Mississippi Transp. Com'n v. Dewease, 93-CC-00521-SCT

• Decision Date: 10 April 1997
• Docket Number: No. 93-CC-00521-SCT,93-CC-00521-SCT
• Citation: 691 So.2d 1007
• Parties: MISSISSIPPI TRANSPORTATION COMMISSION v. Glover I. DEWEASE.
• Court: Mississippi Supreme Court

Page 1007

691 So.2d 1007

MISSISSIPPI TRANSPORTATION COMMISSION v. Glover I. DEWEASE.

No. 93-CC-00521-SCT.

Supreme Court of Mississippi.

April 10, 1997.

Michael C. Moore, Attorney General, Richard E. Wilbourn, III, Assistant Attorney General, Jackson, for appellant.

Michael H. Steele, Frank H. Shaw, Jr., Steele Shaw & Chadwick, Kosciusko, for appellee.

En Banc.

ON MOTION FOR REHEARING

McRAE, Justice, for the Court:

The original opinions in this case are withdrawn and these opinions are substituted therefor.

This appeal arises from an April 5, 1993 decision of the Neshoba County Circuit Court which affirmed an order of the Workers' Compensation Commission awarding relief to Glover Dewease, a retired Highway Commission employee injured in 1974, in the form of additional "medical benefits" and interest thereon. The Mississippi Transportation Commission (formerly the Mississippi State Highway Commission) appeals the extent of compensation awarded to the claimant's wife for caring for her husband over and above that which was agreed to by the parties in 1982, as well as reimbursement for two wheelchair vans and the purchase of a third. On cross-appeal, Dewease asserts that the Workers' Compensation Commission erred in not awarding penalties and interest. We affirm the decisions of the tribunals below except in finding that reimbursement for three vans and compensation for sixteen hours per day of home nursing care between 1974 and 1988 are not supported by the evidence in the record. Accordingly, we reverse and render the award of the three vans, and reverse and remand for further proceedings on the issue of proper compensation for nursing care provided by Mrs. Dewease.

I.

Sixty-one year old Glover Dewease, an equipment operator for the Mississippi State Highway Department, sustained a fractured leg and various other injuries to his abdominal area and lower extremities when the tractor he was attempting to start ran over him on August 20, 1974. Dewease, who suffered from arteriosclerosis, subsequently had a stroke, apparently while awaiting medical treatment, that left his right side paralyzed and seriously affected his speech. The Highway Department, a self-insured entity, paid all of his medical bills and compensated him with the maximum permanent total disability benefits provided by statute.

B.R. Taylor, who handled workers' compensation claims for the Highway Department from 1968 until 1987, and a representative from the Workers' Compensation Commission, Ed Smith, met with Mrs. Dewease in late 1982 after she called Taylor about getting some assistance in taking care of her husband. Taylor had visited the Deweases on several previous occasions over the years to make sure that Dewease had the equipment necessary for his care as well as various modifications to the house. In their meetings and conversations, Mrs. Dewease emphasized that she did not want her husband to go to a nursing home, stating, "As long as I'm alive and here he'll not go into a nursing home."

At the 1982 meeting, it was determined that rather than bringing in outside help, which Mrs. Dewease didn't want, she would be compensated for taking care of her husband. Taylor testified:

It turned out that she had decided that, if she was going to take care of Mr. Dewease in her home, that she wanted to be paid for it. So we discussed with her a good long time as to, you know, what she thought was adequate or what we thought was adequate. I believe the man that went with me was Ed Smith from the Workers' Comp Commission, and we finally decided between the three of us that we would pay her four hours a day, minimum wage, seven days a week, 365 days a year, in addition to the other things that we were doing, like building her a driveway, building a shed over the van, revamping the bathroom, putting a ramp out the front door where the wheelchair could roll up and down the ramp where she could move him.

We built the pad at the end of the porch where the van could drive up on the pad, and she could just roll Mr. Dewease from the porch into the van, and she wouldn't have to roll him outside or anything. We came back. We started paying her in December of 1982 the amount we had agreed upon.

Taylor stated that this was the first time in his experience that a claimant's spouse had requested compensation of this sort and Smith explained to Mrs. Dewease that she could be reimbursed only for actually taking care of her husband, and not for "regular household, wifely-type duties." He stated:

In the course of conversation, [Smith] told her that she was not entitled to the regular wifely duties, that she would not be entitled to that, and what he told her was, we would pay her for getting him out of bed in the morning, changing his clothes during the day, giving him a bath, and putting him back in bed at night when he got ready to go to bed, and this was the four hours we discussed with her. Everybody thought that four hours would be sufficient for those type of things. We told her we couldn't pay her for cooking his meals and things like that.

