No. 87-61 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

GARY A. LARSON, 

Claimant and Respondent, 

-vsSQUIRE SHOPS, INC., 

Employer, 

and 

INDUSTRIAL INDEMNITY COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marra, Wenz, Johnson & Hopkins; David E. Bauer, 

Great Falls, Montana 

For Respondent: 

Milodragovich, Dale & Dye; Lon J. Dale, Missoula, 

Montana 

Submitted on Briefs: Aug. 13, 1987 

Decided: September 15, 1987 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal arises from a final judgment entered by the 

Workersv Compensation Court of the State of Montana. Both 

parties appeal an award of domiciliary care. We return this 

cause to the Workers' Compensation Court to conform with our 

opinion. 

This appeal concerns an award of domiciliary care 

issued by the Workersv Compensation Court (WCC) to the 

claimant, Gary Larson. Gary is a twenty-seven year old 

married male with two step children. He was injured in a 

February 1983 automobile accident while in the course and 

scope of his employment as an assistant manager for the 

Squire Shop, a Missoula retail clothing store. As a result 

of the accident, Gary suffered a traumatic blow to the head 

which, in conjunction with a resulting subdural hematoma, 

caused permanent brain inyiury. His resultant disabilities 

render Gary permanently disabled. Industrial Indemnity 

Company, workmen's compensation insurer for the Squire Shop, 

agrees that Gary is permanently totally disabled. 

It is agreed on all sides that Gary's injuries are 

serious. He continues to experience disabilities of memory, 

thinking, motivation and, at times, vision. Significantly, 

Gary also suffers emotional instability or difficulty in 

maintaining emotional control. Because of these 

disabilities, Gary has experienced difficulty in handling 

everyday situations and has required some supervision. 

Since his release from the hospital on March 3, 1983, 

Gary has resided with his family at their residence in 

Clinton, Montana. Since that date, Gary's wife, Candice, has 

taken over the primary care of Gary. The primary issue upon 

appeal is whether, under the workersv compensation laws of 
this state, Industrial Indemnity is obligated to pay for the 

services provided by Candice. For the sake of consistency, 

we will refer to Candice's services as domiciliary care. 

This case was first presented to the WCC in May 1985. 

Though this first hearing concerned issues unrelated to this 

appeal, it was at this juncture that the WCC raised the issue 

of domiciliary care. In its findings and conclusions dated 

August 22, 1985, the WCC noted that Candice's domiciliary 

care might be cornpensable and instructed the parties to brief 

the issue. 

On November 4, 1985, the WCC entered its judgment on 

the issue of domiciliary care. Of primary significance was 

the court's finding that Gary has required twenty-four hour a 

day care since his release from the hospital. The court 

further found that Candice had been providing this around the 

clock care and that under the laws of this state, Industrial 

Indemnity was obligated to pay for Candice's domiciliary 

care. Based on testimony, the WCC found that a reasonable 

rate of compensation for this care was $7.00 per hour. Thus, 

the WCC held that Industrial Indemnity was liable, at the 

rate of $7.00 per hour, twenty-four hours a day, for the 

domiciliary care provided by Candice since March 3, 1983, and 

would remain liable for all future care provided by Candice 

so long as it was required. Finally, the WCC found that to 

provide a respite for Candice, a personal care attendant 

should be appointed to care for Gary on the average of 28.74 

hours per week. Candice would care for Gary the remaining 

139.26 hours per week. 

Following rehearing, the WCC amended somewhat its 

judgment. Noting that the issue of domiciliary care had not 

been raised until August 22, 1985--the date of the first 

hearing--the court held that Industrial Indemnity should not 

be held liable for payment prior to that date. Industrial 
Indemnity therefore became liable for this care from the date 

the issue was first raised, rather than the date of Gary's 

release from the hospital. 

Both parties now appeal. Industrial Indemnity 

(hereinafter insurer) contests the award of domiciliary care 

provided by candice. Gary (claimant) challenges the court's 

change of the starting date for compensable domiciliary care. 

