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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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

A WARD A FFIRMED

COUNSEL

Lundmark
, Barberich
, La Mont & Slavin
, P

. C

. , Tucson By Javier A

. Puig Counsel for Petitioner s Employer and Carrier

Industrial Commission of Arizona
, Phoenix By Jason M. Porter Counsel for Respondent

, ICA FILED 6-26-20182

Keist , Thurston
, O’Brien
, P

. C

. , Glendale By Steven D. Keist C ounsel for Respondent Employ ee

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 hom e health care for 14 hours per day

. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The respondent employee (“ C laimant”), 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, C laimant sustained severe and permanent injuries when the vehicle he was traveling in was involved in a rollover accident.

¶3 C laimant filed a workers’ compensation claim, which wa s 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 o n both LEC and supportive care. The ALJ held three hearings
, and heard testimony from Claimant , his wife, hi s former employer, the owner of a home health care franchise, a labor market e xpert, and C laimant’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 compensati on to Claimant’s wife for the daily care she provides to Claimant

. GuideoneCHRISTIAN/GUIDEONE v. SMITH Decision of the Court

3 timely requested administrative review, and the ALJ suppl emented and affirmed the award. This timely appeal followed.

DISCUSSION

¶5 The issue on appeal is whether the evidence in t he record support s 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. Com m’ n of Ariz ., 2 20 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 upholdin g the ALJ’s award. Lovitch v. Indus. Comm’n of Ariz. , 202 Ariz. 102, 105 , ¶ 16 (App. 2002).

¶7 In this case, the initial s upportive care notice awarded Claimant supportive care in accordance with the recommendations of “Dr. Duhon, Dr. Gottlieb, [and] Dr. Ro wley.” 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 s hould be reassessed after six months to one year. ”

¶8 The evidence established that other than a brief 10

- day respite, C laimant’s wife has provided all of C laimant’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
, provide s wound care following his surgeries
, 1 washes him below the waist and helps him dress due to residual defi cits 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 C laimant’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 po int [C laimant] 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 reflect ing 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 [Cl aimant] 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 ac knowledges 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). Th ese include palliative care services that c an be performed by a home health aide suchCHRISTIAN/GUIDEONE v. SMITH Decision of the Court

5 as bathing, dressing, performing home exercise s , and monitoring the

c laimant’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 C laimant testified that given his colostomy and the wou n d

care needed for ongoing surgeries, he essentially needs someone available
to care for him 24 hours a day. He explained that his condition has continue d to deteriorate , requiring additional surgeries, and resulting in increased “total body impairment. ” C laimant’s wife confirmed she is almost always with him , and that hi s colostomy bag is problematic and has burst both during the day and in the middle of the night.

¶13 Based on th e evidence presented , we cannot say the ALJ erred in finding that 14 hours per day of home health care is reasonably required. C laimant’s permanent injuries are serious , extensive , and require a substantial amount of ongoing care.
¶14 G uideone 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 th is argument to the ALJ. See T.W.M. Custom Framing v. Indus. Co mm’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 ag ency 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 h er 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 th ough Guideone mentioned “the start date” in its request for review, it did not cite A.R.S. § 23

- 1062 .01 or any other l egal authority supporting the reimbursement limitation a rgument 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

- 10 62 .01 , G uideone has waived th e 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 petit ioner 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 ha ve not been paid.