MEDICAL TREATMENT & EXPENSE – NURSING SERVICES. Substantial evidence, including the opinion of a life-care planning expert, supports the compensation judge’s evaluation of the employee’s need for family-provided nursing services.
Compensation Judge: Stephen R. Daly
Attorneys: Gary Manka, Katz & Manka, Ltd., Minnetonka, Minnesota, for the Appellant. Gina Uhrbom, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Cross-Appellant.
Affirmed.
KATHRYN H. CARLSON, Judge
The employee appeals the compensation judge’s determination of the valuation of family-provided nursing services and denial of penalties, and the self-insured employer appeals the compensation judge’s determination of the employee’s permanent total disability status and the retroactive award for family-provided nursing services. We affirm.
The employee, Daniel Peterson, sustained an injury to his low back on May 4, 1980, while working for the employer, Northern States Power now known as Xcel Energy.[1] He moved to Florida in 1984, where he has resided ever since. In 1989, he married Claire Peterson. Following his work injury, the employee continued to experience ongoing low back and right lower extremity pain, and after failed conservative care, he underwent surgical procedures related to his injury in 1989 and 1990. Those procedures did not provide improvement. On June 3, 1993, the employee underwent a functional capacity evaluation at which time he showed an ability to perform sedentary to light levels of activity with occasional lifting and carrying of 15 pounds, sitting six to eight hours per day and changing positions every 30 minutes, as well as standing and walking for two to four hours in 15 to 30-minute increments, and occasional stooping, bending, and squatting. (Finding 2, Ex. 14.)
On September 9, 1994, the employee was found to have a chronic herniated disc at L4-5 with right nerve irritation, but he was not considered a good surgical candidate. His medical providers recommended that he continue physical therapy and work no more than four to six hours per day at a sedentary job with no heavy lifting, bending, or twisting. (Finding 3, Ex. O.) He was limited further by his doctor in August 1995 to working four hours per day, five days per week because of his chronic pain. (Finding 4, Ex. Z.) In 1995, his physician assessed him as permanently and totally disabled and recommended psychological counseling. Despite this, the employee was medically cleared to volunteer 20 hours per week and no other treatment was recommended at that time. (Finding 5, Ex. O.)
By the early 2000s, the employee’s symptoms continued to worsen. He attended an in-patient pain program to manage his pain and anxiety through conservative care and narcotics. In January 2007, an MRI showed a moderate to large central and right paracentral disc herniation indenting the thecal sac, causing severe spinal canal stenosis. (Finding 15, Ex. LL.) In December 2015, his treating physician noted that his back pain was “stable on current medications” with no change since his last visit. (Finding 17, Ex. MM.) By December 2018, although he had normal gait, station, and stability on examination and normal muscle strength, his physician noted that he could not bend down and needed help tying his shoes. (Finding 19, Ex. MM.)
In 2021, the employee continued experiencing ongoing low back pain, weakness, and urinary incontinence. An MRI at that time showed severe degenerative disc disease in his lumbar spine with no acute emergent process. The employee was referred to a urologist and pain management specialist. (Finding 22, Ex. PP.) That year he also treated for left leg swelling, renal failure, and alcohol abuse. (Finding 24, Ex. MM.) He was able to walk for 34 seconds unassisted, as witnessed by video surveillance on June 19, 2021. He was seen at the emergency room in March 2022 for low back pain radiating into the upper right extremity, right foot numbness and weakness, and sensation changes to the right leg. He also reported precipitating urinary urgency. An MRI ordered to rule out cauda equina syndrome again showed severe degenerative disc disease. (Finding 28, Ex. PP.)
The self-insured employer paid temporary total disability benefits from the date of the injury until May 2020, when the parties entered into a stipulation for settlement. They stipulated that the employee had been permanently and totally disabled since the date of injury, May 4, 1980, and that temporary total benefits were to be converted to permanent total disability benefits. No other benefits past, present, or future were closed out.