He further testified that Mrs. Dewease neither objected to the compensation as inadequate nor asked for the four-hour allotment to be increased at anytime between 1982 and 1988.

Mrs. Dewease claims that prior to his admission to the nursing home in 1988, she spent fifteen hours a day providing "nursing care" to her husband. She had to get him in and out of bed. She spent a half hour each day putting clean sheets on his bed. Changing his clothes twice a day and bathing him took about two hours a day "because I wanted, I put a lot of rubbing on him." Helping him go to the bathroom required another hour per day. Dewease was able to feed himself, but Mrs. Dewease allotted thirty minutes per meal for him to eat, as well as an hour and one half per day for meal preparation. Every day they would spend five or six hours riding around in the van, sightseeing, visiting friends and going out to eat. When they returned home each day, she would spend a half hour washing his face and rubbing his paralyzed arm with alcohol. She stated that she spent also an hour or an hour and one half every night soaking and rubbing his feet, and trying to help him stand. She spent about fifteen minutes putting him to bed every night and a minimum of thirty minutes sitting up with him during the night when he couldn't sleep. An additional forty-five minutes was spent each day giving Dewease his various medications. Once or twice a month, Mrs. Dewease also would take her husband to the doctor.

A number of evaluations about the extent of care Dewease required at the time of the hearing were entered into evidence. Dr. Robert McGuire, who evaluated Dewease at the University of Mississippi Medical Center Clinic stated in a June 5, 1991 letter to Dewease's attorneys that he required twenty-four hour a day nursing assistance. It was stipulated that the Highway Commission's expert, Dr. Earl Fyke, would testify that Dewease required only eight hours a day of nursing care. Except for the fact that the parties agreed that four hours a day of care were needed in 1982, there was no evidence presented of Dewease's pre-1988 requirements.

Dewease entered Choctaw Residential Nursing Home in 1988. Mrs. Dewease testified that she didn't think that the Highway Commission or the Workers' Compensation Commission knew of his admission. She stated that Taylor had told her that the Highway Commission wouldn't pay for a nursing home, so she paid for his expenses until her funds ran out and Medicaid took over. In his affidavit, consistent with his recollections of his meetings with Mrs. Dewease, Taylor stated that Mrs. Dewease never asked him about paying for a nursing home and he did not tell her or anyone else that nursing home costs would not be covered. The record does not indicate when Mrs. Dewease stopped receiving payment for her services, what sort of notice was provided to the Highway Commission when Dewease entered the nursing home or why Mrs. Dewease stopped submitting medical and drug bills for compensation.

II.

On January 28, 1991, the Highway Commission filed a Report of Payment and Settlement Receipt for compensable injuries suffered by Dewease in August, 1974, with the Mississippi Workers' Compensation Commission. Dewease's attorneys filed a Petition to Controvert with the Workers' Compensation Commission on February 18, 1991. The claimant sought:

1. Payment unto his wife for all nursing unpaid to her during the entire course of his disability and impairment since 7 August, 1974.

2. Reimbursement for any unpaid medicals including drugs, travel to and from doctors, rehabilitative services, transportation costs, including cost of furnishing vans and appropriate equipment pertaining thereto.

3. Rehabilitative measures not yet supplied including retraining, physical therapy, and unpaid medical care at local hospitals for persistent kidney problems and other various problems associated with the injury and the sequela [sic] therefrom.

4. Penalties, as applicable, on all of the aforelisted and hereinafter listed items.

5. Repair of, maintenance of, and upkeep of existing changes made to claimant's house by defendant so that claimant can visit his home freely.

6. Replacement wheelchair unit for wheelchair which collapsed from use.

7. Reimbursement to claimant and/or to nursing home or Social Security Administration or Veterans Administration, as applicable, for unpaid in home nursing care service required by claimant.

8. Purchase of new van for transportation of claimant to and from his home for his visits with his family as allowed by physicians.

9. Any and all other medical care, attendant care, services, appurtenances, supplies, prosthetics, drugs, and the like under Section 7 of The Act, which are shown by proof to be reasonable and necessary for the recovery and/or maintenance of claimant due to injury.

In her February 12, 1992 order, the ...