An unfortunate reality of many work-related injuries is that injured employees suffer severe permanent disabilities that call for attendant care.
An unfortunate reality of many work-related injuries is that injured employees suffer severe permanent disabilities that call for attendant care. Often times when an employee suffers an injury to his spine and loses, or impairs the function in his legs or arms, he needs someone by his side to help perform activities of daily living and also provide the necessary care that goes along with such a severe impairment. Many of these duties require intimate contact with the injured worker and at least initially, can create feelings of embarrassment on the part of the employee. Obviously the thought of relying on a total stranger to help with using the bathroom or changing a catheter, does not sit well with most people. Therefore, if an injured worker’s spouse can perform all or most of the duties normally provided by a nurse or nurse’s assistant, then naturally that injured employee would prefer to deal with someone who is already familiar with him on an intimate basis and can be there at all times.
If the spouse is capable of providing attendant care, a question arises: Is that person entitled to payment for the services provided to the injured spouse? In Georgia, the legislature and courts have addressed this issue but have not provided a clear answer. However, from a financial perspective, an employer may find it beneficial to pay for these services. In coming to this conclusion, one must first understand an employer’s obligation to provide in-home attendant care to an injured employee.
O.C.G.A. §34-9-200(a) provides: “the employer shall furnish the employee entitled to benefits under this chapter, such medical, surgical, and hospital care and other treatment, items and services which are prescribed by a licensed physician… which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to affect a cure, give relief, or restore the employee to suitable employment.” (emphasis added)
In interpreting this statute, the State Board of Workers’ Compensation has addressed an injured workers’ right to obtain attendant care. According to Board Rule 203(d): “medical expenses shall include the reasonable cost of attendant care that is directed by the treating physician during travel or convalescence.” Thus, it is clear when an injured employee’s treating physician(s) orders in-home attendant care, the employer is obligated to pay for these services. However, neither the legislature nor the State Board provide any guidance on whether spouses should be paid for providing these services. For a discussion on that issue one must look to the Georgia Court of Appeals. In 1939, the Court was asked to determine if Earl Wilbanks’ wife should be paid for four weeks of bedside attendant care performed during the injured worker’s recovery from an at-work accident. During his convalescence, Mr. Wilbanks was bedridden and needed assistance taking medications, going to the bathroom, bathing, and feeding. All of these functions were performed by his wife, who upon completing her care, sought payment for her services. Although the case was decided before a significant amendment in 1985 to O.C.G.A. §34-9-200(a), the Court’s rationale was based upon sound law.
In denying Mrs. Wilbanks’ claim for payment, the court, citing an earlier decision, found “neither husband nor wife can recover in an action on contract for services rendered to the other in sickness, since legal duty of husband and wife is to attend, nurse, and care for the other when either is unable to care for himself, and services between members of the household being presumed to be gratuitously rendered.” Thus, the court reasoned that because Mrs. Wilbanks already had a marital obligation to care for her sick husband, she was not entitled to payment for performing attendant services. Bituminous Casualty Corp. v. Wilbanks, 4 SE 2d 916, 60 Ga. App., 620 (1939).
Unfortunately, this was the only case Georgia courts have addressed dealing with spousal entitlement to payment for attendant services. Nevertheless, the courts have decided the same issue involving other members of an employee’s family. In 1987, the Court of Appeals heard arguments on whether an employee’s emancipated daughter should be paid for providing non-medical at-home attendant care to her mother, who suffered a work-related injury and had become permanently bedridden. At the time of the injury, the employee’s daughter was living on her own, and when she learned of her mother’s need, quit her job and moved in with her mother in order to provide care.
The fact the employee’s daughter was not living at home prior to her mother’s injury seemed to be the deciding factor in the court’s decision that she be paid for her services. Distinguishing the Wilbanks case, the court stated: “[A]ppellee does not seek to recover from appellants the cost of any services which were performed by her spouse or anyone who is a member of her household at the time of her injury, or by anyone having a legal rather than moral obligation to provide for her care.” Interchange Village et al v. Clark, 363 SE 2d 350, 185 Ga. App. 97 (1987).
In applying a common sense interpretation of the law to the situation at hand, the Court went on to state: “[A]ppellee, as an employee suffering from an on-the-job injury, is entitled to recover from appellants, as the employer and insurer, the cost of such non-medical, at home attendant care as is prescribed by her physician. Appellants cannot escape legal responsibility for the cost of those services, simply because it is appellee’s emancipated daughter and not a stranger who is providing them.” Therefore, by ruling family members without a legal duty to provide care to other family members are entitled to payment for providing attendant services, the Court of Appeals, in essence, reaffirmed its earlier ruling that an employer does not have to pay a spouse for providing attendant care.
However, despite being able to use this ruling to object to similar requests by injured employee’s spouses, employers and insurers should think about the financial ramifications of denying such a request. After the Clark decision, the Georgia Workers’ Compensation Fee Schedule added a provision that set hourly rates for non-medical attendant care provided by family members (See Georgia Fee Schedule section XII at 343). Notably, the Fee Schedule provides that when at least four hours of attendant care are performed by an injured employee’s family member, that family member is entitled to a maximum of $8.50 per hour, with a cap of 12 hours per day. Compare this to the hourly rate of a certified nurses’ assistant or nurse, which ranges from $21.00 to $50.00 per hour, depending on the level of skill.
Therefore, because O.C.G.A. §34-9-200(a) mandates employers and insurers pay for in-home attendant care, allowing an employee’s spouse to provide these services (if capable), could potentially save the employer/insurer thousands of dollars. Accordingly, if an injured employee’s treating physician orders non-medical attendant care, and the services can be performed by the employee’s spouse, the fact the employer/insurer has no legal obligation to pay for these services should not discourage acquiescence.