The employee was seen on April 22, 2022, by Dr. Shaun Corbett at the request of the employer for a medical evaluation. Dr. Corbett noted that the employee was able to ambulate independently and get up and out of a chair independently. He agreed that it was reasonable to assume that Claire Peterson took responsibility for many household chores over the years and that the employee would need occasional assistance with some activities. He did not feel that the employee required full-time nursing services at that time but did feel that the employee’s worsened lower extremity venous stasis would likely decrease his ability to be independent and temporarily increase his need for family-provided nursing services. (Ex. 3.)
In the spring of 2022, the employee’s condition declined further. He developed lower extremity issues including swelling, wounds, and infections, as well as other personal medical conditions. He was hospitalized four times in 2022. A few days after the evaluation with Dr. Corbett, the employee was seen for leg pain, swelling, and weeping. Paste boots were applied to his legs. In addition to the cares listed above, the employee’s wife also assisted him with compression boots two times per day. The employee underwent an endovenous radiofrequency ablation on May 9, 2022, and again on June 8, 2022. Two days later he was admitted to the hospital for bilateral lower extremity cellulitis and edema. He was readmitted on June 27, 2022, for intravenous antibiotics for increased warmth, swelling, and redness in the left lower extremity. The employee was next seen on August 4, 2022, and reported that he was independent with activities of daily living (ADL) and instrumental ADLs. The employee was diagnosed with venous insufficiency, stasis dermatitis, cirrhosis, tachycardia, and hypoalbuminemia. The employee was hospitalized again in October 2022 for confusion as well as redness, swelling, and drainage in his bilateral lower extremities and was diagnosed with recurrent cellulitis. In November 2022, he was hospitalized again, for a gastrointestinal bleed. In addition to increased medical needs during this time, testimony by Claire Peterson, the employee, and Courtney Mitchell, an occupational therapist and certified life care planner, also indicated that the employee had suffered a cognitive decline since April 2022. [2] A care log prepared by Claire Peterson on January 10, 2023, prior to the first day of hearing, shows that she provided continual care for him. (Ex. EEE.)
The employee filed a medical request and claim petition for payment of family-provided nursing services for care provided by his wife since the date of their marriage in 1989 to the present, penalties, permanent partial disability benefits for loss of teeth, and authorization for several specialty medical consultations. The matter was heard before a compensation judge on January 24 and April 7, 2023. The employee, Claire Peterson, Linda Graham, and Ms. Mitchell testified as to the family-provided nursing services provided to the employee for his work-related injury.
The employee’s claim for family-provided nursing services was based on the report and testimony by Ms. Graham, a registered nurse and certified life care planner, which supported a claim for increasing amounts of care from 1989 to the present, including a recommendation for live-in home-based care since 2015 when the employee’s wife was laid off from her full-time job and chose to stay home and care for her husband. The opinions of Ms. Graham were based primarily on her discussions and emails with Claire Peterson and a review of a medical summary. Based on that information, she felt that the employee’s need for care should be viewed in three stages, which were 1989 to 2000, 2001 to 2009, and from 2010 to the present. In her report and during her hearing testimony, she outlined the hours of care that Claire Peterson provided during each stage, with the number of hours increasing during each period.
During the first of these stages, Ms. Graham opined that the employee needed one hour of care per day in 1989, and up to three hours of care per day as of 1999. During the second stage, the employee needed more care in terms of emotional support as he was dealing with depression. He also needed additional assistance with medical transportation and getting prescriptions filled. During that stage, Ms. Graham assessed his need for three to five hours per day of care. During the third stage, which began in 2010, the employee’s needs increased due to multiple dental appointments[3] and a decline in his medical and mental health condition. Claire Peterson did all the household chores, prepared all meals, gave him daily massages to help with pain, helped with dressing, and provided emotional support.
