When an employee suffers a catastrophic personal injury on the job there are countless medical costs that may arise during the recovery period and even for the rest of the injured employee’s life. These costs won’t become known until after the injured employee completes his or her in-patient rehabilitation program, undergoes the appropriate medical operations, and reaches maximum medical improvement (MMI) for his work-related injuries.
One possibility is that the injured employee will go home instead of to a nursing home facility. If so then the injured worker must figure out how to do activities of daily living such as cooking, cleaning, bathing, grooming, dressing, shopping for groceries and necessary items, changing sheets, doing laundry, getting to and from medical appointments and therapy, remembering to take prescription medication, and changing diapers or catheters if necessary. These are difficult things to do for an injured employee who has suffered a traumatic brain injury or severe physical injury. And figuring out a plan for life after the work accident requires input from many different people and parties.
There are many workers compensation benefits available to injured employees in Virginia. These include temporary total disability payments for wage loss up to 500 weeks, permanent disability payments for loss of use of certain body parts, permanent total disability for wage loss that lasts more than 500 weeks, and lifetime medical benefits for all causally related work injuries.
The Virginia Workers Compensation Commission has held that the employer is responsible for the cost of home nursing care if it’s prescribed by a treating physician and is reasonable and medically necessary. Lusby v. Va. Shipbuilding Corp., 1 O.I.C. 146 (1919).
When home nursing care is necessary for work-related injuries, the employer and its insurance carrier get to choose who will provide the services in Virginia. The injured employee does not have the authority to make the selection. All that matters is that the employer chooses an in-home medical care provider who meets the requirements established by the treating physician.
Does the employer have to pay for home care rendered by the injured worker’s spouse?
The Commission will require the employer to pay for home care rendered by an injured employee’s spouse if:
1. The employer knows of the need for medical attention at home as the result of the industrial accident;
2. The medical attention is performed under the direction and control of a physician;
3. The care rendered by the spouse is of a 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.
Warren Trucking Co. v. Chandler, 221 Va. 1108 (1981). Regular household chores and transportation is not considered “other necessary medical attention” under the Virginia Workers Compensation Act.
An employer may have to pay for home nursing services provide by a friend or family member of the injured employee. Anselmo v. Cherrydale Motors, VWC File No. 183-05-98 (October 2, 1998); Womble v. E.C. Womack, 49 O.I.C. 339 (1967). Part of the test is whether the friend or family member has to quit their job or reduce their hours in other employment to provide home nursing care that is authorized by the treating physician.
Because of the cost – financial, time, and otherwise -of in home medical care, consult with a Virginia work injury lawyer when trying to get these services covered. You may have to file a change in condition claim and present your case at a workers compensation hearing if the employer and its insurer refuse to pay you fair value for the services or to even offer them.
What about part-time in-home medical care?
The Commission may require an employer to pay for home nursing care even though it’s not needed for the entire day or even most of the day. The same is true even if the injured employee is not confined to home.
In Lynchburg Foundry Company v. Goad, Record No. 0614-92-2 (February 16, 1993) the Court of Appeals affirmed the Commission’s finding that home nursing care authorized by the injured employee’s doctor was necessary under the Workers Compensation Act.
In that case the doctor arranged for the employee to receive daily home nursing care to change his burn dressing using aseptic technique. The employer denied responsibility, pointing out that the employee was able to leave home to have the dressing changed and that he traveled to the doctor’s office for weekly evaluations.
Affirming the Commission, the Court of Appeals stated that the periodic dressing changes were medically necessary as a result of the compensable injury by accident. Though the treatment did not need to be provided at home, there was no evidence that the injured employee had knowledge that the treatment was excessive or unnecessary so that he should have refused to accept it or request an alternate form of care. The court also pointed out that had the injured employee refused the home health care, the employer may have filed an application for hearing to suspend benefits.
Does cost play a factor in whether the Commission approves in-home nursing care?
Yes, the Commission will consider the cost of medical treatment if medical care can be provided at the injured employee’s home or in a nursing home facility.
In Jackson v. Clemons Agency, Inc., Claim No. 127-93-99 (April 3, 1991) the employer filed an application for hearing looking to move the injured employee from home nursing care to a skilled nursing home facility. The reason: home nursing care was costing more than $130,000.00 per year and the employer could save more than $60,000 per year by transporting the claimant to a nursing home.
The employer provided deposition testimony from Dr. Ross, the employee’s treating physician. Dr. Ross testified that the employee was being well cared for in his home but that equally appropriate medical care could be provided in a nursing home facility. He made no recommendation regarding transferring the employee to a nursing home nor did he say that one type of treatment was better than the other.
The deputy commissioner denied the employer’s application and assessed attorney’s fees against the defendants based on a finding that the claimant had been brought without reasonable grounds. The deputy commissioner stated that the only factor in support of the employer’s application was that it was cheaper to put the claimant in an institution.
On appeal the full Commission reversed the denial. It found that it could not “disregard the substantial monetary benefit which the employer would realize by having the claimant cared for in a nursing facility. If equally appropriate medical care can be provided the claimant in either facility, as apparently is the case here, the monetary benefit realized by the employer by providing such service in one facility as opposed to another is a valid consideration.”
If you’re reading this then you know how complicated workers compensation can be. Insurance companies will do everything they can to limit the value of your claim. This means trying to avoid having to pay for medical services, even if your treating physician believes they’re necessary.
You don’t have to accept the denial. Contact Corey Pollard to fight back and to get your claim for in-home medical care approved. We’ll also help you negotiate a top-dollar workers comp settlement.
If you require in home medical care then you may qualify for Social Security Disability Insurance (SSDI) benefits. As a workers comp attorney and Virginia disability lawyer, Corey Pollard can help with that claim also.