THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Present: Chief Judge Decker, Judges Petty and Huff Argued at
F. Giordano (Matthew J Sheptuck; Semmes, Bowen & Semmes,
on brief), for appellants.
Michael J. Beste (Stephen T. Harper; Reinhardt/Harper/Davis,
PLC, on brief), for appellee.
WILLIAM G. PETTY, JUDGE
argues on appeal that the Workers' Compensation
Commission erred in declining to address the requirements
established in Warren Trucking Co. v. Chandler, 221
Va. 1108 (1981), before the Commission awarded claimant
compensation for home care provided by her spouse. We agree
and reverse the Commission's decision.
our standard of review, when we consider an appeal from the
commission's decision, we must view the evidence in the
light most favorable to the party who prevailed before the
commission." K & K Repairs & Const., Inc. v.
Endicott, 47 Va.App. 1, 6 (2005).
early 2012, while working as a registered nurse for
Cumberland Hospital and Ace American Insurance Company
(employer), Angela Ross sustained severe injuries, including
traumatic brain injury. The Commission entered several
awards, including a lifetime medical award for
2016, the treating physician recommended a life coach or home
health aide to assist Ross with activities of daily living
and to monitor safety concerns. In June 2017, the treating
physician recommended that the home health care be provided
eight to twelve hours per day, three to four times per week.
Later that year, the treating physician stated it was
medically necessary for Ross's safety and well-being
"that she is provided with a home health aide or family
member oversight" to help assist her with activities of
daily living and to monitor safety concerns twenty-four hours
a day, seven days a week.
September 2016 to October 2017, employer provided home health
care through an agency which provides home health care for
elderly and disabled people. Four different aides from the
agency provided care for Ross during this period. In August
2017, based on the treating physician's note that Ross
should be "provided with a home health aide or family
member oversight," Ross filed a claim with the
Commission requesting that the home health care be provided
by her spouse. The agency hired Ross's spouse in October
2017 to care for Ross but fired him three weeks later because
he did not provide timely activity notes on Ross's care
as required by the employment agreement. After that point,
Ross's spouse and daughter were Ross's only home care
treating physician's notes from November 2017 listed
caregiving difficulties as an issue for Ross. The notes
included complaints made by Ross and her spouse about the
aides provided by the agency, indicated the treating
physician "discussed the emotional toll of being alone
during the day," and stated Ross "needs [a]
personal care attendant." The notes also indicated the
treating physician discussed ways to get Ross's spouse
approved as the caregiver. Based on the information given by
Ross and her spouse, the treating physician opined that
Ross's experience with the prior caregivers "was
detrimental to her health and recovery in that it increased
her anxiety and depression. Having her husband as her primary
caregiver would greatly decrease the chance of that occurring
in the future." By the time of Ross's January 2018
visit with her treating physician, Ross's spouse had
resigned from his job and was caring for Ross.
addressing Ross's claim for compensation for care
provided by her spouse, the Commission acknowledged
employer's argument that the Commission had to apply the
holding in Warren Trucking Co. v. Chandler, 221 Va.
1108 (1981), before it could award compensation for spousal
care. Although the Commission enumerated the four
requirements set out in Chandler, which it referred
to as the "Chandler test," it did not
address whether those requirements had all been met. The
Commission reasoned that the Chandler test was only
applicable in determining whether home health care was
medically necessary. The Commission found "the evidence
and the parties' stipulations showed home health care was
reasonable and necessary treatment causally related to the
traumatic brain injury and associated conditions"
suffered by Ross. It also found the evidence proved
Ross's spouse was ...