Ms. Graham valued the nursing services provided by Claire Peterson at the cost that a home health care agency would charge for the same services. The cost of the care ranged from $9.00 per hour in 1989 to $343 per day (the cost of a live-in aide) as of the date of the hearing. That valuation was based on her experience working in home care in 1989 and her “best attempt” to compare the Florida market to Minnesota. (T. 95.) With regard to the cost of a live-in aide, she testified the daily rate was information she received based on her own research and consulting the Genworth Cost of Care Survey.[4] The employee’s need for live-in aide level care was supported by two of the employee’s medical providers, Nurse Practitioner Laura Uchoa and Dr. Carine Porfiri, who authored letters indicating that they agreed with Ms. Graham’s report.
Ms. Mitchell evaluated the employee on April 18, 2022, and prepared a report addressing the employee’s family-provided nursing care needs. She also testified at hearing. Ms. Mitchell’s opinions were based on her expertise, a review of the medical records, a review of the employee’s prior deposition testimony, and an in-person meeting with the employee and Claire Peterson. Regarding the claim for family-provided nursing services back to 1989, she considered the contemporaneous medical records which made reference to the employee’s ability to function, as well as the information that she was given by the employee and his wife. Based on that information, she first used data collected by a database, Dollar Value of a Day 2020 from Expectancy Data, to determine the amount of time the employee’s wife would spend each week performing his share of household duties, she then added time to that amount for additional nursing services such as massage, driving, and personal cares. Each time the medical records, prior deposition testimony, or information provided by the employee and Claire Peterson showed a change in ability to function, she adjusted the amount of time required for nursing services. Ms. Mitchell’s report and testimony showed that the employee needed 3.67 hours of care per week in 1989, increasing to 11.04 hours per week in 2021, and up to 11.4 hours in 2022, if there was no additional adaptive equipment. She did not find that there was any objective need for live-in aide care, and that the availability of round-the-clock care following Claire Peterson’s loss of her job did not justify full-time nursing services.
Ms. Mitchell valued family-provided nursing services based on the hourly rate a personal care attendant would earn. She derived that valuation from data published by the United States Bureau of Labor and Statistics for each geographic area by median wage. For time periods prior to 1997, the first year the data was published, she determined the minimum wage for each year, and multiplied that number by 167%, which is the percent over the minimum wage that was typical for a personal care attendant. She did not think that using an agency rate was appropriate as it incorporates business overhead a family member would not incur and also a profit margin.
Claire Peterson testified that she assists the employee with compression boots two times per day, performs 100 percent of the household chores, prepares all of the meals, administers daily massages to address the employee’s pain, dresses his wounds, and provides emotional support. She further testified that she worked full time until 2015, when she was laid off. By that time, the employee’s condition had “deteriorated immensely” so they decided to sell property in order to afford for her to stay home and care for him at that time, and she has been “on call” for him ever since. She monitors his medications, protects against his fall risk, and addresses any need at any time.
Both Ms. Graham and Claire Peterson testified that the employee wakes several times at night and requires assistance to the bathroom. This process requires Claire Peterson to get out of bed, help the employee get out of bed, stand, get to his walker, and then when he is finished, she gets him back to bed and positions him onto the bed. Some nights he will experience incontinence, which requires her to clean him and change the bedding.
The compensation judge issued his Findings and Order on May 31, 2023, finding that that the employee has been permanently and totally disabled since May 4, 1980, the date of injury; family-provided nursing services were reasonable and necessary as set forth by the report and testimony of Ms. Mitchell from 1989 through December 31, 2022, and for six hours per day beginning January 1, 2023; and that the employee is not entitled to payment of penalties for late payment of family-provided nursing services. The employee appeals the findings regarding the amount of hours, the value of the family-provided nursing services awarded, and the denial of penalties. The self-insured employer cross-appeals the finding that the employee has been permanently and totally disabled since May 4, 1980, and the retroactive award of family-provided nursing services.
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(3). 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 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).
