Travelers Ins. Co. v. Obusek
| Decision Date | 29 December 1995 |
| Docket Number | No. 94-3666,94-3666 |
| Parties | TRAVELERS INSURANCE COMPANY, Appellant, v. Lisa Ann OBUSEK. |
| Court | U.S. Court of Appeals — Third Circuit |
A. Richard Feldman (Argued), Jennifer L. Hoagland, Bazelon & Less, Philadelphia, PA, Cheryl Esposito, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA, for Appellant.
Edward G. Shoemaker (Argued), Pittsburgh, PA, for Appellee.
Before: STAPLETON, McKEE, Circuit Judges, and SEITZ, Senior Circuit Judge.
We are asked to decide if attendant care services are an "allowable expense" under Section 103 of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa.Con.Stats.Ann. Sec. 1009.103 (repealed) ("No-Fault Act") when provided by accredited, non-family, medical care providers. 1 We must also decide if, under the circumstances of this case, this question is ripe for adjudication.
For the reasons that follow, we answer both inquiries in the affirmative. While we thus agree with the district court's disposition of the two primary issues before it, we also conclude that the district court's judgment fails to clearly adjudicate the issues that the parties are entitled to have resolved. We will therefore reverse the district courts judgment and will remand for further findings of fact and the entry of an unambiguous judgment.
On October 19, 1979, at the age of 18, Lisa Ann Obusek suffered a severe spinal cord injury while riding as a passenger in an uninsured motor vehicle. 2 Lisa's spinal cord was severed at approximately the C5-C6 level causing her irreversible neurological injury. She was initially treated at Mercy Hospital and later transferred to St. Francis General Hospital in Pittsburgh, Pennsylvania, where she underwent a rehabilitation program. She was eventually discharged from St. Francis, and has been living at home with her parents ever since.
Lisa can move her head and neck but has no use of her legs and only limited movement of her arms. She has no grip in her hands but is able to feed herself when equipped with a cuff and splint. She has no control over her bowels or bladder and urinates through a catheter. Her disabilities are potentially life-threatening if not properly managed. Lisa's speech and intellectual capacities were not affected by the accident.
In a medical report dated September 21, 1989, James McCague, M.D., set forth the extent of Lisa's physical limitations, and noted that those limitations impaired her respiratory functions thereby making her susceptible to choking. The report concluded that this, along with her susceptibility to life threatening infection from bed sores, meant that she needed frequent monitoring and inspection.
In July of 1988, Erie Independence House, ("EIH") 3 performed a Health Care Evaluation of Lisa to determine what products, services and accommodations she needed to achieve maximum feasible physical, psychological, social and vocational rehabilitation. The resulting Report was based upon a five day evaluation at EIH, a review of Lisa's medical records, and an on-site evaluation of her home. The EIH Evaluation made specific recommendations as to those things EIH felt essential for Lisa's rehabilitation and care, including functional equipment, housing modification and adaptations, psychological counseling, physical therapy and attendant care services. The services and accommodations EIH recommended included a regimen of specific exercises and hygiene. It also recommended that "Miss Obusek should ... receive Attendant Care for all activities of daily living." EIH Evaluation at 7. EIH defined attendant care services as including, but not limited to, "bowel routines; bladder routines; bathing; dressing; weight shifts; transfers; hygiene care; range of motion; house cleaning; exercise routines; leisure time activities; and wheelchair maintenance, etc." Id. EIH recommended that the attendant care services be provided on a twenty-four hour a day basis. Id. EIH also recommended that Lisa:
1. [r]eceive 68.67 hours weekly ... of direct personal care assistance, with the understanding that more hours may be necessary if she should become ill.
2. [r]eceive 21.64 hours of ancillary assistance weekly, to maintain her living environment.
3. [h]ave an attendant available to her for the remaining 77.69 hours weekly, after personal care and ancillary services are completed. These hours are necessary to avoid problems, and give assistance throughout the week should problems, based on her physical disability occur.
