MADELINE GUDMUNDSON, Employee, v. INDEPENDENT SCH. DIST. #857, SELF-INSURED, adm=d by BERKLEY RISK ADM=RS CO., Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 12, 2002
MEDICAL TREATMENT & EXPENSE - NURSING SERVICES. Substantial evidence supports the compensation judge=s determination that nursing services provided to the permanently and totally disabled employee by her daughter from December 1998 to the date of hearing, were compensable within the meaning of Minn. Stat. ' 176.135, subd. 1, and were reasonable and necessary.
Determined by Johnson, C.J., Rykken, J. and Stofferahn, J.
Compensation Judge: Joan G. Hallock
THOMAS L. JOHNSON, Judge
Independent School District #857, Self-Insured, appeals the compensation judge=s award of nursing services provided to the employee by Ms. Georgia Manthei, the employee=s daughter. We affirm.
On December 6, 1984, Madeline Gudmundson, the employee, sustained injuries to her left shoulder and both knees while employed by Independent School District #857, the employer, then self-insured, with claims administered by Berkley Risk Administrators Company. Since the work injury, the employee has undergone multiple surgeries, including a total left knee replacement in 1987; total right knee replacement surgeries in 1985 and 1993; left shoulder repair surgery in 1984 and left shoulder joint replacement surgery in 1994. The employee also suffers from a number of nonwork-related conditions, including arthritis, obstructive airways disorder, high blood pressure, deep venous thrombosis and a heart condition. The parties agree the employee is permanently and totally disabled due, in substantial part, to the work injuries. In 1991, the employee left Minnesota and moved to Petoskey, Michigan, to live near her daughter, Georgia Manthei. Since that time, Ms. Manthei has been involved in her mother=s care.
On November 12, 1998, the employee underwent a third total right knee arthroplasty, performed by Dr. Harry Robinson at Fairview University Hospital in Minnesota. Following the surgery, the employee received approximately a month of rehabilitation at Fairview Rehabilitation. She was discharged in December 1998, and returned to her home in Michigan. Ms. Manthei then resumed caring for her mother. Initially, Ms. Manthei spent approximately three days and nights each week at her mother=s home because her mother was ill from pain medication she was taking and could not be left alone. On the remaining four days, Ms. Manthei stated she was at her mother=s two to three times a day for approximately five hours or more. She testified she helped dress and undress her mother, bathed her, fed her and helped her get in and out of bed. During this period, the employee also received professional home nursing services from VitalCare. The nurse administered medications, monitored the employee=s medical condition, and provided physical therapy and wound care.
Between January 1 and January 28, 1999, Ms. Manthei testified she spent approximately five hours per day helping her mother. She stated she was at her mother=s condominium in the morning and the evening to help dress and undress her mother, help her in and out of the bathroom, and help get her leg brace and off. In addition, Ms. Mathei assisted the employee with her medications, changed dressings on her wound, bathed her, shopped for and prepared food, and cleaned and did laundry. Thereafter, Ms. Manthei testified she reduced the time she spent helping her mother to approximately 14 hours a week. Her services then included bathing her mother, driving her to medical appointments, preparing and serving meals, shopping for groceries, ordering and picking up prescription medications, and doing housekeeping chores including laundry, making the employee=s bed and cleaning her condominium.
The employee filed a Medical Request seeking compensation for the services provided to her by Ms. Manthei. The case was heard by Compensation Judge Joan G. Hallock on September 21, 2001 and February 13, 2002. In a Findings and Order served and filed March 25, 2002, the compensation judge found the services provided the employee by Ms. Manthei were compensable nursing services under Minn. Stat. ' 176.135, subd. 1. The judge further found Ms. Manthei was entitled to compensation for 24 hours of nursing services a week from December 10 through December 31, 1998; a total of 24 hours for services provided between January 1 and January 28, 1999; and 12 hours of nursing services per week from January 29, 1999 through the date of the hearing, all at the rate of $10.00 per hour. The self-insured employer appeals.
The self-insured employer first argues the compensation judge=s findings lack sufficient specificity to support an award of nursing services. The appellant asserts that, under Sorcan v. USX Corp., 58 W.C.D. 159 (W.C.C.A. 1997), a compensation judge may not merely conclude that certain services constitute nursing services under Minn. Stat. ' 176.135, subd. 1(b), but must make specific findings as to whether each claimed service was a nursing service and whether the service was reasonable and necessary. The employer contends the compensation judge failed to make the requisite findings, and seeks a reversal of the award of benefits or a remand to the compensation judge for further findings. We are not persuaded.
Minn. Stat. ' 176.135, subd. 1(a), requires an employer to furnish any necessary medical and nursing care as may be reasonably required to cure and relieve the employee from the effects of the injury. In cases of permanent total disability, the employer must also pay Athe reasonable value of nursing services provided by a member of the employee=s family.@ Id. at subd. 1(b). Thus, in permanent total disability cases, Aa broader type of general nursing care is reimbursable.@ Ross v. Northern States Power Co., 442 N.W.2d 296, 299, 42 W.C.D. 7, 13 (Minn. 1989). Minn. Stat. ' 176.135, subd. 1(b), was Ameant to expand the type of nursing care provided in cases of extreme disability . . . [T]he nursing services provided to a permanently and totally disabled person go well beyond those reimbursable in other circumstances to cure and relieve the effects of the injury.@ Id. In Sorcan, this court recognized compensable nursing care by a family member may include activities such as bathing, assisting with medication, and other personal services rendered necessary by the employee=s disability such as meal preparation, setting out clothing, driving an employee who is unable to drive, assisting in personal care, performing homemaking or maintenance chores, assisting an employee in and out of the bathroom, transferring the employee in and out of beds or chairs and doing extra laundry and housekeeping.