Montana's medical benefit provision under the Workers' 

Compensation Act is S 39-71-704, MCA, which states in part: 

(1) In addition to the compensation 

provided by this chapter and as an 

additional benefit separate and apart 

from compensation, the following shall be 

furnished: 

(a) After the happening of the injury, 

the insurer shall furnish, without 

limitation as to length of time or dollar 

amount, reasonable services by a 

physician or surgeon, reasonable hospital 

services and medicines when needed, and 

such other treatment as may be approved 

by the division for the injuries 

sustained. 

In Carlson v. Cain (Mont. 1985), 700 P.2d 607, 614-15, 

42 St.Rep. 695, 703-04, this Court affirmed a decision of the 

WCC which recognized that under this statute domiciliary care 

provided by a member of an injured employee's family might be 

compensable as "such other treatment." Today, we reaffirm 

that decision. We note that this appears to be the majority 

position, see 2 A. Larson, Workman's Compensation Law, 

S 61.13 (d) (2) (1986) , and believe it is correct as a matter 

of law. 

1 Insurer does not contest the appointment of a personal 

care attendant. 
In Carlson, we quoted with approval a five-step test 

used by the WCC to determine whether "services provided in 

the home are compensable. "2 Pursuant to this test, an 

insurer is liable for domiciliary care if: 

(1) The employer knows of the employee's 

need for medical services at home 

resulting from the industrial injury; 

(2) the preponderance of credible 

medical evidence demonstrates that home 

nursing care is necessary as a result of 

accident, and describes with a reasonable 

degree of particularity the nature and 

extent of duties to be performed by the 

family members; 

(3) the services are performed under the 

direction of a physician; 

(4) the services rendered are of the 

type normally rendered by trained 

attendants and beyond the scope of normal 

household duties; and 

(5) there is a means to determine with 

reasonable certainty the approximate 

value of the services performed. 

Carlson, 700 P.2d at 614. 

I 

Applying these factors, insurer contends that the WCC 

award of domiciliary care was (1) premature, (2) unsupported 

by substantial credible evidence, and (3) unreasonable. 

2 This test is a slightly modified version of the factors 

set forth in Warren Trucking v. Chandler (Va. 1981), 

277 S.E.2d 488, 493. 
Insurer initially argues that the award of domiciliary 

care was premature. After the issue of domiciliary care had 

been raised, insurer requested, and ultimately obtained, 

permission to schedule an independent medical examination at 

University Hospital in Seattle, Washington. During 

March-April 1986, the staff at the Department of 

Rehabilitation Medicine at University Hospital conducted a 

comprehensive, two-week examination of claimant. The stated 

purpose of that examination was to obtain a second opinion on 

the status of claimant in terms of his need for domiciliary 

care. 

The Seattle staff was unable to posit any precise 

opinion as to the amount of domiciliary care required by 

claimant. Rather, the Seattle group concluded that before 

any conclusive determination on this issue could be reached, 

two recommendations should be implemented: 

(1) Modification in the medicines given 

claimant; and 

(2) a comprehensive rehabilitation 

program (to be initiated after the 

medication modification had been 

completed). 

Insurer accordingly argues that based on the Seattle 

report, claimant may "improve" to the point where domiciliary 

care is perhaps even unnecessary. Thus, concludes the 

argument, any determination of domiciliary care cannot be 

reached until the Seattle group's recommendations have been 

attempted. Applying this argument to our Carlson test, 

insurer highlights the second factor and asserts that the 

preponderance of the credible medical evidence does not 

demonstrate the necessity of domiciliary care. Rather, the 

weight of the evidence demonstrates that such a decision was 

premature. 
Balanced against the conclusions of the Seattle staff 

are the recommendations of Drs. Susan Bertrand and Patricia 

Webber. Dr. Bertrand is a psychiatrist who specializes in 

rehabilitative medicine. She practices in Missoula, and has 

been involved in claimant's case since November 1983. Dr. 

Webber, also of Missoula, is a psychologist specializing in 

rehabilitative psychology and has treated claimant since 

March 1983. Both doctors testified that claimant requires 

twenty-four hour a day supervision. 

Thus, we are faced with conflicting evidence on this 

issue. We note that since most of the critical evidence 

presented on this issue was entered by deposition, this Court 

is considered to be in as good a position as the WCC to judge 

the weight to be given such testimony. Shupert v. Anaconda 

Aluminum Co. (Mont. 1985), 696 P.2d 436, 439, 42 St.Rep. 277, 

281-82. 

