NewsArizona Court of Appeals Division One Holds That Care Provided By A Spouse To An Injured Claimant In the Marital Home, Where Such Care Does Not Involve “Medical” Services or “Skilled” Care, Is Not Compensable “Other Treatment” Under Worker’s Compensation Statute.

The Claimant, Sabino Carbajal, suffered severe head and spinal injuries in an industrial accident in 1999.  The injuries impaired his cognitive abilities and caused hemiparesis, and paralysis affecting only one side of the body.  The carrier found Carbajal’s injuries compensable and accepted his claims for benefits.  Carbajal received many benefits, including loss of earning capacity entitlement, a wheelchair-accessible van, special modifications to his home, and attendant care services seven days a week for eight to ten hours a day.  During certain hours, including the night-time hours, no attendant is present and Carbajal’s Wife provides care for Carbajal. 

In 2006, Carbajal sought retroactive compensation for the care rendered by Wife during those hours no attendant care was provided.  The Administrative Law Judge (ALJ) held two days of hearings.  Testimony at the hearing demonstrated that the care provided by Wife includes feeding Carbajal, administering his medication, cleaning him when he has urinated or defecated on himself, checking his oxygen levels at night, and taking him to the bathroom at night.  Carbajal’s treating physician, Dr. Porter, and the registered nurse who developed Carbajal’s care plan along with Dr. Porter testified at the hearing.  Dr. Porter testified that although Carbajal cannot live alone, he does not require “skilled [care at all times],” and that activities such as helping him to the bathroom or feeding him did not require a skilled caregiver, but “just an attendant of sorts.”  The ALJ found that Wife was not entitled to compensation for the care she provided.  He reasoned that the care was not of the type rendered by a trained attendant, but rather akin to the “day-to-day duties assumed by a spouse in accord with the marriage commitment.” 

Carbajal sought special action relief and the Court of Appeals took jurisdiction.  In a 2-1 decision, Division One affirmed the ALJ’s finding.  The statute at issue provides that “every injured employee shall receive medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches or other apparatus, . . . reasonably required . . .  during the period of disability.”  A.R.S. § 23-1062(A).  Interpreting the phrase “other treatment,” the majority first noted that many jurisdictions have abandoned the view that services provided by a spouse are simply those he or she is “bound to do” as a member of family and therefore not compensable.  Courts have considered a number of factors in determining whether spousal care is compensable, including whether the services are those typically performed by licensed health practitioners, whether the services were performed under medical direction, and whether the claimant needs continuous care.   The majority then went on to apply the rule of ejusdem generis, finding that the general phrase “other treatment” follows “a list of specifics” and therefore should be interpreted to include only items of the same type as those listed – namely, services “of the ‘medical’ type and not those which would normally be rendered by a spouse during marriage.”  Because Wife’s services, in the majority’s view, were not “medical treatment” or services typically provided by a “skilled” attendant, those service were not compensable as “other treatment.”

In a detailed dissent, Judge Kessler reviewed the record below and disagreed with the majority’s characterization of certain facts.  He found, among other differences, that Wife had received training (for which the carrier paid) on how to care for Carbajal, and that she quit her full-time job in order to care for him.  Judge Kessler noted that the term “other treatment” is plain and unambiguous, and thus the majority erred in resorting to principles of statutory construction.  Noting that the majority of modern courts find the kind of care provided by Wife compensable, that Wife’s care was indeed “trained care,” and that the majority’s scheme is “contrary to the public policy underlying the worker’s compensation scheme,” Judge Kessler would have found Wife’s services compensable as “other treatment.”

Judge Orozco authored the opinion, with Judge Portley concurring.  Judge Kessler, Presiding Judge, dissented.