christian/guideone v. Smith

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CHRISTIAN & MISSIONARY ALLIANCE, Petitioner Employer,
GUIDEONE MUTUAL INSURANCE COMPANY, Petitioner Carrier,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
CRAIG SMITH, Respondent Employee.
No. 1 CA-IC 17-0045
FILED 6-26-2018
Special Action - Industrial Commission
ICA Claim No. 20093-210218
Carrier Claim No. GO-09-100024
The Honorable Layna Taylor, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Lundmark, Barberich, La Mont & Slavin, P.C., Tucson
By Javier A. Puig
Counsel for Petitioners Employer and Carrier
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent, ICA
Keist, Thurston, O’Brien, P.C., Glendale
By Steven D. Keist
Counsel for Respondent Employee
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge David D. Weinzweig joined.
B R O W N, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for supportive care
benefits. The issue presented is whether the evidence reasonably supports
the administrative law judge’s (“ALJ”) award of home health care for 14
hours per day. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The respondent employee (“Claimant”), a minister and
evangelist, conducted a traveling ministry. He and his wife worked as a
missionary team for the petitioner employer, Christian & Missionary
Alliance. In June 2009, Claimant sustained severe and permanent injuries
when the vehicle he was traveling in was involved in a rollover accident.
¶3 Claimant filed a workers’ compensation claim, which was
accepted for benefits. He received extensive medical and surgical treatment.
His claim was eventually closed with an unscheduled permanent
impairment and an award of supportive care benefits. The ICA then
entered its findings and award for a permanent total loss of earning
capacity (“LEC”).
¶4 The petitioner carrier, Guideone Mutual Insurance Company
(“Guideone”), timely requested an ICA hearing on both LEC and
supportive care. The ALJ held three hearings, and heard testimony from
Claimant, his wife, his former employer, the owner of a home health care
franchise, a labor market expert, and Claimant’s supportive care doctor.
The ALJ then entered an award for a permanent total LEC and supportive
care that included home health care in the form of compensation to
Claimant’s wife for the daily care she provides to Claimant. Guideone
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timely requested administrative review, and the ALJ supplemented and
affirmed the award. This timely appeal followed.
DISCUSSION
¶5 The issue on appeal is whether the evidence in the record
supports the ALJ’s award of 14 hours per day of home health care. An
industrially-injured claimant is entitled to receive compensation for all
“medical, surgical and hospital benefits or other treatment, nursing, [etc.]
reasonably required at the time of the injury, and during the period of
disability.” See A.R.S. § 23-1062(A). “Whether a particular type of
treatment is reasonably required is a medical question and requires expert
medical testimony.” Patches v. Indus. Comm’n of Ariz., 220 Ariz. 179, 181,
¶ 6, (App. 2009). It is the ALJ’s duty to hear medical testimony on the
necessity of the care, resolve any conflicts, and draw all warranted
inferences. See Malinski v. Indus. Comm’n, 103 Ariz. 213, 217 (1968).
¶6 In reviewing findings and awards of the ICA, we defer to the
ALJ’s factual findings but review questions of law de novo. Young v. Indus.
Comm’n of Ariz., 204 Ariz. 267, 270, ¶ 14 (App. 2003). We consider the
evidence in a light most favorable to upholding the ALJ’s award. Lovitch v.
Indus. Comm’n of Ariz., 202 Ariz. 102, 105, ¶ 16 (App. 2002).
¶7 In this case, the initial supportive care notice awarded
Claimant supportive care in accordance with the recommendations of “Dr.
Duhon, Dr. Gottlieb, [and] Dr. Rowley.” Only Dr. Rowley addressed home
health care. On June 28, 2013, he stated that “[f]or the next six months
[Claimant] will need home health care on a daily basis in the form of a home
health aide to assist with dressing, bathing and self care. This should be
reassessed after six months to one year.”
¶8 The evidence established that other than a brief 10-day
respite, Claimant’s wife has provided all of Claimant’s care, 24 hours a day,
seven days a week, since his release from the hospital in late 2009. She
explained that in addition to her normal household duties of cooking,
cleaning and laundry, she cares for the Claimant’s colostomy bag, provides
wound care following his surgeries,1 washes him below the waist and helps
him dress due to residual deficits from his pelvic fracture, and spots him
for transfers.
1 Claimant testified he has undergone 34 surgeries and outpatient
procedures for his injuries sustained in the motor vehicle accident.
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¶9 After Claimant’s claim was reopened for additional surgery
and reclosed, a second notice of supportive care was issued based on the
recommendations of Dr. Dohring and Dr. Rowley. Dr. Dohring reported:
I feel at this point [Claimant] has reached maximum medical
improvement. We will close his case today and return him
back to his previously recommended supportive care status
for physical therapy, home healthcare and all other specialties
. . . . Refer to supportive care recommendations in
Dr. Rowley’s dictation of 6/28/13.