EIH defines an attendant or personal assistant as a person "who facilitates physical or social independency (sic) by doing chores required by the disabled person." Id. at Attachment # 10, p. 100, quoting GEORGE NELSON WRIGHT, PH.D., TOTAL REHABILITATION at 74 (1st Ed.1980). An attendant Id. at 101, quoting TOTAL REHABILITATION at 746-747. 4
Staff members of EIH testified that the daily attendant care of quadriplegics can be, and usually is, provided by unskilled lay persons. The only requirements for the job are a high school diploma, a driver's license and having attained the age of 18. In 1989, EIH paid attendant care providers at the rate of $5.00 per hour.
Gilbert Brenes, M.D., Director of the Spinal Cord Injury Program at Harmarville Rehabilitation Center in Pittsburgh, and the rehabilitation expert hired by Travelers, examined Lisa and concluded that she did not require the services of a registered or licensed practical nurse to provide the attendant care she needs. He did, however, conclude that Lisa needed 16 hours a day of attendant care. Additionally, he recommended that a licensed practical nurse "be available to change the Foley catheter, to supervise the attendant care so that is done effectively or at any time that [Lisa] runs into respiratory, skin, autonomic or GU complications." Joint Appendix at 473a.
Lisa's mother, Anna Rose Obusek, is a high school graduate who worked as a part-time bookkeeper before Lisa's accident. She is not a registered nurse or a licensed practical nurse and she does not have a license or certification in either medical or rehabilitative care. However, hospital staff advised Mrs. Obusek on Lisa's care in the months immediately following Lisa's accident, and Mrs. Obusek has provided the attendant care and services Lisa has needed to survive since then. This care includes preparation of meals; setting-up of eating utensils; cleaning-up after meals, assisting with drinking and taking medication; transferring Lisa between bed and wheelchair; dressing and undressing; assisting with Lisa's personal hygiene and grooming; changing, emptying and cleaning the urine bags; bowel stimulation; range-of-motion exercises; changing and sterilizing the Foley catheter; cleaning the bedroom; assisting in the use of exercise equipment; turning Lisa in bed at night; doing laundry; and providing maintenance of wheelchairs.
Neither Lisa, nor the driver of the car she was riding in had automobile insurance at the time of the accident. Therefore, Lisa filed an application for no-fault benefits with Pennsylvania's Assigned Claims Plan. The Assigned Claims Plan is an entity created pursuant to section 108 of the No-Fault Act, 40 Pa.S. Sec. 1009.108, (repealed), to provide basic no-fault loss benefits to victims of motor vehicle accidents who have no other source of basic loss benefit coverage. The Plan initially assigned Lisa's claim to Allstate Insurance Company for evaluation and processing. Lisa requested coverage for all "products, services and accommodations" required for her "maximum feasible restoration/rehabilitation" pursuant to the No-Fault Act, including modifications to her parents' home, a modified van to allow for transportation, and 24 hour a day attendant care services.
Allstate initially denied Lisa's claim for basic loss benefits, and she responded by suing Allstate in the Court of Common Pleas of Allegheny County. Obusek v. Allstate Insurance Company, No. G.D. 79-27948 (C.P.Alleg.Cty.1979). That matter was not litigated, however, because a settlement was reached whereby Allstate agreed to pay a variety of benefits, including the cost of building an addition to the Obusek home. Allstate also agreed to pay $40.20 per day for the 24 hour attendant care services provided by Mrs. Obusek and other family members. Those payments were to continue for 18 months and the parties were then to be free to negotiate further payments.
When the 18 month period expired in August of 1982, Allstate agreed to continue paying at an increased per diem rate of $45.79. The original agreement was extended in all other respects for an additional two years, until August 25, 1984. At the conclusion of that two year period, a third agreement was negotiated wherein the per diem was increased to $125, or $45,625 per year, for a period of four years--until August 25, 1988. The third agreement also provided that upon its expiration, the parties would each:
have the right to request an increase or decrease in these payments.... should the parties be unable to reach such an agreement, each party will have the right to seek to resolve this issue through appropriate litigation pursuant to the Pennsylvania No-Fault Act.
Allstate also agreed to continue to pay the $125 per day, augmented annually by the increase in the consumer price index in the event of litigation.
In January of 1987, the Plan assigned Lisa's claim to Travelers, and Travelers began making the attendant care services payments. As of August, 1988, the insurance companies had paid more than $239,800 to the Obuseks for the services provided...
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