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
The self-insured employer argues that since the award on stipulation was issued on May 17, 2020, the employee was adjudicated to be permanently and totally disabled as of that date and not as of the date stipulated in the settlement; May 4, 1980. We do not agree.
The parties entered into a Stipulation for Settlement in May 2020, which provides:
It is stipulated and agreed that it is the express intention of the parties by and through this Stipulation, to stipulate that the employee has been permanently and totally disabled since the date of injury and that all temporary total disability benefits paid since that time be recharacterized as permanent total disability benefits . . . .”
(Ex. 19.)
The stipulation went on to state that the employee reserves any and all future claims for workers’ compensation benefits and the employer reserves its right to any and all defenses. Id. The employer argues that the intent of the stipulation for settlement was to recharacterize temporary total disability benefits as permanent total disability benefits in order to take advantage of any potential social security offset allowed by Minn. Stat. § 176.101, subd. 4. The employer contends that the language was never intended to open up a potential claim for nursing services dating back to 1980. The compensation judge found that the parties were bound by the plain language of the stipulation.
Stipulations for settlement are contractual in nature. See Forseth v. Kato Eng’g, slip op. (W.C.C.A. Oct. 7, 1999); Husnik v. J.C.Penny Co., 57 W.C.D. 264 (W.C.C.A. 1957). The interpretation of a contract is a question of law, to be reviewed de novo. Valspar Refinish v. Gaylord’s Inc., 764 N.W.2d 267, 271 (Minn. 2009). In interpreting a contract, the language should be given its plain meaning. Brookfield Trade Ctr., Inc., v. Cnty. of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998). The primary goal of contract interpretation is to determine and enforce the intent of the parties. Where there is a written instrument, the intent of the parties is determined from the plain language of the instrument itself. Knudsen v. Transport Leasing, 672 N.W.2d 221, 223 (Minn. App. 2003). Where a contract provision is clear and unambiguous, courts should not rewrite, modify, or limit its effect by a strained construction. Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267 (Minn. 2004) (citing Telex Corp. v. Data Products Corp., 271 Minn. 288, 295, 135 N.W.2d 681, 687 (1965); Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 178, 84 N.W.2d 593, 601 (1957); Grimes v. Toensing, 201 Minn. 541, 545, 277 N.W. 236, 238 (1938)). In the case at hand, the language of the stipulation is clear and unambiguous. There is no language limiting the meaning of “permanent total disability” to apply only to indemnity benefits, and there is no basis for this court to add language to the stipulation or infer limitations which are not found in the document. As agreed upon in the stipulation for settlement and as found by the compensation judge, the employee has been adjudicated to be permanently and totally disabled since May 4, 1980, and we affirm.[5]
The employer also argues that if the employee is entitled to family-provided nursing services prior to May 2020, then the valuation of the family-provided nursing services must be based on the standard set forth in Ross v. Northern States Power Co., 442 N.W.2d 296, 42 W.C.D. 7 (Minn. 1989).[6] Minn. Stat. § 176.135, subd. 1 (1978) provides, “[t]he employer shall pay for the reasonable value of nursing services by a member of the employee’s family in cases of permanent total disability.”[7] However, the Ross standard applies only when the employee has not been determined to be permanently and totally disabled. This case is distinguishable from Ross since we have established that the employee has been permanently and totally disabled since May 4, 1980, therefore, we disagree with the employer’s argument. In Gudmundson v. Indep. Sch. Dist. No. 857, slip op. (W.C.C.A. Dec. 12, 2002), this court held that to establish compensability of nursing services in permanent total disability cases, an employee must show: 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 circumstance in which the services are provided; and 3) the reasonable value of the services. The types of services an employee’s family member may provide were discussed in Sorcan v. USX Corp., 58 WCD 159 (W.C.C.A. 1997), summarily aff’d (Minn. Apr. 7, 1998), and may include personal services rendered necessary by the employee’s disability such as bathing, assisting with medication, meal preparation, dressing, driving, personal care, household chores, transferring in and out of chairs and bed, bathroom needs, and extra laundry or housekeeping.
