Warren Trucking Co., Inc. v. Chandler

• Decision Date: 24 April 1981
• Docket Number: No. 801064,801064
• Court: Virginia Supreme Court
• Parties: WARREN TRUCKING COMPANY, INC., et al. v. Charlie E. CHANDLER Record

Page 488

277 S.E.2d 488

221 Va. 1108

WARREN TRUCKING COMPANY, INC., et al. v. Charlie E. CHANDLER

Record No. 801064.

Supreme Court of Virginia.

April 24, 1981.

William O. Tune, Jr., Roanoke (James C. Joyce, Jr., Gentry, Locke, Rakes & Moore, Roanoke, on brief), for appellants.

Stephen G. Bass, Danville (Carter, Craig & Bass, Danville, on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

COMPTON, Justice.

In this workmen's compensation appeal, we review the correctness of an award in favor of a disabled claimant requiring the employer and insurer to pay for care rendered the claimant at home by his wife.

Appellee Charlie E. Chandler, a resident of Danville and employed as a driver by appellant Warren Trucking Company, Inc., was hurt on January 5, 1978, while unloading cargo. He was struck by a heavy piece of furniture and suffered injuries to his head and neck. The employer and its insurance carrier, appellant Liberty Mutual Insurance Company, treated Chandler's claim as compensable and, as authorized by Code § 65.1-93, entered into a memorandum of agreement providing for payment of compensation for general disability at the rate of $175 per week. In a March 1978 award, the Industrial Commission approved the agreement and directed payment of the foregoing amount. The order of the Commission also provided: "Medical benefits are awarded for as long as necessary."

Approximately 19 months later, claimant's attorney notified the Commission in October of 1979 that the parties had been unable to reach an agreement concerning Chandler's claim against the insurer for "home attendant care." Following a February 1980 hearing on that issue, a deputy commissioner denied plaintiff's request for "home sitting expenses." Upon review, the full Commission unanimously decided the claim should be allowed. From the June 1980 award, we granted the employer and insurer this appeal.

The relevant facts are undisputed. The 43-year-old claimant's injury was first diagnosed as a cerebral concussion. He experienced "a painful neck and back secondary to (the) injury" and, after an initial, brief period of hospitalization, Chandler was confined at home. The claimant has been examined and undergone multiple tests and studies by numerous physicians in the Danville area and in hospitals in North Carolina because of residual dizziness, vertigo and headaches. The condition has been diagnosed as "post-traumatic labyrinthitis." Although during the months following the accident the physicians reported few objective findings to support Chandler's subjective complaints, he has stayed at home and not resumed any type of employment.

On July 5, 1979, Dr. Milton Greenberg, a Danville otorhinolaryngologist, wrote the following, addressed "To Whom It May Concern:"

This patient has been followed by us since February of 1978 following a head injury. He has had a post-traumatic labyrinthitis. He has been unable to drive during this time, and has had a great deal of difficulty, necessitating his wife staying at home to look after him. She has been unable to work because of his condition.

The claimant sent Dr. Greenberg's note to the insurer. The insurer's representative then wrote the physician:

Mr. Chandler has sent us a copy of your report of July 5, 1979 concerning his wife looking after him.

In order for us to reach a decision on our responsibilities for home care, if any, it will be necessary for you to outline the specific problem that Mr. Chandler needs his wife at home with him all of the time.

Has his need for in home attendant care increased since Feb. of 1978? Is it medically proper for him to be left alone for any length of time? If so, what length of time?

Dr. Greenberg responded on July 16, 1979 to the insurer's inquiry in the following manner:

I have been seeing this patient at intervals since 13 February 1978. As you know, he was hit in the head by a 300-pound piece of furniture and suffered a concussion. Since that time, I have been treating him for a post-traumatic labyrinthitis. This has incapacitated him so that he is unable to return to work. He cannot drive and frequently falls. He and his wife both tell me that it is necessary for her to stay at home because of his unsteadiness and the fact that he falls and cannot do anything for himself. He is unable to operate any mechanical equipment.

