Close v. Superior Excavating Co.

Close v. Superior Excavating Co.  (96-072); 166 Vt. 318; 693 A.2d 729

[Filed 28-Mar-1997]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 96-072


James Close                                       Supreme Court

                                                  On Appeal from
     v.                                           Commissioner, Department of
                                                  Labor & Industry

Superior Excavating Co.                           January Term, 1997


Mary S. Hooper, Commissioner

       Leighton C. Detora of Valsangiacomo, Detora & McQuesten, P.C., Barre,
  for plaintiffs-appellants

       John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland, for
  defendant-appellee/ cross-appellant


PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., Allen, C.J. (Ret.)


       JOHNSON, J.   Employer Superior Excavating appeals a decision of the
  Commissioner of the Vermont Department of Labor and Industry requiring
  payment of workers' compensation benefits for nursing services provided by
  claimant's spouse.  Claimant cross-appeals the measure of benefits awarded
  by the Commissioner.  We affirm.

       In October 1988 claimant suffered a severe head injury during an
  accident at work. Following a lengthy hospital stay, he returned home to
  live with his spouse and children at the end of March 1989.  As a result of
  his injury, claimant was subject to intermittent seizures, severe
  disorientation, and short-term and long-term memory loss.  Claimant
  required supervision twenty-four hours a day.  He was not able to take
  medication on his own, could not prepare his meals, and could not dress
  himself without assistance.  He had behavioral problems, including
  uncontrollable crying and bursts of anger.  He was also subject to
  seizures, including several grand mal seizures in the first year or two
  after his injury.  Claimant often wandered and would

 

  leave the house if not watched closely; at least once the police were
  called to help locate him. This wandering occurred at all hours of the day
  and night.

       Despite the concern of his physicians about his spouse's ability to
  provide full-time care, claimant remained at home under her care for the
  next five years.  Claimant's spouse was assigned a number of tasks by her
  husband's physicians.  She administered and monitored his medications and
  was authorized to alter the doses in certain circumstances.  For a period
  of months she kept a log of her husband's behavior for his physicians.  She
  was also charged with monitoring her husband's seizure activity and
  responding appropriately.  In February 1993, claimant's spouse agreed to
  accept some assistance in caring for her husband.  From June 1993 until
  March 1995, claimant was in an adult day-care program three days a week and
  received eight hours a month of home-care assistance.  In December 1994,
  employer's insurer began searching for a permanent residential placement
  for claimant and in March 1995 he was admitted to an assisted-living
  facility where he has since resided.

       Claimant filed a claim seeking compensation for nursing services
  provided by his spouse for the period between his discharge from the
  hospital in March 1989 and his admission to a permanent care facility in
  March 1995.  Following a hearing, the Commissioner ordered the employer to
  pay claimant the sum of $207,312.40 for nursing services, as well as costs
  and attorney's fees.  This appeal followed.

       On appeal employer argues that the care provided by claimant's spouse
  was not nursing services within the meaning of 21 V.S.A. § 640.  Employer
  also argues that even if the services are compensable under § 640, claimant
  should not be paid for services provided prior to February 1993, because
  claimant failed to request services prior to that date.  On cross-appeal,
  claimant argues the Commissioner should have ordered compensation at the
  rate of $18.00 per hour, rather than using an average of the prevailing
  minimum wage during the years in question, $4.10 per hour.

 

                                     I.

       We first address employer's claim that the Commissioner erred in
  finding that the services provided by claimant's spouse were nursing
  services compensable under 21 V.S.A. § 640.  We presume that decisions made
  within an administrative agency's area of expertise are correct, valid, and
  reasonable, absent a clear showing to the contrary.  In re New England Tel.
  & Tel. Co., 159 Vt. 459, 462, 621 A.2d 232, 235 (1993).  When, as here, the
  question on appeal is one of statutory construction, this Court defers to
  an agency's interpretation of statutes it is empowered to enforce.  See
  Burlington Elec. Dep't v. Vermont Dep't of Taxes, 154 Vt. 332, 337, 576 A.2d 450, 452 (1990).

