Luna v. Van Erkel Farms

LUCAS LUNA, Employee, v. VAN ERKEL FARMS, and RAM MUTUAL INS. CO., Employer-Insurer/Appellants.

MEDICAL TREATMENT AND EXPENSE - NURSING SERVICES. Substantial evidence, including records from the employee=s treating doctor, supported the compensation judge=s award of nursing services for the permanently totally disabled employee.

Attorneys: Howard Held and Wendy E. Metchnek, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Appellants. Gerald S. Weinrich, Attorney at Law, Rochester, MN, for the Respondent.

The employer and insurer appeal from the compensation judge=s award of payment to Intrepid Health Services for certain services rendered and from the judge=s award of reimbursement to the employee=s spouse for expenses paid to Intrepid. We affirm.

The employee, an insulin dependent diabetic, sustained an admitted work-related injury on May 21, 1991, while employed by Van Erkel Farms [the employer]. As a result of that injury, the employee sustained a traumatic brain injury, blindness of the right eye, bilateral ankle fractures with post-traumatic arthritis, moderate left hemiparisis, urge incontinence, and L2-L5 transverse process fractures. The employee has significant problems with ambulation. He wears a leg brace and uses a walker or wheelchair to get around, and, when walking, he has difficulty maintaining his balance. In October of 1995, Dr. Jeffrey Basford, of the Mayo Clinic, rated the employee as having a 24% whole body impairment for loss of vision, a 95% whole body impairment for the traumatic brain injury, a 30% whole body impairment for motor dysfunction, movement disorder, paralysis, and memory loss, and a 10% whole body impairment for bilateral ankle fractures with persistent pain and post traumatic arthritis.

For about six years after his work injury, the employee spent most of his time in the hospital, nursing homes, or rehabilitation centers. Two attempts were made to return the employee to his home during that period. Both failed due to a combination of the employee=s cognitive, behavioral, and physical limitations. In April of 1997, Dr. Basford again began discussing returning the employee home in that the nursing home the employee was living in had given the family 30 days notice to move the employee. The employee=s QRC, Donna Boysen, coordinated efforts to return the employee home. On May 8, 1997, she wrote to Dr. Basford, summarizing a conversation she had had with the doctor on May 7, 1997. That letter outlined the fact that the employee would need assistance with an in-home physical therapy program, that the employee=s family might need some respite care, and that returning home was not contraindicated if skilled nursing, home health care, and a physical therapy program were in place.

The employee and his wife bought a new home and the employer and insurer apparently paid for modifications to make the home accessible. In November of 1997, the QRC contacted a home health care agency to provide the services of a home health aide and registered nurse. A target date of December 1, 1997, was set for the employee=s return home.

On December 1, 1997, the QRC attended the home visit from the home health care agency. The care plan at that time included two hours of care in the morning and two hours of care in the evening, with the goals listed as:

9. Each evening assist with walking exercises and other physical therapy exercises, as prescribed.

11. The RN visit would take place two times each day to assist with insulin injections and teach the family how to do the injections.

Prior to the employee=s release from the nursing home, in July of 1996, the parties had entered into a stipulation of permanent total disability, wherein all parties stipulated that the employee had been permanently totally disabled since May 21, 1991. It was agreed that the employer and insurer would pay permanent total disability benefits and pay or reimburse the costs of medical treatment arising out of the work injury, subject to the defenses of reasonableness, causation, and the fee schedule guidelines. The employer and insurer apparently paid the home health care bills in full until approximately April 24, 2000, at which time they began paying less than the full billing. On September 16, 2003, the employee filed a medical request, seeking payment of the outstanding balance with Intrepid Health Services and reimbursement to the employee=s spouse for payments she had made to Intrepid. In a response to the medical request, filed on September 22, 2003, the employer and insurer responded that they would not pay for work Athat was not nursing services.@

The medical request proceeded to hearing on January 14, 2004, and, in Findings and Order filed on March 23, 2004, the compensation judge found, in part, that a weekly visit of one hour from a skilled nurse was reasonable and necessary to cure, relieve, and monitor the effects of the employee=s work-related injury, that it was reasonable that the employee=s spouse have a partial respite day once per week and for the home health aide to prepare the employee=s meal on that day, that occasional outings were medically important for the employee=s socialization and psychological well-being, that periodic cleaning of the employee=s bathroom and changing of his linens was necessary because of incontinence resulting from his work injury, that the assistance of a home health aide was reasonable and necessary for 3 hours per day, 7 days per week as a result of the employee=s work-related injury and disability, and that an additional hour of assistance per week was reasonable and necessary to provide respite for the employee=s spouse. The employer and insurer appeal.

