Sisk v. Philpot

• Decision Date: 12 February 1968
• Docket Number: No. 5--4448,5--4448
• Citation: 244 Ark. 79,423 S.W.2d 871
• Parties: G. W. SISK, d/b/a Sisk Stave Mill and Hartford Insurance Company, Appellants, v. Bill R. PHILPOT, Guardian of the Estate of Herman Warden Davis, Appellee and Cross-Appellant.
• Court: Arkansas Supreme Court

Page 871

423 S.W.2d 871

244 Ark. 79

G. W. SISK, d/b/a Sisk Stave Mill and Hartford Insurance Company, Appellants, v. Bill R. PHILPOT, Guardian of the Estate of Herman Warden Davis, Appellee and Cross-Appellant.

No. 5--4448.

Supreme Court of Arkansas.

Feb. 12, 1968.

Shaver, Tackett & Jones, Texarkana, for appellants.

Shaw & Shaw, Mena, for appellee.

JONES, Justice.

This is a workmen's compensation case presenting an unusual question under the provision of Ark.Stat.Ann. § 81--1311 (Repl.1960) which provides in part as follows:

'The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during the period of six (6) months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require.'

The precise question presented in this case is whether or not the employer (or compensation insurance carrier) can be required to provide nursing service by the injured employee's mother and father. The question is not whether nursing service should be provided. The question is where and by whom the service should be rendered.

On November 24, 1965, while in the course of his employment, Herman Davis, a young man 28 years of age, sustained an accidental injury to his left hand when it was struck with a chopping axe. While under anesthetic during the medical repair of the wound to the hand, his heart stopped functioning for a period of some twenty-two minutes, resulting in severe and irreversible brain damage. As a result of the brain damage, Herman is mentally incompetent and physically helpless. He lives with his mother and father where he requires constant attention twenty-four hours each day.

The employer and compensation insurance carrier recognized and accepted the claim as compensable. They furnished the required medical, surgical, hospital and nursing service, including medicine, crutches, etc. during the period of six months after the injury and for some time thereafter. They recognize that Herman Davis is permanently and totally disabled as a result of his injury, and they are paying the weekly amounts due Herman for this disability. They recognize and are willing to accept their responsibility for extended medical benefits, including nursing service beyond six months, but they do not recognize their obligation to pay Herman's parents for rendering this service in their home.

Bill R. Philpot is the legally appointed and acting guardian of the estate of Herman Davis, and Johnnie Davis, the father of Herman, is guardian of his person. The compensation carrier paid Johnnie Davis $100.00 per week for a period of three months for nursing Herman, but these payments were suspended and Mr. Philpot filed claim, apparently on behalf of Herman and his father, for reinstatement of payments for nursing expenses and claimed $500.00 per month as a reasonable amount to be paid to Herman's father and personal guardian for the nursing care being rendered to Herman. Mr. Philpot is designated claimant and the employer and compensation insurance carrier are designated 'respondents' in the record of proceedings before the Commission.

A hearing was had before the referee in Mena at which time the claimant was represented by counsel, and the respondent was not represented an did not participate. The referee awarded $500.00 per month for the care of Herman Davis and ordered this amount, from the date of last payment, to be paid in one lump sum and such payments to continue on a monthly basis. The referee awarded the maximum attorney fee to claimant's attorney.

On review by the full Commission, respondents did appear and offered evidence as to the availability of hospital and rest home facilities in the area of Mena, and respondents argued that a rest home for Herman would be some less expensive and much more efficient in caring for him. Following the hearing before the full Commission on review, the Commission made the following award:

'Beginning the day after the last day for which Johnnie Davis was paid by respondents for the care of Herman Warden Davis, respondents shall resume payments to Johnnie Davis at the rate of $500.00 per month with such payments to continue subject to the provisions and limitations of the Act, and the further directions of this Commission. All sums accrued to date shall be paid in one lump sum. Respondents shall, of course, continue the payment of weekly compensation benefits at $34.91, to Mr. Bill R. Philpot, as guardian of the estate of Herman Warden Davis, with such payments to continue subject to the provisions and limitations of the Act.

'Respondents shall, also, provide Herman Warden Davis with the necessary and reasonable medical attention required as the result of his admitted compensable injury on November 24, 1965.

'Respondents shall, also, pay to claimant's attorney, Mr. Robert Shaw of Mena, an attorney's fee in the sum of $600.00, which is in addition to the other benefits awarded in this case.'

This award of the Commission was affirmed on appeal to the circuit court and on appeal to this court, respondents rely on the following point for reversal:

'The Court erred in allowing the employee's father the sum of $500.00 per month as compensation for his care of the employee.'

The claimant has cross appealed relying upon the following points:

'The Court properly allowed the employee's father the sum of $500 per month as compensation for his services in caring for the injured employee.

'The Court erred in failing to...