¶10 Following the evidentiary hearings, the ALJ explained its
home health care ruling in part as follows:
13. With respect to the attendant care issue, the record
establishes that the carrier provided home health care for a
period of time after the industrial injury. Though the need for
home health care was to be reevaluated at the end of six to
twelve months, the record does not contain any document
reflecting that reevaluation. Nevertheless, [Claimant’s] wife
has continued to provide wound care and care related to the
colostomy, just as the home health care provider had done in
the past at the carrier’s expense. There is no evidence in the
record that [Claimant] needs (or has needed in recent years)
24 hour per day care, but the record does establish that
[Claimant] has required and continues to require certain care
services which have at times in the past been provided at
carrier expense through agencies, but have primarily been
provided by [Claimant’s] wife.
The ALJ then concluded it was appropriate to compensate Claimant’s Wife
at the rate of $11.56 per hour, but did not specify the number of hours per
day. Addressing Guideone’s request for review, the ALJ explained that
“evidence in the record supports a finding that payment to [Claimant’s
Wife] for fourteen (14) hours per day is appropriate for the services
provided.”
¶11 Guideone acknowledges that “it is clear that care is indicated
as a result of the industrial injury,” but asserts that there is no basis in the
record to support an award of 14 hours per day. In Carbajal v. Indus.
Comm’n, 223 Ariz. 1, 1, 5, ¶ 17 (2009), the Arizona Supreme Court discussed
the nature of services that fall within A.R.S. § 23-1062(A). These include
palliative care services that can be performed by a home health aide such
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as bathing, dressing, performing home exercises, and monitoring the
claimant’s activities. Id. at 4-5, ¶¶ 16-17. See, e.g., 8 Arthur Larson and Lex
K. Larson, Larson’s Workers’ Compensation Law § 94.04 at 94-66 (2017) (care
to manage the claimant’s symptoms or mitigate the effects of the injury).
But the statute also includes care of a medical nature, such as colostomy
and wound care, that be performed by a home health aide. Claimant’s wife
testified that the hospital trained her to provide this care.
¶12 Claimant testified that given his colostomy and the wound
care needed for ongoing surgeries, he essentially needs someone available
to care for him 24 hours a day. He explained that his condition has
continued to deteriorate, requiring additional surgeries, and resulting in
increased “total body impairment.” Claimant’s wife confirmed she is
almost always with him, and that his colostomy bag is problematic and has
burst both during the day and in the middle of the night.
¶13 Based on the evidence presented, we cannot say the ALJ erred
in finding that 14 hours per day of home health care is reasonably required.
Claimant’s permanent injuries are serious, extensive, and require a
substantial amount of ongoing care.
¶14 Guideone also argues its payment for past home health care
should not exceed two years pursuant to A.R.S. § 23-1062.01, which states
that a “health care provider” must submit reimbursement requests within
that time frame. However, Guideone does not direct us to any location in
the record where it presented this argument to the ALJ. See T.W.M. Custom
Framing v. Indus. Comm’n of Ariz., 198 Ariz. 41, 44, ¶ 4 (App. 2000) (“It is true
that this Court generally will not consider on appeal issues not raised before
the [ICA]. This rule stems in part from the requirement that a party must
develop its factual record before the agency and give the ALJ the
opportunity to correct any legal error.”).
¶15 In the midst of the hearing process, by letter dated June 15,
2016, Claimant explained to the ALJ and opposing counsel that he was
seeking “just and fair compensation” for his wife “in her role as my chief
caregiver since my release from in-patient care on December 4, 2009.”
Despite that request, nothing in the record indicates that Guideone objected
to that date or proposed an alternative date for commencing
reimbursement. And even though Guideone mentioned “the start date” in
its request for review, it did not cite A.R.S. § 23-1062.01 or any other legal
authority supporting the reimbursement limitation argument it now raises
on appeal.
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¶16 Moreover, Guideone did not request that the ALJ change or
vacate the start date; instead, it merely asked the ALJ to “review” it. Thus,
assuming, without deciding, that Claimant’s wife would be considered a
“health care provider” subject to A.R.S. § 23-1062.01, Guideone has waived
the argument that her compensation should have been limited to two
years.2 See Stephens v. Indus. Comm’n, 114 Ariz. 92, 94 (App. 1977) (“This
court will not consider on review an issue not raised before the [ICA] where
the petitioner has had an opportunity to do so.”).
CONCLUSION
¶17 For the foregoing reasons, we affirm the award.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 We note that A.R.S. § 23-1061(J) provides that a claimant may request
an investigation by the ICA into the payment of benefits, which Claimant
believes are owed but have not been paid.
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