Med. Office Mgmt. v. Hardee

• Citation: 303 Ga.App. 60,693 S.E.2d 103
• Decision Date: 23 March 2010
• Docket Number: No. A09A2381.,A09A2381.
• Parties: MEDICAL OFFICE MANAGEMENT et al.v.HARDEE.
• Court: United States Court of Appeals (Georgia)

303 Ga.App. 60
693 S.E.2d 103

MEDICAL OFFICE MANAGEMENT et al.
v.
HARDEE.

No. A09A2381.

Court of Appeals of Georgia.

March 23, 2010.

693 S.E.2d 104

Jones, Cork & Miller, Sharon H. Reeves, Macon, for appellants.

Phillip M. Eddings, Brunswick, for appellee.

693 S.E.2d 105

DOYLE, Judge.

Following our grant of their application for discretionary appeal, Medical Office Management and Southern Trust Insurance Company (collectively, the “employer”) appeal from the superior court's order affirming in part and reversing in part the award of the appellate division of the Workers' Compensation Board. The employer contends that the appellate division's award for attendant care services rendered to the employee by her husband was contrary to the law and unsupported by the evidence and that the superior court erred in finding otherwise. The employer also claims that the superior court erred in affirming the appellate division's award of fees to the employee's attorney and in substituting its finding of fact for that of the appellate division as to the amount of the award. For the reasons set forth below, we affirm the superior court's order to the extent that it affirms the appellate division's award for attendant care services and attorney fees. We reverse that portion of the superior court's order finding that the appellate division was required to believe the testimony of Hardee's attorney as to the reasonable value of his fees and directing the employer to pay the attorney $12,500.

When reviewing awards in workers' compensation cases, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division of the State Board of Workers' Compensation. It is axiomatic that the findings of the State Board of Workers' Compensation, when supported by any evidence, are conclusive and binding.¹

So viewed, the record shows that the employee, Peggy Hardee, was struck in the head with a cash box during a robbery. Afterward, she had significant memory problems which caused her, among other things, to forget to turn off electrical appliances such as the stove, and she would often become dizzy and fall. Due to Hardee's continued mishaps related to her poor memory and vertigo, two medical doctors and a clinical psychologist recommended she receive as workers' compensation benefits eight hours a day of attendant care services, stating that the services were a medical necessity. One of the medical doctors subsequently requested that in light of Hardee's recurring falls and “cognitive impairment from her brain injury,” she receive sixteen hours a day of attendant care services.

After her injury, Hardee's retired husband, Lewis Earl Hardee, provided continuing care for Hardee. Because of her vertigo and tendency to fall, Lewis would stay with Hardee “most of the time,” and he would hold on to her “ when we're walking anywhere.” Lewis would check behind Hardee regularly to make sure that “things were unplugged and turned off.” Lewis testified that he did not provide services to his wife because he expected to be paid, but because he loved his wife.

At Hardee's request, a hearing was held before an administrative law judge (“ALJ”) to determine if the employer was required to provide Hardee with the services of a professional attendant care agency, if Lewis was entitled to be reimbursed for attendant care he provided to Hardee, and if the employer was liable for attorney fees. The ALJ concluded that Lewis was not entitled to reimbursement for the care he gave Hardee, but that she was entitled to eight hours per day, seven days a week, of direct physical attendant care. The ALJ denied Hardee's request for attorney fees.

On appeal of the ALJ's ruling, the appellate division agreed with the ALJ that Hardee was entitled to eight hours per day, seven days a week of attendant care services. The appellate division found that Lewis was entitled to reimbursement for the attendant care he personally provided to Hardee and concluded that the ALJ erred in finding otherwise. The appellate division also assessed $5,000 in attorney fees against the employer. Hardee and the employer both appealed to the superior court, which (i) affirmed the award for attendant care services provided by Lewis, and (ii) affirmed the appellate division's

693 S.E.2d 106

award of attorney fees to Hardee's counsel but reversed as to the amount of that award, finding that the attorney was entitled to $12,500 in fees.

1. The employer claims that the superior court erred in finding that Lewis was not barred from recovering for the services he rendered to Hardee. Specifically, the employer contends that the award was precluded as a matter of law under Bituminous Cas. Corp. v. Wilbanks ² and its progeny. ³ We disagree.

OCGA § 34-9-200(a) provides that

[t]he employer shall furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician ... which in the judgment of the State Board of Workers' Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.

As of July 1, 1985, an injured employee “is entitled to recover, as an element of her workers' compensation benefits, the cost of such non-medical, in-home attendant care as was prescribed by her physician.” ⁴ There is no express prohibition in the Workers' Compensation Act ⁵ against the recovery by an employee of attendant care services provided by a family member, including a spouse. Nor does the employer show that a family member cannot provide attendant home care under the Board's rules and regulations.⁶ For example, as found by the appellate division, the fee schedule promulgated by the Board pursuant to OCGA § 34-9-205 contemplates reimbursement for home health services provided by family members, and this Court has previously concluded that the Board did not abuse its discretion in requiring the employer to pay for family-provided attendant care per day. ⁷

The employer argues that in light of Bituminous, Lewis was nevertheless not entitled to compensation for the services he rendered to Hardee. At issue in this 1939 decision was whether a wife's services in waiting on her injured husband while he was confined in bed at home was compensable under the then applicable workers' compensation law as “other treatment.” ⁸ In our analysis, after noting that the wife was not a trained nurse and that her services were not of an unusual type or quality, we surveyed a number of authorities before coming to the conclusion that “[t]he term, ‘other treatment’ as used in the act ... does not include the ordinary services of a wife furnished to her husband after his return from a hospital, but before he has fully recovered, as in the present case.” ⁹

Much of the reasoning underpinning Bituminous is no longer applicable. For example, Bituminous relies on the principle that in the absence of agreement otherwise, “the earnings and services of the wife belong to [the husband]” ¹⁰ and that “a husband is entitled to the services of his wife.” ¹¹ Most relevant to the actual holding in the case, the General Assembly has changed the law to require the employer to furnish to employees entitled to benefits “other treatment ... and services which are prescribed by a licensed

693 S.E.2d 107

physician ...,” ¹² and we have found the change was intended to expand benefits to include nonmedical, at-home attendant care services.¹³ Thus, Bituminous has been superceded by changes in both domestic and workers' compensation law.¹⁴

In this case, after acknowledging Bituminous and other factors relied upon by the ALJ in denying reimbursement, including that Lewis lived in the home and did not suffer financial detriment on account of providing the services, the appellate division concluded that Lewis was nevertheless entitled to payment for attendant care. The appellate division found that Lewis was providing medically prescribed attendant care services and that the services were “reasonably required and appear[ed] likely to effect a cure, give relief, or restore the employee to suitable employment.” The appellate division further found that Lewis provided the needed care after the employer refused to provide it, “despite the uncontroverted recommendations of the employee's physicians.”

In light of the...