Serious workplace injuries often turn spouses into caregivers. So the question becomes, are their services compensable under workers comp? As is so often the case, it depends upon where you live.
The Supreme Court of Arizona recently decided a case in the spouse’s favor (Sabino Carbajal v.Industrial Commission of Arizona). In 1999, Sabino, working for Phelps Dodge, suffered a serious injury, resulting in cognitive problems and partial paralysis on his right side. He required full-time supervision and intermittent attendant assistance. The carrier paid for nursing aides during daylight hours. At all other times, Sabino’s wife took charge of his care: this included giving him his medication in the morning; specially preparing his food; cleaning him when he was returned from day care soiled; and moving him between his wheelchair and his bed, the toilet, or his recliner.
In their deliberations, the Arizona Supremes examined practices in two other states. They looked first at Virginia, where the courts have denied reimbursement to spouses for home health care services (Warren Trucking v. Chandler, 277 S.E.2d 488). In Warren, the claimant’s wife helped him bathe, shave, and put on braces, and she prepared his meals, drove the car, and maintained the household. When the claimant lost consciousness, his wife revived him.
The Virginia court concluded that under the statute, to qualify as compensable “medical attention,” the spouse’s care must, among other requirements, be “performed under the direction and control of a physician” and be “the type [of care] usually rendered only by trained attendants and beyond the scope of normal household duties.” The court rejected the spouse’s claim because the care rendered by the wife was not prescribed by a doctor and was not “of the type usually rendered only by trained attendants.” I suppose that when the wife revived her husband, she was just acting as a good samaritan.
NOTE: Workers in Virginia may well wonder whom the comp statute is designed to protect. We recently blogged an absurd provision of the law which precludes payment to brain injured employees who have the misfortune of surviving catastrophic injuries. Virginia seems to go out of its way to construct “rigid frameworks” that preclude compensation for the families of seriously injured workers.
Empathy in Action
Arizona justices also looked at case law in Vermont, where a similar set of circumstances led to a very different conclusion. In Close v. Superior Excavating Co. (693 A.2d 729), the claimant received a severe head injury and required 24-hour supervision. The claimant’s wife cared for him at home, including “administer[ing] and monitor[ing] his medications[,] . . . alter[ing] the doses [of medication,] . . . log[ging] . . . her husband’s behavior[, and] monitoring her husband’s seizure activity and responding appropriately.”
In concluding that the wife’s services were compensable, the Vermont court rejected the “rigid framework” of Warren, noting that “it “would . . . conflict with [its] longstanding practice of construing the workers’ compensation statute liberally.”
The Arizona court restated the aim of workers comp: rather than pushing the notion of spousal duty deep into the area of custodial care, the court “places the burden of injury and death upon industry.” The Arizona court overturned rulings at the commission and Appeals court levels. They found that Mrs. Carbajal routinely performed work that others were paid to perform and that these duties were necessitated by workplace injury. Therefore, she is entitled to reimbursement. It will be interesting to see how the comp commission comes up with a dollar value for her services: will she be reimbursed for “time on task” or is she “on call” and working whenever other paid help is not available?
When workers suffer catastrophic injuries, their families suffer loss beyond measure. The quality of life changes for everyone, not just the injured worker. If the question is “to pay or not to pay” for the onerous burdens placed on spouses, the answer, in Arizona and Vermont at least, is to pay.