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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 6-26-2018
2

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 
CHRISTIAN/GUIDEONE v. SMITH

Decision of the Court

3

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. 
CHRISTIAN/GUIDEONE v. SMITH

Decision of the Court

4

¶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 
CHRISTIAN/GUIDEONE v. SMITH

Decision of the Court

5

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. 
CHRISTIAN/GUIDEONE v. SMITH

Decision of the Court

6

¶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.

 

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.