Understanding Attendant Care Exposure In Virginia

A foundational principle of the Virginia Workers’ Compensation Act is that, as long as necessary after an accident, “the employer shall furnish or cause to be furnished, free of charge to the injured employee, a physician and other necessary medical attention.” (Va. Code Section 65.2-603.) In cases where the injured employee sustains catastrophic injuries, other medical attention may include the employer and carrier being held responsible for 24-hour attendant care. In rare cases, the carrier may even be held responsible for compensating a member of the injured worker’s family for providing that attendant care.

In a recent Opinion, the Commission and Court of Appeals of Virginia engaged in an in-depth analysis of what situations could justify compensating a family member for attendant care. Ross v. Cumberland Hospital, JCN VA02000015934 (Apr. 22, 2020). In reaching the decision to award the claimant’s spouse compensation for attendant care, the Commission relied upon the legal standard set forth by the Supreme Court of Virginia in Warren Trucking v. Chandler, 221 Va. 1108 (1981).

Under the Chandler test, the injured worker must establish that each of the following criteria has been met if they want the carrier to pay a family member for attendant care:

  1. The employer knows of the employee’s need for medical attention at home as a result of the industrial accident;
  2. The family member’s medical attention is performed under the direction and control of a physician, that is, a physician must state home nursing care is necessary as the result of the accident and must describe with a reasonable degree of particularity the nature and extent of duties to be performed by the spouse;
  3. The care rendered by the family member must be of the type usually rendered only by trained attendants and beyond the scope of normal household duties; and
  4. There is a means to determine with proper certainty the reasonable value of the services perform by the spouse.

In Ross, the parties agreed that the employee sustained a traumatic brain injury that required ongoing attendant care. The primary issue in dispute was whether the care rendered by the claimant’s spouse was “of the type usually rendered only by trained attendants and beyond the scope of normal household duties.”

The Commission considered medical evidence that the injured worker needed attendant care 24 hours per day, 7 days per week for her safety. The claimant’s spouse testified that the injured worker needed reminders to take her 11 daily prescription medications. In addition, the claimant’s spouse testified that, in the absence of care, the claimant had burned herself, cut herself, left the oven on, and fallen due to her cognitive limitations.

The Majority held that the claimant met her burden of establishing that her spouse’s care went beyond the scope of normal household duties. The Commission wrote that “home health care, consisting of monitoring for health and safety, is usually rendered only by trained attendants.” In addition, it noted that young children require 24-hour monitoring for safety, but adults do not, so 24-hour monitoring for an adult is beyond the realm of normal household duties. In a dissenting Opinion, Commissioner Rappaport pointed out that simply monitoring the injured worker’s safety and providing her with transportation assistance is not “medical care” usually provided by trained medical professionals.

As it stands, Ross appears to broaden the definition of attendant care that would allow a family member to be paid by the carrier for being the injured worker’s caregiver. The ruling could have a significant impact on the employer and carrier’s exposure in catastrophic claims. If the injured worker’s family member also receives compensation, (a) it becomes almost impossible to evaluate whether the injured worker is receiving appropriate medical care and (b) the family member has a vested interest in maintaining the ongoing care.

If you have the misfortune of handling a catastrophic claim where the patient requires attendant care, keep in mind that the injured worker still has to establish each of the Chandler factors. If even one of the factors is disproven by a preponderance of the evidence, the family member will not be entitled to compensation.

In defending similar claims, we recommend:

  1. Compiling evidence that the family member’s duties are limited to normal household chores like bathing, shaving, feeding, assistance in walking, driving and administering routine medications.
  2. Establishing that the injured worker’s injuries and diagnoses do not require 24-hour monitoring because of a heightened safety risk.

Approaching the treating physician to obtain opinions about the extent of required medical care is often advisable in these cases. When it appears that the nature of the injury and diagnoses does not justify the level of care recommended by the treating physician, an independent medical evaluation (IME) may be helpful as well.

Link to Ross v. Cumberland

Posted In: E-Blast