       The Commissioner found that claimant's spouse provided nursing
  services through the administration and monitoring of medications and
  through monitoring and assistance during seizures.  The Commissioner also
  found that this care was needed on an on call basis, requiring
  twenty-four-hour attendance.  The eventual placement of the claimant at a
  full-time residential facility, paid for by the employer, confirmed this
  finding.

       The relevant statute requires an employer to "furnish reasonable
  surgical, medical and nursing services."  21 V.S.A § 640(a).  None of these
  terms is defined, nor does the statute address the issue of spousal care. 
  Vermont case law is similarly silent on the subject of compensation to a
  spouse or other household or family member who provides these services.

       A number of other states, however, have recognized spousal care as
  compensable when the services provided go beyond ordinary household duties. 
  See Edward Kraemer & Sons, Inc. v. Downey, 852 P.2d 1286, 1288 (Colo. Ct.
  App. 1992) (spouse compensated for assistance in eating, bathing, turning,
  being in attendance in case of emergency); Trejo v. Michigan Sugar Co., 350 N.W.2d 314, 316 (Mich. Ct. App. 1984) (compensable tasks performed by
  spouse included bathing, dressing, escorting); Kidd v. Winchell's Donut
  House, 465 N.W.2d 442, 448 (Neb. 1991) (spouse compensated for drawing
  insulin shots, checking sugar levels, cutting pills in half, driving and
  reading to spouse); 2A A. Larson, The Law of Workmen's Compensation

 

  § 61.13(d)(2), at 10-957 (1996) (compensation for nursing services provided
  by spouse permitted in majority of cases).  Courts interpreting statutory
  language referring to "nursing services" have included care provided by a
  spouse that is similar to the services at issue here.  See Dresser Minerals
  v. Hunt, 556 S.W.2d 138, 140 (Ark. 1977) (duties included giving
  intramuscular injections, enemas, hot baths, back rubs and twenty-four-hour
  care); Henson v. Workmen's Compensation Appeals Bd., 103 Cal. Rptr. 785,
  787-88 (Cal. Ct. App. 1972) (duties included giving medications, emptying
  urinal, assisting in moving around house, setting out tray); A.G.
  Crunkleton Elec. Co. v. Barkdoll, 177 A.2d 252, 253, 256 (Md. 1962) (spouse
  provided assistance dressing, eating, eliminating, cleaning skin graft;
  duties did not require services of registered or practical nurse);
  Annotation, Workers' Compensation:  Recovery for Home Service Provided by
  Spouse, 67 ALR 4th 765, 804-06 (1989).

       The decisions in similar cases reflect a flexible approach,
  considering such factors as: the nature of the services provided, the need
  for continuous care, the employer's knowledge of the nature of the injury
  and the medical condition of the claimant, and whether a reasonable value
  may be assigned to the services provided.  See Henson, 103 Cal. Rptr. at
  790-92; Edward Kraemer & Sons, 852 P.2d at 1288-89; Trejo, 350 N.W.2d  at
  317.(FN1)

       In this case, the Commissioner considered claimant's serious medical
  problems, his need for continuous care, and the type of care provided by
  claimant's spouse.  Claimant's spouse, his physician, and a representative
  of the employer's insurer all testified to claimant's condition and need
  for twenty-four-hour care, based on his tendency to wander and his seizure
  activity. Claimant's physician described the tasks performed by claimant's
  spouse, noting that while some

 

  of them could be performed by a licensed practical nurse, others would
  require a registered nurse.  While the physician agreed that many of the
  tasks performed by claimant's spouse in caring for her husband did not
  require skilled nursing care, he concluded that claimant required
  supervisory care all the time and skilled care some of the time, and noted
  that the times when skilled care would be required were unpredictable due
  to the nature of the head injury.  The physician concluded that if only one
  person were to be in attendance, that person should be capable of providing
  skilled nursing care.  The findings, and the ample evidence on which they
  are based, support the Commissioner's conclusion that claimant's spouse
  provided compensable nursing services.