Our reading of the record persuades us that the 

preponderance of the credible medical evidence demonstrates 

that an award of domiciliary care was warranted in this case. 

We base this conclusion on several factors. 

First, this award was supported by the recommendations 

of Drs. Bertrand and Webber, the two doctors who have had the 

longest association with claimant's case. While we recognize 

the excellence of the Seattle staff,3 we must also recognize 

that those doctors examined claimant for only two weeks, 

albeit intensively, and conducted the examination in a 

controlled environment. 

3 In raising this point, we must point out that Dr. 

Bertrand enjoyed a three-year residency in physical 

medicine and rehabilitation at University Hospital. 
By contrast, Drs. Bertrand and Webber have each treated 

claimant since 1983 and have enjoyed the opportunity to 

witness claimant adapting to his everyday environment. In 

short, the record reveals that Drs. Bertrand and Webber have 

had a much more extensive association with claimant's case. 

This fact was acknowledged by the Seattle staff. While 

the members of the Seattle group may have had reservations 

about the need for domiciliary care, in the end they deferred 

to the opinions of Drs. Bertrand and Webber because of the 

latters' long-term relationship with claimant. Dr. David 

Shuster, claimant's resident physician on the Seattle staff, 

admitted that Dr. Bertrand is in a better position to 

evaluate claimant's condition. Representative of the Seattle 

staff's conclusions on the necessity of domiciliary care was 

this statement by Dr. Justice Lehmann, Chairman of the 

Department of Rehabilitation at University Hospital and 

attending physician to claimant during claimant's 

examination, when asked if claimant requires twenty-four hour 

a day care: 

No, I don' t have any opinion because I 

really don't know. I think it is highly 

unlikely that he needs twenty-four-houra-day care but I don1 t have any factual 

basis for that, that I can say he does 

need it, or he doesn't need it and how 

much he needs it. 

In essence, we find more persuasive the specific 

recommendations of the doctors who have worked the longest 

and most closely with the claimant. 

Second, even if the Seattle staff's recommendations are 

implemented, it is disputed whether the necessity of 

domiciliary care would be abated. Dr. Lehmann testified he 

could not predict the ultimate effect of the implementation 

of these recommendations. And while Dr. Vernon Neppe, 
neuropsychiatrist with the Seattle team, predicted very 

favorable results, Dr. Bertrand stated that even if 

successful, these recommendations would probably not change 

claimant's need for domiciliary care. Dr. Bertrand stated: 

I don't think that those drugs 

[recommended by the Seattle staff], if 

they were used and were used 

successfully, would affect the amount of 

domiciliary care he requires. After 

reviewing Dr. Neppe's deposition, as well 

as his report, those--and having 

conferred with one of our local 

psychiatrists who is very familiar with 

the use of those medications in persons 

with organic brain syndrome, those 

[drugs] are for control of his emotional 

outbursts, and if they were successful, 

that would make Gary's life more 

comfortable. However, Gary's other 

problems would continue to exist and 

those are problems with abstract 

reasoning, with short-term memory, 

because those are not--those don't have 

anything to do with the emotional system 

that Propranolol or the Tegretol, 

Carbamazepine, would affect. It would 

not affect his need for supervision. 

Finally, we must note that any benefit which might 

result from implementation of the Seattle team's 

recommendations would be offset, to some degree, by the 

detrimental effects of continued litigation. As the WCC 

noted, medical personnel involved with this case have 

repeatedly stressed that uncertainty, caused in part by this 

lengthy litigation, produces definite negative effects on 

claimant. 

In sum, for the reasons stated, we find the 

preponderance of the credible medical evidence demonstrates 

that domiciliary care is necessary as a result of the 

accident. 
Insurer next argues that this domiciliary care award is 

not supported by substantial credible evidence. While 

acknowledging the injuries suffered by claimant, insurer 

contends claimant has retained capabilities that belie a need 

for twenty-four hour a day care. 

We cannot accept insurer's argument in full. Dr. 

Bertrand testified that claimant's physical abilities may 

make care even more difficult: 

[wlhen you consider how physically active 

Gary is and how physically well he 

appears, that he is capable of doing lots 

of things, but not doing them in a safe 

or organized fashion. And he really 

requires someone else providing his 

overall thinking ability. He needs 

someone monitoring his level of 

tiredness, and to do it requires input 

from another individual to maintain him. 

