Kenbridge Const. Co. v. Charles E. Poole ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
KENBRIDGE CONSTRUCTION COMPANY, INC.
AND UNITED CONTRACTORS OF VIRGINIA
GROUP SELF-INSURANCE OPINION BY
JUDGE JAMES W. BENTON, JR.
v. Record No. 3101-96-2 JUNE 24, 1997
CHARLES EDWARD POOLE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Bradford C. Jacob (William C. Walker; Taylor &
Walker, P.C., on briefs), for appellants.
Brian J. Cusce for appellee.
Kenbridge Construction Company, Inc. appeals from a ruling
of the Workers' Compensation Commission granting Charles Edward
Poole compensation for medical services provided to him by his
wife. Kenbridge argues that the commission erred in ruling that
the services provided by Poole's wife are compensable under the
Workers' Compensation Act. For the reasons that follow, we
affirm the commission's ruling.
I.
Charles Edward Poole fractured his skull on July 20, 1994
while working for Kenbridge. As a result, Poole suffers from
cognitive brain damage and is blind in one eye. The commission
approved the parties' memorandum of agreement and awarded Poole
$466 per week in temporary total disability benefits for lost
wages and medical benefits for as long as necessary.
A deputy commissioner held a hearing on Poole's claim for
payment for the services provided by Poole's wife between 10:00
p.m. and 8:00 a.m. every day.
The evidence at that hearing proved that Poole requires
continuous care. Aides give Poole assistance during the day.
Poole's wife is the only person who cares for Poole during the
nighttime.
Dr. Nathan D. Zasler, Poole's brain rehabilitation
specialist, reported that Poole's wife "has been providing and
will need to continue to provide medically necessary attention in
the home on a 24-hour basis due to . . . Poole's condition." He
also wrote that Poole's wife provided care that "has been under
[his] direction." Dr. Zasler stated that her care "involves the
type of care that would be rendered by trained attendants in most
other settings."
Dr. Gary R. Zeevi, Poole's cardiologist, reported that
Poole's wife provides "in-home medical attention which would
otherwise require in-office care." He added that she "monitor[s]
his cardiac condition, heart rates[,] and reaction to medications
in a fashion usually reserved for people with nursing degrees."
Dr. E.D. Baugh, Poole's primary physician, reported that Poole's
wife keeps a daily record of Poole's medications, blood pressure,
and pulse rate. Poole's pharmacist stated that Poole's wife "has
become very knowledgeable about his drugs."
Poole's wife testified that after Poole's accident, Poole's
doctor told her that she "must learn how to regulate his heart--
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to check his heart every morning." After she was told that she
"must learn the seizure procedures," she sought and received
"train[ing] . . . for [Poole's] particular needs." Specifically,
Poole's wife has been trained to administer enemas and
suppositories, take stool samples, take blood pressure readings,
and monitor heart rates. An experienced nurse testified that she
trained Poole's wife to perform most of these tasks. In
addition, Poole's wife enrolled in a class to learn
cardiopulmonary resuscitation techniques (CPR).
Poole's wife has performed some physical therapy for her
husband. In addition, she monitors all of his medications and
prepares his medication sheets. Although she remains in close
contact with Poole's doctors, one doctor has told her to use her
own discretion when monitoring Poole's medication. Poole's wife
testified that she gets up from four to fifteen times each night
to care for Poole.
In awarding payment for Poole's wife's services, the
commission found the following:
[Poole's wife] has clearly been trained
to provide services which qualify as "medical
attention." She has been trained in CPR,
physical therapy, seizure control, the
monitoring of vital functions, bowel and
bladder programs, and to a limited extent,
the administration of medication. . . . The
necessity of her services has been certified
by Drs. Zasler, Zeevi, and Baugh.
The commission ruled that Poole's wife's services should be
compensated at the rate of $7 per hour, three hours per night,
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seven days per week.
II.
"When the issue is the sufficiency of the evidence and there
is no conflict in the evidence, the issue is purely a question of
law. . . . '[W]e must . . . determine if the correct legal
conclusion has been reached.'" Cibula v. Allied Fibers &
Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992)
(citation omitted), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).
The parties agree that, "after an accident, the employer shall
furnish or cause to be furnished . . . necessary medical
attention." Code § 65.2-603(A)(1). Kenbridge argues, however,
that the facts of this case do not meet the requirements of Code
§ 65.2-603 as a matter of law because the services Poole's wife
provides do not constitute "medical attention."
The rule is well settled that nursing services, whether
provided at a medical facility or in a patient's home, "are
included among the medical benefits that an employer and insurer
must furnish, provided the services are necessary and
authorized." Warren Trucking Co. v. Chandler, 221 Va. 1108,
1115, 277 S.E.2d 488, 492-93 (1981). In applying the rule, the
following factors are relevant:
[T]he employer must pay for the care when it
is 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
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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.
Id. at 1116, 277 S.E.2d at 493.
In Chandler, the Supreme Court held that the services
provided by Chandler's wife were not of the kind normally
provided by a trained medical care provider. See id. at 1118,
277 S.E.2d at 494. The evidence proved that Chandler's wife's
"care consisted of bathing, shaving, feeding, assistance in
walking, help with braces, aid upon falling, driving[,] and
administering routine medication." Id.
The evidence in this case proved that the services provided
by Poole's wife are significantly more extensive. Poole's wife
is required to monitor Poole's heart rate and blood pressure,
give him suppositories and enemas, monitor his medications and
any side effects, and remain in close contact with his doctors.
When Poole has seizures, she must determine the cause and make
judgments about the appropriate emergency care. Indeed, Dr.
Zasler wrote the following in his report to the commission:
This care involves medication administration
and monitoring for side-effects, monitoring
for seizures and providing appropriate
emergency care when seizures occur,
monitoring for cardiovascular problems
related to . . . Poole's post-injury cardiac
arrhythmia, [and] supervising and
implementing appropriate bowel and bladder
programs . . . .
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Both Dr. Zasler and Dr. Zeevi opined that the care provided
by Poole's wife is usually performed by trained attendants or
nurses. Moreover, the evidence proved that Poole's wife has
received extensive training at hospitals and from a registered
nurse. She provides these services to Poole at the direction of
Poole's physicians. Based on this evidence, we hold that the
services provided by Poole's wife are "of the type usually
rendered only by trained attendants and beyond the scope of
normal household duties." Id. at 1116, 277 S.E.2d at 493.
Accordingly, the commission did not err in awarding Poole
benefits for the services provided by his wife.
Contrary to Poole's assertion, however, we hold that the
commission did not err in awarding compensation for only three
hours per night. No evidence supports a finding that Poole's
wife remains awake and monitors Poole constantly from 10:00 p.m.
until 8:00 a.m. Indeed, Poole's wife testified that Poole wakes
her during the night. Thus, the evidence supports a finding that
Poole's wife does not render services for the full ten hours per
night. This evidence and the reasonable inferences that flow
from the evidence support the commission's award of $7 per hour
for three hours per night.
Accordingly, we affirm the award.
Affirmed.
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