In Hardee, the Court of Appeals held that a claimant/spouse was not precluded from recovering the cost of attendant care services which were medically
In Hardee, the Court of Appeals held that a claimant/spouse was not precluded from recovering the cost of attendant care services which were medically prescribed and which the employer refused to provide. The Claimant, Peggy Hardee, was struck in the head with a cashbox during a robbery. Thereafter, she had significant memory problems which caused her to forget to turn off the electrical appliances such as the stove, and she would often become dizzy and fall. Due to Hardee’s continued mishaps related to her poor memory and vertigo, two medical doctors and a clinical psychologist recommended that she receive as workers’ compensation benefits eight hours a day of attendant care, stating that the services were medically necessary. Thereafter, the claimant’s retired husband, Louis Hardee, provided the recommended attendant care services to his wife. He subsequently testified that he did not provide the services to his wife because he expected to be paid, but because he loved her.
The claimant subsequently requested a hearing to determine if the employer was required to provide her with the services of a professional attendant care agency and if her husband was entitled to reimbursement for the attendant care that he had previously provided. At trial, the Administrative Law Judge (ALJ) found that the claimant’s husband was not entitled to reimbursement for the attendant care services he provided, however; the claimant was entitled to professional attendant care services in the future. On appeal, the Appellate Division of the State Board agreed with the ALJ that the claimant was entitled to professional attendant care services however, they reversed the ALJ’s findings with respect to the claimants’ husband’s entitlement to reimbursement for attendant care services, finding that he was entitled to reimbursement for attendant care he personally provided. The Superior Court subsequently affirmed the Appellate Division’s award for attendant care services provided by the claimant’s husband.
On appeal, the Court of Appeals concluded that, in light of the findings of the Appellate Division, the claimant’s husband was entitled to reimbursement for the attendant care services he provided to the claimant. The Court found that while the husband could be expected to assist his brain damaged wife, he was not required to provide all the attendant care services that the claimant may require. Simply put, the Court of Appeals found that the husband was not legally required to provide the physician prescribed attendant care, it was the employer’s responsibility to do so under the Workers’ Compensation Act. That the Appellate Division ordered the employer to pay for what the employer was legally required to provide did not constitute a legal error. The Court of Appeals further concluded that the award was not barred by the fact that the evidence showed that the husband was motivated by love for his wife rather than the expectation of compensation/reimbursement for providing attendant care services. The Court found that although the husband may have a moral duty to assist his wife, an employer or insurance carrier is not a third party beneficiary to a marriage contract. Furthermore, in the absence of a duty to pay in this case, not only would the employer be relieved of its statutory obligation to pay for attendant care services, it would benefit from what the Appellate Division found to be its unreasonable delay in providing the attendant care services.
The Court of Appeals went on to indicate that they were not suggesting that ordinary services provided by one spouse to another and not otherwise shown to be the responsibility of the employer under the Act where compensable. However, given that the Workers’ Compensation Act does not preclude reimbursement for attendant care services provided by a spouse and that the evidence supported the Appellate Division’s conclusion that the husband provided the medically prescribed attendant care services which the employer refused to provide, the husband was entitled to reimbursement for the services rendered.
Practically speaking, in dealing with a workers’ compensation claim where authorized physician prescribed attendant care has been recommended for the claimant and a spouse or other competent family member was capable of providing these services, the employer and insurer should make a determination as to which would be the most cost effective way to provide the attendant care services; either through reimbursing the spouse/family member or arranging for the services to be provided by a professional attendant care company. However, the bottom line is that an employer and insurer cannot simply ignore an authorized physician prescribed recommendation for attendant care and would need to authorize these services in the most cost effective manner.