Especially, with his emotional ability 

and his ability of not understanding 

situations he gets himself into trouble. 

He really requires looking after and that 

absorbs the time of another, and in this 

case, usually Candy. So that even though 

he's totally impaired, he's even more 

impaired when that means that he absorbs 

time and energy from someone else. 

While it is agreed that claimant need not be supervised 

every minute, the record supports the conclusion that during 

the day someone must constantly be available to him. Stated 

Dr. Bertrand: 

Not everyone who is supervised every 

minute needs intervention every minute. 

But it's the unpredictable nature of the 

need that demands that there be someone 

available to meet the need when it 

arises. 
As the WCC correctly noted, it is this constant 

availability that must be compensated. In Texas Employer 

Insurance Association v. Choate (Tex.App. 1982) , 644 S.W. 2d 

112, an insurer argued that a claimant's spouse should only 

be compensated for the actual time she spent caring for her 

husband. In rejecting that argument, that court stated: 

The more practical problem with the 

argument is that it ignores the realities 

of the situation. Mrs. Choate cannot set 

aside 40 minutes a day, take care of 

Choate and then go on to other things. 

She must be available to meet his need 

during the entire time he is at home and 

awake. As the company's own witness 

admitted, a third person hired to do what 

Mrs. Choate does could not be hired or 

compensated on the 40 minutes per day 

basis now advanced by the company; 

instead such a person would be hired by 

the day or the week and paid for the time 

during which he or she is available, not 

just the time spent actually helping 

Choate. 

Choate, 644 S.W.2d at 116. Accord, Standard Blasting & 

Coating v. Hayman (Fla.App. 1985), 476 So.2d 1385, 1387; 

Brown v. Eller Outdoor Advertising Company (Mich. App. 1982), 

314 N.W.2d 685, 688. We conclude there is substantial 

evidence to support the court's finding. 

C 

Finally, insurer asserts that the $7.00 per hour rate 

of compensation fixed by the WCC is unsupported by 

substantial credible evidence. We disagree. This rate was 

based upon the testimony of Linda Geiger, a care management 

services nurse who supervises the Care Management Department 

at Community Hospital in Missoula. In her position, Linda 

assesses disabled patients and determines the scope and 

breadth of services required by these patients. She appears 
to be very well qualified to assess the need for, and cost 

of, domiciliary care and her testimony provides ample 

evidence in support of the WCC's decision. 

 ina ally, claimant contends the lower court's 

determination that insurer is liable for this domiciliary 

care not from the date of claimant's release from the 

hospital but from the date this issue was raised by the WCC 

is incorrect. 

We have had difficulty with this issue. The first step 

of the Carlson test requires that the employer know of the 

employee's need for medical services at home. Some courts 

faced with this issue have imputed a type of constructive 

notice upon an employer, either because of the severity of 

the industrial injury or because a representative of the 

employer had knowledge that domiciliary care would be 

required. See Balsano v. Fischer Body Division, General 

Motors Corporation (Mo.App. 1972), 481 S.W.2d 536; Stephens 

v. Crane Trucking, Inc. (Mo. 1969), 446 S.W.2d 772. While 

these cases can be distinguished, we agree that an employer 

may be put on notice of the employee's need for medical 

services because of the severity of injury. Need for 

domiciliary care must be supported by medical evidence, and 

we find it is. 

We believe such is the situation in this case. Given 

the unquestioned severity of the injury, the degree of 

medical attention claimant required while in the hospital and 

the permanence of the resulting disabilities, we find that 

the employer had notice of claimant's need for home nursing 

services at the date claimant was released from the hospital. 
We accordingly hold that Candice's domiciliary care should be 

compensated from March 3, 1983. 

We remand this case to the WCC for an order consistent 

with this opinion. 

Mr. Justice L. C. Gulbrandson, dissenting in part: 

I concur with all of the foregoing opinion except the 

extension of the Carlson opinion to now impute constructive 

notice of the need for medical services at claimant's residence. 

I would not make the award for domiciliary care retroactive, but would affirm the Worke 

on this issue.