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The Sticky Wicket That Is Home Health Care: Why It’s a Hotly Contested Issue in the Workers’ Compensation Arena

March 19, 2012 (10 min read)
An injured employee’s entitlement to home health care is oftentimes a hotly contested issue in the workers’ compensation arena. Home health care issues can vary in nature. For instance, at what point does the marital obligation cease and the paid nursing services begin? Another issue in these cases may involve the level of skill involved; the number of hours in a 24-hour period assistance is needed, not to mention the appropriate hourly rate at which the services should be paid. As an example of the potential dollars involved in these cases, if a spouse is providing services for 24 hours per day, at an LVN skill level, assuming an hourly rate of $25 per hour, and assuming a life expectancy of 35 years, the future value of these services amounts to over $7.6 million. After doing the math, it is easy to see why a great deal of litigation surrounds these particular issues. Find out how four states have recently dealt with some of these issues.
NEBRASKA:
THE LAW: In Nebraska, there are three basic requirements to be satisfied before compensation will be allowed for the care given an injured employee by a spouse in their home: (1) The employer must have knowledge of the employee's disability and need of assistance as a result of a work-related accident; (2) the care given by the spouse must be extraordinary and beyond normal household duties; and, finally (3) there must be a means of determining the reasonable value of the services rendered by the spouse.
CASE EXAMPLE: Traffansetdt v. Seal-Rite Insulation, 2011 NE Wrk. Comp. LEXIS 1284 (Aug. 19, 2011).
The Injury: The plaintiff was employed by the defendant employer as an insulation installer, when he suffered multiple injuries, including a traumatic brain injury and the sequelae thereof, facial/sinus fractures, dental injuries, depression, cervical and lumbar and myofascial pain syndrome, as a result of an accident arising out of and in the course of his employment when he fell through a ceiling approximately 15 feet and struck a concrete floor.
Types of Services: The plaintiff’s spouse initially spent 3 hours a day performing tasks for her husband. While he was physically able to walk, dress or help dress himself and perform some non-cooking household tasks, he cognitively had difficulty with memory, concentration, anger outbursts and visual perception skills. He could not manage his prescriptions or drive an automobile. It became necessary for his spouse to attend all of his medical appointments. The plaintiff’s physical and cognitive condition worsened after gall baldder surgery. He underwent a neuropsychological evaluation, where it was found by a physician that he did not have adequate capacity to modulate his impulses and emotions, and did not have adequate insight to recognize how impaired he truly is. The physician opined that the plaintiff will require around the clock supervision, as he posed a significant threat to those who try to restrict his activities. The Workers’ Compensation Court found that from February 10, 2008, through August 23, 2010, when plaintiff and his wife separated, his spouse provided necessary supervision and extraordinary assistive services to her husband of up to 16 hours per day.
Reasonable Value of Services: To determine the spouse’s reasonable value of services, plaintiff obtained cost information from a RN/certified life care planner for the years 2001 through 2007 and from a RN/clinical director for a home health care and hospice provider in the Dallas, Texas area. Both professionals agreed the care level provided by the claimant’s wife in this case was very similar to a certified nurse assistant (CNA) or home health aide (HHA), although she is not licensed. Defense counsel established during the deposition of Brent Taylor, the RN/clinical director in Dallas, Texas that although his agency billed for CNA services at $19 to $24 per hour, the employee earned $9.50 per hour, the balance attributed to administrative, benefit and tax costs. The information provided for the years 2001 through 2007 indicated an employee would earn $9.50 per hour weekdays and $10.50 per hour weekends. The Nebraska Workers’ Compensation Court found it fair and reasonable that claimant’s wife be compensated at the rate established for a HHA.
IOWA:
THE LAW: Defendants have a clear duty under Iowa Code section 85.27 to provide nursing services to injured workers. The statute contemplates payment for the type of services which would normally require medical training and licensure. (In Quaker Oats v. Ciha, 552 N.W.2d 143 (Iowa 1996), the spouse was not a nurse or a licensed practical nurse. However, she did receive special training to perform the services she rendered for her spouse.) Whether the medical services provided by a family member are reasonable and necessary is a factual determination based on the medical testimony and the testimony of the person providing the services.
CASE EXAMPLE: Ward v. Fansteel, Wellman Dynamics, 2008 IA Wrk. Comp. LEXIS 588 (Nov. 13, 2008)
The Injury: On the date of injury, claimant experienced pain in his back after reaching to clean a casting with certain equipment. Claimant was taken to the company authorized physician and was released to go home. But the next day, when he attempted to return to work, he lost feeling in both of his legs and below his navel. His paraplegia persisted despite undergoing a laminectomy.
Type of Services: The spouse had to learn how to care for her husband's wounds. He had MRSA and it was crucial for his spouse to dress his wounds properly and to employ sterile methods. The spouse also learned to use the "wound vac." Additionally, she had to learn how to extract *** from claimant's intestines. While the spouse was not a skilled nurse, she did have to undergo proper training to care for her husband.
