No. 87-61

INTHE SUPREME COURTOF THE STATEOF MONTANA
1987

GARYA. LARSON, Claimant and Respondent,-vsSQUIRESHOPS, INC., Employer, and INDUSTRIAL INDEMNITY COMPANY,
DefendantandAppellant.

APPEAL FROM: TheWorkers' Compensation Court, TheHonorable TimothyReardon,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant:
Marra,Wenz,Johnson & Hopkins;David E. Bauer, Great Falls,Montana

For Respondent: Milodragovich, Dale & Dye; LonJ. Dale,Missoula, Montana

Submittedon Briefs: Aug. 13, 1987 Decided: September 15,1987

ClerkMr. Justice JohnConway Harrison delivered the Opinion of the Court.

This appeal arises froma final judgment enteredby 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 conformwith 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 thatGary is permanently totally disabled. It is agreed on all sides that Gary's injuries are serious. He continues to experience disabilitiesofmemory, 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 situationsand 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 thatdate,Gary's wife, Candice,has taken over theprimary care of Gary. The primary issue upon appeal is whether, under the workersv compensation laws ofthis 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 theWCC 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 cornpensableand instructed theparties to brief the issue. On November 4, 1985, the WCC entered its judgment on the issue of domiciliary care. Of primary significancewas the court's finding that Garyhas required twenty-four hour a day care since his release from the hospital. The court further found that Candicehad 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 carewas $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 careprovided by Candice sinceMarch 3, 1983,and would remain liable for all future care provided by Candice

so long as itwas 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 hoursper 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. IndustrialIndemnity 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 (hereinafterinsurer) contests the award of domiciliary care provided by candice. Gary (claimant)challenges the court's change of the starting date for compensabledomiciliary 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 limitationas to length of time or dollar amount, reasonable services by a physician or surgeon, reasonablehospital 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 adecisionof the WCC which recognized that under this statutedomiciliary care provided by amember of an injured employee's familymight be compensable as "such other treatment." Today, we reaffirm that decision. We note that this appears to be themajority 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 appointmentof apersonal 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 employerknowsof 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 describeswith a reasonable degree 

### of particularity the nature and extent of duties to be performed by the familymembers; (3) the services are performed under the direction of aphysician;

(4) the services rendered are of the type normally rendered by trained attendants and beyond the scope ofnormal household duties; and

(5) there is a means to determine with reasonable certainty the approximate value of the servicesperformed. 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 slightlymodified versionof 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 ofdomiciliary care had been raised, insurer requested, and ultimately obtained, permission to schedule an independent medical examinationat 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 examinationwas 

### 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 recommendationsshouldbe 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,claimantmay "improve"to thepointwheredomiciliary 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 adecisionwas 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 rehabilitativemedicine. She practices inMissoula, 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-fourhour aday supervision. Thus, we are faced with conflicting evidence on this issue. We note that since most of the critical evidence presented on this issuewas enteredby deposition, this Court is considered to be in asgood aposition as theWCC to judge the weight to be given such testimony. Shupertv. Anaconda Aluminum Co. (Mont. 1985), 696P.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 ofdomiciliary carewaswarranted in this case. We base this conclusion on several factors. First, this award was supported by the recommendations of Drs. Bertrand andWebber, the two doctorswho have had the longest association with claimant's case. While we recognize the excellence of the Seattle staff,3we 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 andWebber have each treated claimant since 1983 and have enjoyed the opportunity to witness claimant adapting to his everyday environment. In short, the record reveals thatDrs. Bertrand and Webber have had a much more extensive association with claimant's case. This factwas acknowledgedby the Seattle staff. While the members of the Seattle group may have had reservations about theneed 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 residentphysician on the Seattle staff, admitted that Dr. Bertrand is in a better position to evaluate claimant'scondition. Representative of the Seattle staff's conclusions on the necessity of domiciliary carewas 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 requirestwenty-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 andmost closelywith the claimant. Second,even if the Seattle staff's recommendationsare 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 recommendationswould 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,aswell 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 inpart 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 careaward is not supported by substantial credible evidence. While acknowledging the injuries suffered by claimant, insurer contends claimant has retained capabilities that belie aneed for twenty-four hour aday care. We cannot accept insurer's argument in full. Dr. Bertrand testified that claimant's physical abilities may make care even more difficult:

[wlhenyou considerhowphysically active Gary is and how physically well he appears, thathe iscapableofdoing 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 someoneelse. While it is agreed that claimantneed notbe 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 andpaid 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. EllerOutdoorAdvertising 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 caremanagement services nurse who supervises the CareManagement Department at Community Hospital in Missoula. In her position, Linda assesses disabled patients and determines the scope and breadth of services required by thesepatients. She appearsto be very well qualified to assess the need for, and cost of, domiciliary care and her testimony provides ample evidence in supportof theWCC'sdecision.

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 issuewas raised by the WCC is incorrect. We havehad 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 caremust 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 claimantrequiredwhile in thehospital 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 claimantwas released fromthehospital.We accordinglyhold thatCandice's domiciliary care should be compensated fromMarch 3, 1983. We remand this case to the WCC for an order consistent with this opinion.

Mr. Justice L. C. Gulbrandson,dissenting inpart:

I concurwith all of the foregoing opinionexcept the extensionof the Carlson opiniontonow impute constructive notice of theneed formedical services at claimant'sresidence.

Iwould not make the award fordomiciliary care retroactive,but would affirm theWorke

on this issue.