The parties agree that some family-provided nursing services were reasonable and necessary dating back to 1989, when the employee married. The disagreement is over the amount of care the employee has needed since 1989, and the value of those services. Both parties introduced narrative reports of life care planning experts and both experts testified at hearing. The compensation judge found the opinions of Ms. Mitchell, the expert for the employer, more persuasive and adopted her opinions regarding hours and valuation, and we affirm.
The employee objected to the foundation of Ms. Mitchell’s opinion. “An expert opinion lacks adequate foundation when the opinion does not include the facts upon which the expert is relying in forming the opinion, there is no explanation of the basis for the opinion, or the facts assumed by the expert are not supported by the evidence.” Erickson v. Grand Itasca Clinic & Hosp., No. WC21-6413 (W.C.C.A. Nov. 16, 2021) (citing Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017)). The employee argues that, in this case, the facts assumed by Ms. Mitchell are not supported by the evidence. We disagree.
Ms. Mitchell interviewed the employee and Claire Peterson in person for two and one-half hours. She was able to observe the employee, she reviewed the employee’s testimony from two prior depositions as well as the deposition testimony of Claire Peterson, and she also listened to their hearing testimony prior to her own testimony. She reviewed voluminous medical records, paying specific attention to notes regarding the employee’s functionality and need for assistance with ADLs. Her opinion reflects the decline in his condition since 1989, and in fact, she acknowledged at hearing that the employee’s condition had further declined since her evaluation eight months earlier. (T. 399-400, 426.) Her report and her testimony point to specific medical records to support her opinion as to the amount of care he needed and household chores he was unable to do during each time frame. The time frames were broken down by year, rather than decades, to provide the best approximation of the correct amount of care he needed. Specifically, as to the claim for live-in aide care beginning in 2015, she noted that there was no change in the employee’s diagnosis and no reported change in his condition or ability to function in the medical records. Instead, the only change was Claire Peterson’s layoff in 2015, when she chose to stay and care for the employee rather than return to the work force.
The employee also disputes the compensation judge’s finding on the value of the family-provided nursing care services. The compensation judge adopted the valuation of the services determined by Ms. Mitchell, who used wages a home health care worker would earn, rather than an agency rate used by Ms. Graham, the employee’s expert. Ms. Mitchell testified that the hourly rate was appropriate because Claire Peterson does not have overhead costs associated with an agency. The hourly rate she used was based on the United States Bureau of Labor and Statistics, which provided median wage rates based upon the employee’s geographical location.
The employee argues that the compensation judge should have used the agency rate provided by Ms. Graham, as that is what the employer would have to pay to replace the services provided by Claire Peterson. This rate, they argue, is required by Minn. Stat. § 176.135, subd. 3, which was in effect on the date of injury, and provides:
Subd. 3. Limitation of liability. The pecuniary liability of the employer for the treatment, articles and supplies required by this section shall be limited to such charges therefor as prevail in the same community for similar treatment, articles and supplies furnished to injured persons of a like standard of living when the same are paid for the injured persons. On this basis the commission may determine the reasonable value of all such services and supplies and the liability of the employer is limited to the amount so determined.
This statute does not require that the value of family nursing services be agency or replacement rates. It simply provides that the limit of the employer’s liability is what it would cost the employee to replace that service in his community.[8] In Alexander v. LaLonde Enters., 288 N.W.2d 18 (Minn. 1980), the Minnesota Supreme Court affirmed a finding that the value of the services provided by the injured employee’s spouse was the beginning wage rate of a licensed practical nurse in local area hospitals, without including the value of fringe benefits. In Novotny v. St. Paul United Methodist Church, 338 N.W.2d 266, 36 W.C.D. 156 (Minn. 1983), the Minnesota Supreme Court held that replacement costs for nursing services was appropriate, as that was the evidence provided by all parties and the amount awarded was within the range of charges to which the witnesses testified. Id. at 268, 36 W.C.D. at 159. The reasonable value of nursing services by a member of the employee’s family in cases of permanent total disability is a question of fact. Alexander, 288 N.W.2d at 21. There is substantial evidence to support the compensation judge’s findings regarding both the amount of nursing services to which the employee is entitled and the value of those services. As such, those findings are affirmed.