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

The employer and insurer contend that the employee did not prove that the services in question qualified as medical expenses or that the claimed services were reasonable or necessary. At oral argument, counsel for the employer and insurer explained that the specific services at issue were the setting up of insulin for the employee, shaving the employee, cleaning and putting on the employee=s glasses and hearing aids, brushing the employee=s teeth, caring for the employee=s hair, cleaning the home, taking the employee on outings or walks, and fixing a meal on the day that the employee=s spouse had a respite. We are not persuaded.

The employer and insurer contend that the V.A. Hospital formerly set up insulin for the employee and that the V.A. should provide that service again. We note, however, that this employee has a significant brain injury and is blind in one eye as a result of his work injury. The most recent report addressing the employee=s need for skilled nursing care^[1] stated that the employee required a nurse to pre-fill insulin syringes. Clearly the employee=s blindness and brain injury are a substantial contributing cause of his inability to set up his own insulin.^[2] Whether or not another agency performed this service in the past or is available to perform the service now is irrelevant. The compensation judge correctly found that the services of a registered nurse for one hour a week were reasonable, necessary, and causally related to the work injury, and we affirm.

The employer and insurer=s primary argument with regard to the remainder of the services is that, because the employee=s wife or children could perform the services, the services should not be the responsibility of the employer and insurer. We are not persuaded.

The March 18, 2002, Home Health Plan of Care, signed by Dr. Edward Shaman, authorized up to 29 hours a week of home health aide services to assist the employee with personal care, activities of daily living, and an exercise program. That plan also authorized assistance to the employee=s wife with homemaking tasks and therapeutic outings in the community for socialization, noting that the employee=s wife reported Ataxing efforts for outings.@ That same form confirmed that the employee continued to have limitations with endurance and ambulation and that he needed assistance with ambulation.

The employee=s wife is his primary caregiver. The employer and insurer contend that shampooing, dressing, oral hygiene, helping with glasses and hearing aides, etc., are Aspousal duties@ and not compensable. However, the position that such care Ais merely that which is required of an affectionate spouse, has been rejected by most jurisdictions.@ Lundeen v. Horizon Fabricators, Inc., 56 W.C.D. 336, 347 (W.C.C.A. 1997). Minn. Stat. ' 176.135 provides that the employer shall furnish any medical treatment, Aincluding nursing,@ as may be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury. That statute does not define Amedical treatment@ or Anursing,@ but, if an employee is permanently totally disabled, a broader type of nursing care is compensable. Ross v. Northern States Power Co., 442 N.W.2d 296, 42 W.C.D. 7 (Minn. 1989). The question of whether specific services qualify as compensable medical expenses is primarily a question of fact for the compensation judge. Meyer v. The Travel Co., 49 W.C.D. 583 (W.C.C.A. 1993)

In the instant case, the permanently totally disabled employee sustained not only physical injuries resulting in physical impairments and restrictions but also a brain injury affecting his ability to perform activities of daily living. QRC records reflect that, when the employee returned to live at home in 1997, it was agreed that certain nursing and home health aide services were necessary. There is no evidence that the employee=s condition has improved since that time, and, as recently as 2002, Dr. Shaman was still authorizing assistance with personal care, activities of daily living, exercise, and therapeutic outings. Under these circumstances, substantial evidence supports the judge=s award of the services of a home health aide for three hours per day and an additional one hour of respite care each week.^[3] We therefore affirm the judge=s findings with regard to the home health aide services.^[4]

^[1] The March 18, 2002, Home Health Certification and Plan of Care.

^[2] The employee=s spouse learned to administer the insulin injections.

^[3] It should be noted that, in unappealed findings, the judge denied charges for general cleaning, vacuuming, dusting, housework, and day-to-day meal preparation, with the exception of a meal on the respite day.

^[4] The employer and insurer also contended that many of these services concern activities that the employee could accomplish on his own, and, at oral argument, counsel for the employer and insurer argued that the employee=s testimony as to his physical abilities to perform certain tasks was evidence of his abilities. We note first that the employee=s brain injury raises questions concerning the accuracy of the employee=s representations as to his abilities. Secondly, even assuming that the employee may be able to brush his own teeth or comb his hair, the records reflect that he is unsteady on his feet, and Astand-by@ assistance would be necessary in any event.