Thomas Judge v. R&T Construction Company

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Duff
Argued at Alexandria, Virginia
THOMAS JUDGE
v. Record No. 1515-94-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
R & T CONSTRUCTION COMPANY AND MAY 2, 1995
MARYLAND CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (Lewis, Trichilo, Bancroft, McGavin &
Horvath, P.C., on briefs), for appellant.
Charles P. Monroe (Frank R. Kearney; Mell, Brownell & Baker,
on brief), for appellees.
Thomas Judge (claimant) appeals the commission's decision:
(1) denying his wife, Patricia Judge (Mrs. Judge), additional
reimbursement for nursing services performed from 1987 to 1993,
and (2) refusing to increase Mrs. Judge's hourly wage. He argues
that: (1) Mrs. Judge deserves additional wages for time spent
assisting the nurses from Western Medical Services (Western) and
picking up claimant's prescriptions, and (2) her hourly wage
should be increased from nine dollars to fifteen dollars. We
affirm the commission.
The facts are not in dispute. On October 28, 1981, claimant
was involved in a work-related accident that rendered him a
respirator-dependent quadriplegic. Maryland Casualty Company
(insurer), insurance carrier of R & T Construction Company
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(employer), delegated the provision of in-home nursing care to
Western. This Court affirmed the commission's decision requiring
employer to provide twenty-four hour home nursing care and
allowing Mrs. Judge to be reimbursed for care provided in
emergency situations. Judge v. Whitmer, 6 Va. App. 152, 155-56,
366 S.E.2d 713, 715-16 (1988).
Claimant seeks reimbursement of $41,432.85 for services
provided by Mrs. Judge during the period August 1, 1987 to
February 28, 1993 and requests an increase in her hourly wage
from $9 to $15 for services after January 1, 1993. Insurer paid
Mrs. Judge for services provided when a Western nurse was
unavailable during the period in question.
Beginning in December 1991, Mrs. Judge reviewed the nurses'
notes and her own time sheets and reconstructed the additional
time she spent assisting Western nurses and picking up claimant's
prescriptions. The summaries of additional hours prepared by
Mrs. Judge merely list hours worked and do not specify the
services performed. Claimant's doctor, Dr. John E. Toerge,
reviewed Mrs. Judge's reimbursement claim and verified the
medical necessity of her services. Dr. Toerge also testified
that two people were needed for certain transfers and that he
instructed Mrs. Judge to check claimant's skin condition on a
daily basis. Insurer offered to have the prescriptions mailed
directly to claimant's home, and that alternative was rejected.
Insurer's representative, Erica Mortland, testified that
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insurer pays Western $37.50 per hour for RNs and $30.75 per hour
for LPNs. Dr. Toerge testified that the pay range for attendant
care in an urban setting was $10 to $20 per hour. Mrs. Judge is
not a trained nurse but has received some specialized training
regarding her husband's care.
The commission found that: (1) insurer properly reimbursed
Mrs. Judge "for time she attended her husband when regularly
scheduled nurses were unavailable"; (2) Mrs. Judge's
documentation of her additional services was not persuasive; (3)
insurer was not responsible for her mileage and time spent
picking up claimant's prescriptions; (4) Mrs. Judge failed to
show an increase in her hourly wage was justified; and (5) Mrs.
Judge's wages should not be based on the wages of either RNs or
LPNs.
On appeal, "we review the evidence in the light most
favorable to the prevailing party." R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"Factual findings of the . . . [c]ommission will be upheld on
appeal if supported by credible evidence." James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
We cannot say, as a matter of law, that the commission erred
in denying additional reimbursement and a wage increase.
Credible evidence supports the commission's findings that: (1)
Mrs. Judge was not entitled to any additional reimbursement, and
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(2) Mrs. Judge's wages should not be increased to fifteen dollars
per hour. Mrs. Judge's summaries of additional hours claimed are
speculative and do not indicate which services were performed and
how long each service took. Dr. Toerge asked Mrs. Judge to check
claimant's skin condition and stated that two people were
necessary for certain transfers, but the record is unclear
concerning how much of Mrs. Judge's time was devoted to these
services. Insurer has already reimbursed Mrs. Judge for her
services provided when Western personnel were not available. We
also affirm the commission's denial of reimbursement for picking
up prescriptions because the time and cost incurred could have
been avoided by mailing the medications.
Additionally, the commission's refusal to increase Mrs.
Judge's hourly wage is supported by credible evidence. This
Court held that a spouse may receive reimbursement for necessary
medical attention only if "there is a means to determine with
proper certainty the reasonable value of the services performed
by the spouse." Warren Trucking Co., Inc. v. Chandler, 221 Va.
1108, 1116, 277 S.E.2d 488, 493 (1981). Mrs. Judge failed to
establish the "reasonable value of the services performed," and
information about reasonable wages for a trained nurse was
irrelevant in determining the value of an untrained spouse's
services.
Affirmed.
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