|
Court: Insurers Need Not Pay For Family Attendants.
In a new ruling, the appellate court rejected arguments by Bagdad resident Sabino Carbajal that his wife should be paid
for the "attendant care" she provides when he does not have a nurse at his house. Carbajal, who is partially paralyzed
as a result of an industrial accident, said there are things he cannot do for himself that requires the help of his wife.
But the plea was rebuffed by Judge Patricia Orozco, who wrote the majority opinion.
In the first decision of its kind in Arizona, Orozco said the court understands the purpose of the Workers' Compensation
Act and its own obligations in interpreting that law.
"We have been mindful of our duty to liberally construe the Act to effect its purpose of having industry bear its share of the burden of human injury as a cost of doing business," she wrote. "But a liberal construction is not synonymous with a generous interpretation."
But Judge Donn Kessler, in his dissent, said his colleagues were missing the point.
He said the uncontroverted testimony is that Carbajal's wife, Celia, is responsible for everything from dressing him and
cutting up his food to waking up in the middle of the night to take him to the bathroom and cleaning his urinal.
"All of these duties were medically necessary because the husband cannot be left alone unsupervised," Kessler wrote. And
he noted that Celia was paid by the Workers' Compensation carrier to be trained to do some chores - at least how to
operate her husband's oxygen machine - in the hours an attendant is not there, "and it is undisputed that the insurer
has and would have to pay for such care if it were not provided by a spouse."
That, Kessler said, makes the services provided by Celia compensable under the law as "other treatment" her husband
requires and not simply a duty she should be expected to provide, without compensation, as his wife.
Court records show that Carbajal, who had been an employee of Phelps Dodge, suffered head and spinal injuries in 1999.
The right half of his body is paralyzed, and he has cognitive problems, though he can inform people of his needs.
A doctor testified that he cannot live alone and requires round-the-clock supervision because he is at risk of falling
if he tries to get up and stand. The doctor also said he cannot dress or bathe himself and someone needs to help him to
the bathroom in the middle of the night.
The company's insurance carrier is paying for an attendant between eight and 10 hours a day.
Orozco said the carrier is responsible for providing medical care and the services that only trained attendants can offer.
And the judge said even Carbajal's wife said the care he requires, beyond what the paid attendants provide, could be
rendered by a family member and not a health-care provider.
Kessler said the majority is ignoring some facts, starting with the point that Celia quit her full-time job to provide
care for her husband. He noted that she testified her responsibilities now are more like taking care of a child.
Beyond that, Kessler said, if Carbajal had not been married, the insurance carrier would have to pay someone to provide
the care for the balance of the hours that attendants are not now available.
"Taken to its logical conclusion, the holding today will permit Workers' Compensation carriers to deny paid attendant
care to claimants on the theory that such paid care is not necessary because it could and should be performed by the
claimant's spouse as part of her spousal duties," Kessler wrote.
|
PHOENIX - Workers' Compensation insurance doesn't have to reimburse your spouse for special care he or she is providing,
the Arizona Court of Appeals has ruled.