       The employer agrees that some types of spousal services may be
  compensable, but argues that the Commissioner should have followed Warren
  Trucking Co. v. Chandler, 277 S.E.2d 488 (Va. 1981).  In Warren Trucking,
  the Virginia Supreme Court held that nursing care provided at home by a
  spouse should be paid for by an employer if the spouse provides necessary
  medical attention.  Id. at 493.  The court developed a four-part test to
  determine whether services provided by a spouse should be compensated.

     (1) the employer knows of the employee's need for medical
     attention at home as a result of the industrial accident; (2) the
     medical attention is under the direction and control of a physician,
     that is, a physician must state home nursing care is necessary as
     the result of the accident and must describe with a reasonable
     degree of particularity the nature and extent of duties to be
     performed by the spouse; (3) the care rendered by the spouse must
     be of the type usually rendered only by trained attendants and
     beyond the scope of normal household duties; and (4) there is a
     means to determine with proper certainty the reasonable value of
     the services performed by the spouse.
  
   Id.

       The Warren Trucking court concluded that the claimant was not entitled
  to compensation because there was no evidence that the claimant's doctors
  or other medical professionals instructed the spouse on any medical
  procedures or necessary medical care; rather, the court described the
  services, including bathing, shaving, feeding, assistance in walking, and

 

  administering routine medication, as falling within the scope of "normal
  household duties." Id. at 494.(FN2)  Three other jurisdictions have adopted
  the Warren Trucking test, with various modifications.  See Ross v. Northern
  States Power Co., 442 N.W.2d 296, 300 (Minn. 1989); Larson v. Squire Shops,
  Inc., 742 P.2d 1003, 1005 (Mont. 1987); St. Clair v. County of Grant, 797 P.2d 993, 1002 (N.M. Ct. App. 1990).

       In light of the deference we accord to the Commissioner's expertise,
  See Burlington Elec. Dep't, 154 Vt. at 337, 576 A.2d  at 452, we decline to
  hold that the Commissioner must apply the specific test outlined in Warren
  Trucking.  Although Warren Trucking may provide guidance, we do not believe
  that its rigid framework is necessary to decide these cases.  The
  Commissioner, aware of Warren Trucking, similarly chose to adopt a more
  flexible case-by-case approach.  As the Commissioner is in the best
  position to make these decisions, we see no reason to require the
  application of another jurisdiction's test that the Commissioner considered
  and apparently rejected.  Adopting such a test would also conflict with our
  longstanding practice of construing the Workers' Compensation statute
  liberally.  See St. Paul Fire & Marine Ins. Co. v. Surdam, 156 Vt. 585,
  590, 595 A.2d 264, 266 (1991); Packett v. Moretown Creamery Co., 91 Vt. 97,
  101, 99 A. 638, 639 (1917).

       Employer further argues that even if some of the services provided by
  claimant's spouse qualify as nursing services, she should be compensated
  only for the time she actually performed those services and not for the
  time she was "on call".  A number of jurisdictions faced with similar cases
  have recognized that a caregiver is constantly "on call", even though part
  of the caregiver's time is spent performing other household chores.  See
  Edward Kraemer & Sons, 852 P.2d  at 1289 (spouse compensated for all hours
  in attendance including times doing other household work, because spouse
  was "passively" providing attendant care); accord Standard

 

  Blasting & Coating v. Hayman, 476 So. 2d 1385, 1387 (Fla. Dist. Ct. App.
  1985), review denied, 488 So. 2d 68 (Fla. 1986); Brown v. Eller Outdoor
  Advertising Co., 314 N.W.2d 685, 688 (Mich. Ct. App. 1981); Larson, 742 P.2d  at 1008; Texas Employers Ins. Ass'n v. Choate, 644 S.W.2d 112, 116
  (Tex. Ct. App. 1982).  The decision to compensate for the entire time
  claimant's spouse was "on call" to provide nursing services to her husband
  was reasonable and well within the discretion of the Commissioner.(FN3)

                                     II.

