By: Mary Frances Nelson, Partner, Fort Myers

 

Last week, the First DCA denied a challenge to the minimum wage rate for family members who provide attendant care, and upheld the current version of FS 440.13(2)(b)(1). Scott v. Sears Holding, Case No. 1D15-3787. In the underlying case, Orlando partner Nicole Florentino and associate Fred Vitale successfully argued for a reduction of attendant care benefits being paid to a family member based on the EMA physician’s testimony. Although a previous stipulation provided a specific hourly rate to a particular family member, there was a change in the provider, and therefore a reduction in the rate being paid to that provider. The medical evidence also reduced the number of daily hours available based on the specific tasks being provided. The claimant appealed the order, and appellate attorney Mark Zientz seized the opportunity to address the rate for family member attendant care.

 

The claimant argued that use of the Federal minimum wage was unconstitutional, as the Florida minimum wage rate was higher than the federal rate. The carrier argued that the Federal minimum wage rate provision does not violate any constitutional provisions in that the attendant care providers are not employees, and therefore, not subject to minimum wage requirements. The First DCA concurred with the carrier, and found that family members who provide attendant care are not employees, and found the claimant’s argument to be without merit.

 

In addition, the underlying order reduced the amount of attendant care benefits based on the EMA’s testimony. Specifically, the EMA opined that approximately 30% of the time ordered was for assistance with household chores, cleaning, and shopping. Based on the EMA testimony, the JCC found that the amount of hours should be reduced, as these activities are not considered to be within the scope of attendant care. The claimant argued that there was no competent, substantial evidence to support the ruling; however, the DCA found that there was “ample” evidence to support the JCC’s decision, and ruled the appeal to be without merit.

 

A Motion for Rehearing was filed last week with the DCA, so the decision remains pending. We will continue to provide updates on this challenge.

Mary Frances Nelson | Partner