Carbajal v. Industrial Com'n of Arizona

• Court: Arizona Court of Appeals
• Writing for the Court: Orozco
• Citation: Carbajal v. Industrial Com'n of Arizona, 190 P.3d 737, 218 Ariz. 578 (Ariz. App. 2008)
• Decision Date: 26 August 2008
• Docket Number: No. 1 CA-IC 07-0054.,1 CA-IC 07-0054.
• Parties: Sabino CARBAJAL, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Phelps Dodge, Respondent Employer, Gabb Robbins North America, Respondent Carrier.

190 P.3d 737

218 Ariz. 578

Sabino CARBAJAL, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Phelps Dodge, Respondent Employer Gabb Robbins North America, Respondent Carrier.

No. 1 CA-IC 07-0054.

Court of Appeals of Arizona, Division 1, Department E.

August 26, 2008.

Law Office of Aida Rico By Aida J. Rico, Phoenix, Attorneys for Petitioner Employee.

Laura L. McGrory, Chief Counsel, The Industrial Commission of Arizona, Phoenix, Attorneys for Respondent.

Jardine Baker Hickman & Houston PLLC By Scott H. Houston, Phoenix, Attorneys for Respondents Employer and Carrier.

OPINION

OROZCO, Judge.

¶ 1 This is a special action review of an Industrial Commission of Arizona (ICA) decision denying Sabino Carbajal's (Claimant) request seeking compensation from Gabb Robbins North America (Carrier) for care provided by Celia Carbajal (Wife) during the times in which no skilled attendant care is provided to Claimant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Claimant sustained severe injuries to his head and spinal cord in an industrial accident on November 4, 1999. As a result of the accident, Claimant has right hemiparesis,¹ as well as problems related to his cognitive ability. Claimant is able to ambulate with a wheelchair or a walker. Claimant's injury was found to be compensable and Carrier accepted his claim for benefits.

¶ 3 In addition to his monthly loss of earning capacity (LEC) entitlement, Carrier provided Claimant with a wheelchair accessible van. Carrier also made special modifications to Claimant's home, which included adding tile to the floor of the house and making the bathroom and shower area handicap accessible. The bathroom was specifically designed so that Claimant could use it independently.

¶ 4 Additionally, Carrier provides Claimant with attendant care services seven days a week for eight to ten hours each day. Monday through Friday, an attendant arrives at Claimant's home at 6:00 a.m. to bathe, dress, and perform simple physical exercises with Claimant. Wife prepares Claimant's breakfast and administers his medication. At 8 a.m. the attendant takes Claimant to the adult day care rehabilitation center. In the afternoon, Claimant is picked up from the center and dropped off at his home at 3:30 p.m.² At 6:30 p.m., another attendant arrives and assists Claimant with his needs. After performing range of motion exercises with Claimant, the attendant prepares Claimant for bed and leaves at approximately 9:30 p.m.

¶ 5 On Saturdays, an attendant arrives at Claimant's home at 7:00 a.m. and stays for a couple of hours. After the attendant has left, Wife usually takes Claimant out to visit with family or the two will go out to eat. An attendant returns at 6:30 p.m. and stays with Claimant until approximately 9:30 p.m. On Sundays, an attendant arrives at 7:00 a.m. to take Claimant to church. Claimant is returned to his home at 1:00 p.m. An attendant returns at 6:30 p.m. for Claimant's normal evening routine.

¶ 6 In addition to the services provided daily to Claimant, a registered nurse visits with Claimant on a weekly basis to set up his medications, take his blood pressure, and check his temperature. The nurse is also available to Claimant should any significant health issues arise and will accompany him to the emergency room if need be.

¶ 7 On April 26, 2006, Claimant filed a request for investigation, pursuant to Arizona Revised Statutes (A.R.S.) section 23-1061(J) (Supp.2007), alleging that Carrier had refused to compensate Wife for the attendant care she provided. Claimant sought retroactive compensation for the care rendered by Wife during those hours when no attendant care was provided. At a hearing held on September 22, 2006, Claimant argued that compensating Wife was only fair since Claimant requires attendant care 24 hours a day, seven days a week. Wife testified that on weekdays, between 3:30 p.m. when Claimant returns from the day care center and 6:30 p.m. when the second attendant arrives, she sits him in his reclining chair, administers his medication, and feeds him dinner. Occasionally, Claimant will defecate or urinate on himself at the rehabilitation center and Wife will change his clothing and clean him up when he returns home in the afternoon. Wife also testified that, after the second attendant leaves for the night, she monitors Claimant's oxygen while he is sleeping and assists him when he has to use the bathroom, which is often two to three times a night. Wife testified that, since Claimant's injury, she has had no life and likened caring for Claimant to having a child.

