minimum wage in Florida, then the compensation rate for non-professional attendant care currently stands at $6.67 per hour.

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Does the new minimum wage amendment to the Florida Constitution supersede the statutory requirement of the Florida Workers' Compensation Act that non-professional attendant care be compensated at the federal minimum wage rate?  Yes, say at least two judges of compensation claims.  

 

Section 440.13(2)(b)1, Fla. Stat. (2006), clearly says that non-professional attendant care provided by an injured worker's family members shall be compensated at the federal minimum wage rate, assuming that the family member is either (1) unemployed or (2) providing the attendant care during his non-working hours.   Currently, the federal minimum wage stands at $5.15 per hour.

 

Effective 5/2/2005, however, the citizens of Florida adopted an amendment to the state constitution, Article X, Section 24, which requires the minimum wage for all Florida employees to be $6.15 per hour.  The question, then, is whether family members providing non-professional attendant care are to be paid at the Florida or federal minimum wage.   

 

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