On appeal, the employer argues that the compensation judge erred by finding that treatment provided in June 2022 was related to the employee’s work injury. Finding 33, of the compensation judge’s order states:
On June 10, 2022, the employee was admitted to Holy Cross Hospital for treatment of bilateral lower extremity cellulitis. Bilateral edema was noted with the left leg far worse that the right. He was discharged on June 13 with a diagnosis of nonhealing wounds/ulcerations associated with cellulitis and chronic lymphedema due to immobility from his previous spinal injury.
(Emphasis added)
At the beginning of the hearing, the parties set out the issues to be determined by the compensation judge. The parties agreed that causation for the lower extremity condition was not an issue to be determined by the compensation judge. (T. at 30-32.) A compensation judge lacks jurisdiction to make findings on any matter not raised as an issue at hearing. Minn. Stat. § 176.371; Carroll v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 31, 1992). As such, the compensation judge’s finding is to be read as a recitation of the discharge note of Holy Cross Hospital dated June 12, 2022, rather than a finding of causation on the employee’s lower extremity conditions. (Ex. PP.)
The employee argues in his brief that the compensation judge erred in denying a claim for penalties relative to the employer’s delay in paying for family-provided home nursing services. However, that issue was not raised in the employee’s notice of appeal. The review of this court is limited to those issues raised by the parties in the notice of appeal. Minn. Stat. § 176.421, subd. 6; Taber v. Waste Mgmt., slip. op. (W.C.C.A. Sept. 21, 2004). As such, that issue cannot be considered by this court.
[2] Claire Peterson testified that by this time the employee was having memory issues and confusion and was not always able to accurately report his symptoms to his physicians. (T. 267, 335.) The employee testified that he gets confused easily. (T. 352.)
[3] Due to long-term opioid medication use, the employee lost all of his teeth and uses dentures.
[4] There was no source of information noted in Ms. Graham’s report, but she testified at hearing that some of her information regarding agency costs came from Genworth.
[5] The employer further argues that the date of adjudication, in this case the date of the award, controls and limits claims for benefits prior to that date. However, the date of adjudication is not the same as the date the employee is adjudicated to be permanently and totally disabled. Again, he has been adjudicated to be permanently and totally disabled as of May 4, 1980, even though the adjudication did not happen until 2020.
[6] In Ross, the Minnesota Supreme Court held that when a person has not been determined to be permanently and totally disabled, nursing care services by a family member can only be compensable if four criteria are met: 1) the employer knows of the employee’s need for nursing services to cure and relieve the effects of the work injury; 2) the nursing care is specifically prescribed and performed under the direction and control of a physician; 3) the care given is beyond the scope of normal household duties and is of the type usually rendered be trained medical personnel; and 4) there is a means of determining the reasonable value of the services performed. Ross, 442 N.W.2d at 300, 42 W.C.D. at 15.
[7] The compensation judge, in his memorandum, cites Minn. Stat. § 176.135, subd. 1(b) (2022) as the controlling statute. Pursuant to Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), the law in effect on the date of injury controls. (“a basic tenant of workers’ compensation law that the substantive rights of employer and employee are fixed . . . by the law in effect on the date of the controlling event.”). The current statute is the same language as the 1978 edition regarding valuation of nursing services provided by family members in cases of permanent total disability.
[8] The employee also argues that if Claire Peterson was unwilling or unable to provide the services needed, then the employer would be liable for the agency cost of care. That argument is not persuasive, however, since the employee’s claim is for reimbursement of family-provided nursing care services, not payment for care provided by an agency.