To establish compensability of nursing services provided by a family member in a permanent total disability case, the employee must prove (1) the services for which compensation is sought fall within the broader type of general nursing care reimbursable under subdivision 1(b); (2) the services are reasonable and necessary in the context of the employee=s needs and limitations and the time and circumstances in which the services are provided; and (3) the reasonable value of the compensation services. See Lundeen v. Horizon Fabricators, Inc., 56 W.C.D. 336 (W.C.C.A. 1997); Greenwald v. City of Robinsdale, 47 W.C.D. 155 (W.C.C.A. 1992). Whether certain care or services qualify as compensable medical expenses is primarily a fact question for the compensation judge. Meyer v. The Travel Co., 49 W.C.D. 583 (W.C.C.A. 1993).
Ms. Manthei testified her mother=s condition changed after the 1998 knee surgery. When the employee returned home, Ms. Manthei received instruction from her mother=s doctors regarding the home nursing services needed by the employee. For approximately one month, Ms. Manthei stated her mother was unable to care for herself on her own and needed help with all of her physical needs. She needed assistance getting dressed or undressed, getting into the bath tub or shower and using the bathroom, and could not drive, prepare meals or do any cleaning or housekeeping tasks. During this period, Ms. Manthei testified she spent three full days and four partial days a week helping her mother. Thereafter, Ms. Manthei stated her mother=s condition improved, but she was able to do only a few tasks on a limited basis and still required a significant amount of care to be able to live on her own.
Ms. Manthei described the specific tasks which she performed for the employee, including bathing the employee, assisting her in and out of bed and the bathroom, buying food and preparing meals, driving the employee to medical appointments, picking up and delivering prescriptions, cleaning, changing linens and doing laundry. Ms. Manthei itemized the time she spent on each task from December 1998 through the date of hearing.
Consistent with Sorcan, the compensation judge found the services provided to the employee during the period in question constituted compensable home health care as defined by Minn. Stat. ' 176.135, subd. 1, and case law. The compensation judge reduced the hours claimed by the employee between December 10, 1998 and January 28, 1999, specifically allowing only the number of hours actually accounted for by the employee. The judge also reduced the hours claimed from January 29, 1999 through the date of hearing, observing that Dr. Robinson had recommended 10 to 12 hours of care a week, all of which, the compensation judge found, could be itemized by the employee. On appeal, the Workers= Compensation Court of Appeals must affirm the factual findings of the compensation judge unless they are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). The employee did not challenge the compensation judge=s reduction of the hours claimed, and there is more than adequate support in the evidence for the nursing services found reasonable and necessary and awarded by the compensation judge. The judge=s decision must, therefore, be affirmed.
The appellant next argues the compensation judge decided the case under the legal standard set forth in Ross v. Northern States Power Co., 442 N.W.2d 296, 42 W.C.D. 7 (Minn. 1989). Since neither party specifically appealed the judge=s conclusion that Ross was the controlling law in the case, that conclusion, the appellant argues, is the law of the case and is not subject to review by this court. The appellant contends the employee failed to prove each of the four elements under the Ross test, asserting the compensation judge=s decision must, therefore, be reversed. We disagree.
The four-factor Ross test  applies to nursing services rendered under Minn. Stat. ' 176.135, subd. 1(a), on behalf of an employee who is not permanently and totally disabled. Here, there is no dispute the employee has been permanently and totally disabled since 1984. Accordingly, the Ross test is not applicable in determining the compensability of the nursing services provided by the employee=s daughter in this case. The employee=s alleged failure to prove each of the four elements under the Ross test is legally irrelevant and can provide no basis for reversal.
In explaining her decision, the compensation judge cited both Sorcan and Ross. Although, in her memorandum, the compensation judge states that she reviewed the care provided using the Ross factors, the judge did not make any findings specifically applying the four factors. This court=s review on appeal is not constrained by the apparent application of an erroneous legal analysis by the trial court. Rather, the question before this court is whether the compensation judge=s factual findings support an award of nursing services under Minn. Stat. ' 176.135, subd. 1(b). While the compensation judge=s reasoning may not have been entirely proper, the judge=s consideration of the facts in this case, as expressed in her findings and lengthy memorandum, are consistent with the applicable statute, Minn. Stat. ' 176.135, subd. 1(b), and case law. Factually, we have affirmed the compensation judge=s findings that the requested nursing services were reasonable and necessary and compensable within the meaning of subdivision 1(b). Accordingly, the compensation judge=s decision is affirmed.
 The self-insured employer appealed the compensation judge=s award of $10.00 an hour for nursing services but did not brief the issue. The issue is, therefore, waived and will not be addressed by the court. See, Minn. R. 9800.0900, subp. 1.
 The employee claimed 92 hours per week between December 10 and December 31, 1998, 35 hours per week from January 1 through January 28, 1999, and 14 hours per week after January 29, 1999 to the date of hearing.
 There continues to be some confusion regarding the applicable subpart in Minn. Stat. ' 176.135, subd. 1. Prior to 1992, and at the time Ross was decided, the sentence allowing compensation for nursing services provided by family members was included in subd. 1(a). Effective October 1, 1992, the sentence was removed from subd. 1(a) and included in a new subd. 1(b), which contains solely the provision for family nursing services in permanent total disability cases.