¶ 8 At a subsequent hearing held on November 22, 2006, Claimant's treating physician, Dr. Porter, testified that, although Claimant "cannot live alone" and must be "supervised for the most part," he does not require "skilled [care at all times] that you can get in someone who has a tracheostomy or need[s] tube feedings or things like that." For example, Dr. Porter testified that a family member familiar with his needs could help Claimant get up and use the bathroom or set up his meals during the hours in which no attendant care was provided to Claimant. This assistance, Dr. Porter explained, did not require a licensed health care provider or skilled caregiver, "just an attendant of sorts."

¶ 9 Registered Nurse Boggs (Boggs), the case manager who developed Claimant's attendant care plan with Dr. Porter, also testified at the November 22 hearing. Boggs testified that she would not change Claimant's attendant care plan. Boggs opined that Claimant was capable of doing some things for himself, but Claimant believes that the attendants should do these tasks for him since they are being paid. For instance, Boggs testified that Claimant has used the bathroom without assistance at home and at the day care center. She also testified that Claimant would not need to get up as much at night if he used a urinal placed by his bed, as he had previously done when Wife went to Mexico for a couple of weeks. Boggs testified that none of her other patients that are similarly situated to Claimant require "24-hour per day attendant care."

¶ 10 After considering all the evidence before him, the Administrative Law Judge (ALJ) found that Wife was not entitled to compensation for the care she provided Claimant and denied Claimant's request for investigation. The ALJ reasoned that "the care rendered by [Wife] is not of the type which necessitates a trained attendant, but rather is more closely akin to the day-to-day duties assumed by a spouse in accord with the marriage commitment." The ALJ summarily affirmed his award on administrative review, and Claimant brought this special action.

¶ 11 This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) (2003), 23-951(A) (1995), and Arizona Rules of Procedure for Special Actions 10.

DISCUSSION

¶ 12 Although deference is owed to the ALJ's factual findings on appeal, PFS v. Indus. Comm'n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App.1997), questions requiring the interpretation of a statute are issues of law, which we review de novo. Schwarz v. City of Glendale, 190 Ariz. 508, 510, 950 P.2d 167, 169 (App.1997). "When considering the facts of this case, we have been mindful of our duty to liberally construe the Act to effect its purpose of having industry bear its share of the burden of human injury as a cost of doing business. But, a `liberal construction is not synonymous with a generous interpretation.'" Putz v. Indus. Comm'n, 203 Ariz. 146, 150-51, ¶ 24, 51 P.3d 979, 983-84 (App.2002)(quoting Nicholson v. Indus. Comm'n, 76 Ariz. 105, 109, 259 P.2d 547, 549 (1953)).

¶ 13 Our workers' compensation statute provides that, "upon notice to the employer, every injured employee shall receive medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches and other apparatus, ... reasonably required ... during the period of disability." A.R.S. § 23-1062(A) (1995). In this case of first impression, we are asked to determine whether care provided by a spouse to an injured claimant in the marital home can be considered "other treatment" under A.R.S. § 23-1062(A). While in other circumstances we might be compelled to hold otherwise, we conclude that, under the facts of this case, the care rendered by Wife did not fall within the ambit of medical care contemplated by A.R.S. § 23-1062(A).

¶ 14 Courts were initially reluctant to embrace the idea of compensating a spouse who is not a licensed health-care practitioner for care provided to an injured claimant "on the ground that the [spouse] did no more than he or she was bound to do as an affectionate member of the family." 5 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 94.03(4)(b) (2007). Many jurisdictions have abandoned that view and permitted compensation to a spouse on the ground "that the services required were of an extraordinary nature and not those contemplated by the usual marital relationship." A.G. Crunkleton Elec. Co. v. Barkdoll, 227 Md. 364, 177 A.2d 252, 255 (1962); see, e.g., Oolite Rock Co. v. Deese, 134 So.2d 241, 243-44 (Fla.1961). Those courts have considered a number of factors in determining whether spousal care is compensable including: whether the services are those typically performed by licensed health practitioners; whether the services were performed under medical direction; and whether the claimant needs continuous care. See Warren Trucking Co. v. Chandler, 221 Va. 1108, 277 S.E.2d 488, 493 (1981); Close v. Superior Excavating Co., 166 Vt. 318, 693 A.2d 729, 731 (1997).

¶ 15 Two cases illustrate the framework under which courts employing this approach analyze the issue of spousal care. In Warren Trucking, the claimant suffered injuries to his head and neck as a result of an industrial accident. 277 S.E.2d at 489. After the accident, the claimant had a series of dizzy spells and frequently blacked out,...