Following the claimant's application for a hearing, Dr. David G. Dye, a Danville orthopedist, wrote "To Whom It May Concern" in November of 1979 as follows:

For financial reasons Mrs. Chandler must seek employment and will be unable to take care of her husband. Mr. Chandler presently needs moderate nursing care which his wife is providing. When she becomes employed in another capacity, Mr. Chandler will need someone to look after him during the day. The main reason for care is the frequent 'blackout spells' or syncopal episodes which this patient has along with many episodes of vertigo.

It is also my understanding that the patient has a very low anxiety threshold and has difficulty performing daily activities. For this reason, I think it would be adviseable (sic ) that Mr. Chandler have help during the daytime when his wife would be away from home.

Subsequently, and just prior to the February 1980 hearing, the claimant's physicians all wrote on January 9 separate reports as follows: Dr. Greenberg, "From an ear, nose, & throat viewpoint, I can't justify continuous home attendant care"; Dr. Robert A. Kuhn, a Danville neurologist and neurosurgeon, "From a neurological point of view this pt. does not need any home attendance"; Dr. Charles A. Whitten, Jr., another Danville neurosurgeon, "As of last exam (when released) I found no physical reason that should require home care"; and Dr. Dye, "From an orthopaedic standpoint alone Mr. Chandler does not need 24 hour continuous attendent (sic ) care."

During the hearing, the claimant's wife testified she had cared for her husband at home since the accident, thus preventing her from obtaining outside employment. She had worked for Dan River Mills for 23 years prior to 1976 when she began riding with her husband during the performance of his duties with the employer. Pursuant to an agreement with the trucking company, the wife accompanied the claimant, without compensation, "(e)very time he went out" from 1976 to the time of the accident.

Describing the claimant's needs that required her presence at home, the wife testified:

Well, since the accident and everything that occurred to him and with the vertigo that he does have the dizzy spells and blacking out, he needs someone in the home to help him with it. He needs someone to help him bathe, shave, I have to help him with putting on the braces. He wears two braces and this nitro thing that he wears; and he also has a hospital bed. I have to prepare his meals. I have to take him to the doctor. He cannot drive. They won't let him drive. I have to do all of the driving. I have to maintain my household after I take care of him.

She further stated:

For a period of seconds minutes, he blacks out, he falls, he stumbles and to revive him, I have to, you know, get him out straight, maybe on the floor, elevate his feet to where, you know, the blood can go to his head or break a (sic ) ammonia bomb under the nose to revive him like that. And, then, like, if he's staggering, I can hold to him in order to sort of help support him and I help him to the table if he's not able to come to the table and eat. I take his meals to the bedside to him. Sometimes, I help feed him and then again, you take like times that he's not able to get up, there is his medicine to give him. I take his water to the bed; I give him his prescription medicine.

At the hearing, the claimant testified:

Dr. Dye said that I needed moderate nursing care if I'm going to be left at home alone. And, my wife needs to go to work because of the house payment and our debts to square them right, keep them straight.

During the hearing, while discussing the issue to be decided, claimant's attorney said no request was being made for any direct payment to the wife. Instead, counsel urged, "We're asking for home attendant care to be provided as an additional medical expense to allow her to leave the home." Consistent with that position, the claimant presented evidence that the Community Sitters Agency of Danville would provide a "sitter" for $25 per 10-hour day. According to the evidence, the sitter would "assist" claimant in walking, bathing, shaving and reaching the bathroom. In addition, the sitter would prepare claimant's meals, assist in feeding him, if necessary, wash the dishes and administer medication.

In denying claimant's request, the deputy commissioner said the issue to be decided was whether the insurer should be held responsible "for what amounts to babysitting type services for the adult employee." Noting that the wife was not gainfully employed at the time of the industrial accident, the hearing commissioner stated the "thrust" of the claim is that the wife "desires to leave the home to obtain full time employment to augment the family income." Observing that the suggested nursing care had not actually been prescribed by a physician, the deputy stated that "more importantly" the wife was losing nothing by staying home with her husband because she was not employed when he was hurt. The deputy commissioner concluded, "The desire to augment the family income is not adequate basis for these defendants to be held responsible for the sitter expenses which are requested."

Upon review, the Commission said the claim was for payment for practical nursing care, "as distinguished from usual household work," rendered at home by the wife, "who was formerly employed outside the home but has not been employed since her husband's incapacity." The Commission found from the record and medical reports, especially Dr. Greenberg's July 5...