       Next, employer argues that if the services are compensable,
  compensation should be required only for the time period after February
  1993, the date when claimant's spouse decided to accept assistance in
  caring for her husband.  The Commissioner rejected this claim, emphasizing
  that employer knew of claimant's need for twenty-four-hour care from the
  time claimant was discharged from the hospital in 1989.  In similar cases,
  courts have found constructive notice based on the severity of the injury,
  the prognosis, the medical status of the employee, and the employer's
  knowledge that the services were being provided.  See Henson, 103 Cal. Rptr.  at 792; Larson, 742 P.2d  at 1008.  Noting that the amount of
  compensation ordered was approximately $2,000 a year less than employer
  would have had to pay for placement at a residential facility, the
  Commissioner found the amount reasonable and fair. Moreover, the evidence
  and the findings suggest that claimant's spouse provided adequate and
  appropriate care.  In short, employer can demonstrate no prejudice from the
  claimed lack of notice.  As employer had knowledge of the extent of the
  injury and the amount awarded was no

 

  more and probably somewhat less than the employer would have been required
  to pay if claimant had been placed in full-time care during this period,
  the Commissioner's decision to award benefits from the date of claimant's
  discharge is fair and reasonable, and we will not disturb it.

       We understand employer's desire to have prior notice of a claim for
  benefits, so that it can manage the claim in the most cost-effective way
  possible.  After-the-fact claims must be subject to greater scrutiny, since
  the employer may have lost the ability to manage the claim. Our decision
  thus should not be read as a blank check, requiring payment of benefits
  even when an employer had no knowledge of the need for care and no
  opportunity to determine the type and cost of care provided.

                                    III.

       Claimant argues that the Commissioner's decision to order compensation
  at the rate of $4.10 per hour was unreasonable and urges adoption of
  compensation at a rate of $18.00 per hour, based on the testimony of
  claimant's physician that many of the services provided by claimant's
  spouse were consistent with work done by registered nurses or physician
  assistants. The evidence, however, supports the Commissioner's use of the
  minimum wage.  Although some of the work was of a skilled nature, for much
  of the time claimant's spouse provided what another court has referred to
  as passive attendance.  Edward Kraemer & Sons, 852 P.2d  at 1289.  Using the
  prevailing minimum wage resulted in a total amount of compensation close to
  what the employer would have paid for twenty-four-hour care at the
  residential facility where claimant now lives.  Moreover, at oral argument,
  counsel for claimant conceded that the Commissioner's decision was fair
  under the circumstances.  We therefore uphold the Commissioner's
  calculation of the compensation.

       Affirmed.

                              FOR THE COURT:


                              _______________________________________
                              Associate Justice


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                                  Footnotes



FN1.  In addition, courts recognize that a significant other,
  household or family member may provide services, as well as a spouse.  See
  McMahon v. Huntington, 246 So. 2d 743, 744 (Fla. 1971) (sister); Florida
  Medical Ctr. v. Renzi, 464 So. 2d 231, 232 (Fla. Dist. Ct. App. 1985)
  (parents); Interchange Village v. Clark, 363 S.E.2d 350, 352 (Ga. Ct. App.
  1987) (daughter); Burd v. Industrial Comm'n, 566 N.E.2d 35, 37, 41 (Ill.
  App. Ct. 1991) (fiancee); Houston Gen. Ins. Co. v. Hamilton, 634 S.W.2d 18,
  21 (Tex. Ct. App. 1982) (mother and grandfather).

FN2.  The applicable statute required the employer to provide "such
  other necessary medical attention . . . as the nature of the injury may
  require."  Warren Trucking, 277 S.E.2d  at 492 (quoting Va. Code Ann. §
  65.1-88 (repealed 1991)).

FN3.   The employer argues that the Commissioner failed to state the
  law upon which she relied because she did not specify how she distinguished
  between compensable nursing services and other noncompensable services. See
  21 V.S.A. § 664 (Commissioner shall make award setting forth findings of
  fact and law applicable thereto).  As employer admits, however, the purpose
  of a requirement like that in § 664 is to give all parties and any
  appellate court a clear statement of what was decided and how the decision
  was reached.  Cf. Louis Anthony Corp. v. Department of Liquor Control, 139
  Vt. 570, 573, 432 A.2d 1186, 1188 (1981) (discussing 3 V.S.A. § 812).  The
  Commissioner's ruling meets that standard.