Close v. Superior Excavating Co.

• Decision Date: 28 March 1997
• Docket Number: No. 96-072,96-072
• Citation: 166 Vt. 318,693 A.2d 729
• Parties: James CLOSE v. SUPERIOR EXCAVATING CO.
• Court: Vermont Supreme Court

Page 729

693 A.2d 729

166 Vt. 318

James CLOSE v. SUPERIOR EXCAVATING CO.

No. 96-072.

Supreme Court of Vermont.

March 28, 1997.

Leighton C. Detora of Valsangiacomo, Detora & McQuesten, P.C., Barre, for plaintiff-appellee/cross-appellant.

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

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

JOHNSON, Justice.

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., 133 Mich.App. 753, 350 N.W.2d 314, 316 (1984) (compensable tasks performed by spouse included bathing, dressing, escorting); Kidd v. Winchell's Donut House, 237 Neb. 176, 465 N.W.2d 442, 448 (1991) (spouse compensated for drawing insulin shots, checking sugar levels, cutting pills in half, driving and reading to spouse); 2 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, 262 Ark. 280, 556 S.W.2d 138, 140 (1977) (duties included giving intramuscular injections, enemas, hot baths, back rubs and twenty-four-hour care); Henson v. Workmen's Compensation Appeals Bd., 27 Cal.App.3d 452, 103 Cal.Rptr. 785, 787-88 (1972) (duties included giving medications, emptying urinal, assisting in moving around house, setting out tray); A.G. Crunkleton Elec. Co. v. Barkdoll, 227 Md. 364, 177 A.2d 252, 253, 256 (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 A.L.R.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. ¹

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, 221 Va. 1108, 277 S.E.2d 488 (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. 277 S.E.2d 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 performed 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,...