Virginia Court Reverses Award of Home Health Care Provided by Spouse

That an employer had paid for home health care by an agency in the past did not necessarily mean the care provided by an injured employee’s spouse was compensable under Va. Code § 65.2-603, held a Virginia appellate court in Cumberland Hosp. & Ace Am. Ins. Co. v. Ross, 2019 Va. App. LEXIS 231 (Oct. 22, 2019). The Commission was required to determine if the four requirements set forth in Warren Trucking Co. v. Chandler, 221 Va. 1108, 277 S.E.2d 488 (1981) had been met. Finding that the Commission had failed to consider the Chandler factors, appropriately, it stressed that even if paid help would have been required absent the spouse’s willingness to provide care, there still needed to be an appropriate finding that the actual care provided by the spouse was necessary medical care.

Background

In early 2012, while working as a registered nurse for the employer, Ross sustained severe injuries, including traumatic brain injury. The Commission entered several awards, including a lifetime medical award for post-concussion syndrome. Subsequently, the treating physician indicated that it was medically necessary for Ross’s safety and well-being “that she [be] provided with a home health aide or family member oversight” to help assist her with activities of daily living and to monitor safety concerns twenty-four hours a day, seven days a week.

From September 2016 to October 2017, employer provided home health care through an agency which provides home health care for elderly and disabled people. Four different aides from the agency provided care for Ross during this period. In August 2017, Ross filed a claim with the Commission requesting that the home health care be provided by her spouse. The agency initially hired Ross’s spouse in October 2017 to care for Ross but fired him three weeks later because he did not provide timely activity notes on Ross’s care as required by the employment agreement. After that point, Ross’s spouse and daughter were Ross’s only home care providers. By January 2018, Ross’s spouse had resigned his job to care for Ross.

Commission’s Findings

In its decision, the Commission acknowledged that it had to apply the holding in Warren Trucking Co. v. Chandler, 221 Va. 1108, 277 S.E.2d 488 (1981), before it could award compensation for spousal care. According to the appellate court, while the Commission enumerated the four requirements set out in Chandler, which it referred to as the “Chandler test,” it did not address whether those requirements had all been met. The Commission reasoned that the Chandler test was only applicable in determining whether home health care was medically necessary. The Commission found that here both the evidence and the parties’ stipulations had established that home health care was reasonable and necessary treatment. Based on that conclusion, the Commission found an application of Chandler was not required.

Appellate Court Disagrees

The Court disagreed. Indeed, the issue here was not so much if home health care was medically necessary, but rather whether the services provided by the spouse constituted such care. Accordingly, the Commission erred when it failed to apply Chandler to the dispute. The Court reiterated that under Chandler, the employer must pay for the care performed by a spouse if:

1. The employer knows of the employee’s need for medical attention at home as a result of the industrial accident;
2. The medical attention is performed under the direction and control of a physician, that is, a physician must state home nursing care is necessary as the result of the accident and must describe with a reasonable degree of particularity the nature and extent of duties to be performed by the spouse;
3. The care rendered by the spouse must be of the type usually rendered only by trained attendants and beyond the scope of normal household duties; and
4. There is a means to determine with proper certainty the reasonable value of the services performed by the spouse.

The Court continued that the dispositive question was whether, “under the circumstances of this case, the services performed by this spouse in attending to the needs of the disabled claimant qualify as ‘other necessary medical attention’ within the meaning of Code § 65.2-603” [quoting Chandler, 221 Va. at 1114, emphasis added by Court]. The fact that the employer had paid for home health care by an agency in the past, did not necessarily mean the care provided by Ross’s spouse was compensable under Code § 65.2-603. To determine if care rendered by Ross’s spouse was necessary medical attention, the Commission had to analyze Chandler’s four requirements, and it had failed to do so.