Reasonable Value of Services: The claimant supplied evidence of the rates that Iowa Home Health Care would charge for a home health care client. The rates charged by the service were $55.00 per hour for a registered nurse and $90.00 per visit for a skilled nursing visit. The judge considered the $90.00 per day figure requested by the claimant was too high, given the hourly wages that are paid in Region 14 of the State of Iowa for registered nurses. Region 14 includes Clarke County where claimant and his spouse reside. The judge took administrative notice of the most recent and official Labor Market Information that was produced for Iowa Workforce Development by the Labor Market and Workforce Information Division. According to the most recent statistics, experienced registered nurses in 2006 (most recent year) in Region 14 earned $22.55 per hour. The judge found that the $22.55 per hour scale or $45.10 per day figure was a reasonable amount to compensate claimant for his spouse’s services given that she did not have any certificates or degrees in nursing. Therefore, defendants were liable to claimant for 1035 days at $45.10 per day. This calculation totals $46,678.50 due to claimant from defendants.
ARKANSAS:
THE LAW: The claimant sustained a compensable injury on April 20, 1979. As such, the claim is governed by Ark. Stat. Ann. 81-1311 (Repl. 1976), which provides that “The employer shall promptly provide for an injured employee such medical, surgical, hospital, and nursing services, and medicine, crutches, artificial limbs and other apparatus as may be reasonably necessary for the treatment of the injury received by the employee...” The respondents are liable only for those medical services which are reasonably necessary. What constitutes reasonably necessary medical treatment under this section is a question of fact for the Commission.  The Workers' Compensation Act, as applicable to the instant claim is highly remedial and is entitled to a liberal construction. The Act should be accorded a broad construction and doubtful cases should be resolved in favor of compensation.
CASE EXAMPLE: Keys v. Arkansas Highway & Transportation Department, 2006 AR Wrk. Comp. LEXIS 26 (Jan. 24, 2006).
The Injury: The claimant suffered a compensable injury on April 20, 1979, whereby he was permanently and totally disabled and left a paraplegic. On April 10, 2003, he had a double amputation, resulting in a heart attack on April 13, 2003. On April 23, 2003, he had a triple bypass.
Types of Services: The claimant’s wife testified that she performed the following services for her husband four to eight hours a day: (1) Helped him get dressed; (2) Helped him take a bath; (3) Helped him use a commode chair; (4) Cleaned up the effects of his diarrhea; (5) Change his catheter and empty the urine bags; (6) Picked up medical supplies; (7) Get up in the middle of night to help claimant with his cramps and pain by massaging him, turning him over, etc.
Reasonable Value of Services: The claimant testified that he arranged a deal with the insurance company to pay his wife $630 a week in lieu of paying a trained nurse $1,260 a week. The insurance company paid this amount of several months. However, the insurance company lowered this amount to $231 a week ($11 an hour, 21 hours weekly), beginning November 29, 2003. The trial judge found that the preponderance of evidence provided that the nursing services of three hours per day paid at the rate of $11 per hour was reasonable and necessary for care associated with the claimant's injury. A majority of the Commission affirmed. One Commissioner dissented and said the claimant should receive the $630 a week given all the duties that his spouse performed and that since the reduction in payment by the insurance company, she had to seek employment elsewhere and had to pay her relatives to help take care of her husband while she is at work.
CALIFORNIA
THE LAW: Calif. Labor Code section 3207 defines "compensation" as "compensation under this division and includes every benefit or payment conferred by this division upon an injured employee . . . ." "This division", which refers to Division Four of the Labor Code, includes Calif. Labor Code section 4600, which requires employers to provide medical treatment "that is reasonably required to cure or relieve the injured from the effects of his or her injury." Home healthcare services provided by applicant's spouse are allowed "if medically necessary and reasonable” [State Farm Insurance Co. v. Workers' Comp. Appeals Bd. (2011) 192 Cal.App.4th 51 [76 Cal.Comp.Cases 69].
CASE EXAMPLE: Mota v. Allgreen Landscape, 2012 Cal. Wrk. Comp. P.D. LEXIS 34.
The Injury: The applicant was a landscaper who sustained an industrial injury to his head, neck, jaw, low back, right leg, right shoulder, left wrist, sense of smell, chest, psyche, gastrointestinal, pulmonary, eyes, hearing, gums, liver, nasal fracture, face, urinary, and impotency. He received a stipulated Award of 89% permanent disability and need for further medical treatment.
Types of Services: Applicant’s wife was taught how to bathe him, take him for a walk and what to do when he was going to leave the hospital. She fed him orally. She was taught how to give him his medications. She puts a catheter on him every night before he goes to bed. She was taught to administer the catheter at a doctor's office about 4 years ago. She has taken care of him since he got out of the hospital day and night.
Reasonable Value of Services: The reasonable rate to be paid to the wife was at the median LVN rate for Orange County as set forth by the trial testimony. The WCAB Commissioners found that based on the Agreed Medical Evaluator (AME) indicating applicant required an LVN level of care approximating 16-18 hours a day, the panel concluded that substantial evidence supported the need for LVN services 16 to 18 hours per day.
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