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Cumberland Hospital and Ace American Insurance Co. v. Ross

Court of Appeals of Virginia

October 22, 2019

CUMBERLAND HOSPITAL AND ACE AMERICAN INSURANCE COMPANY
v.
ANGELA ROSS

          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Present: Chief Judge Decker, Judges Petty and Huff Argued at Richmond, Virginia

          Joseph 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.

          OPINION

          WILLIAM G. PETTY, JUDGE

         Employer 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.

         I. BACKGROUND

         "Under 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).

         In 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 post-concussion syndrome.

         In June 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.[1] 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.

         From 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 providers.

         The 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.

         In 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 ...


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