Compensation for attendant care hinges on nature of services

In Arizona, the compensability of attendant care services depends on the nature of the care provided and not the status or identity of the service provider.

Case name: Carbajal v. Industrial Comm. of Arizona, Phelps Dodge Corp., and Gab Robins North America, No. CV-08-0359-PR (Ariz. 06/15/09).

Ruling: In a case of first impression, the Arizona Supreme Court vacated the Court of Appeals' finding that the attendant services the injured worker's wife provided were not compensable. It remanded to the administrative law judge to determine whether the services were "reasonably required."

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What it means: In Arizona, the compensability of attendant care services depends on the nature of the care provided and not the status or identity of the service provider.

Summary: An employee suffered an industrial injury that required full-time supervision and intermittent attendant care. Attendants provided services during certain hours of the day, and his wife performed the attendants' duties when they were not present. The wife requested payment for attendant care but was denied because the care was "akin to the day-to-day duties assumed by a spouse." The carrier maintained that the wife was not eligible to receive compensation because even though she performed services identical to those provided by paid attendants, she was not a licensed health care provider. The Arizona Supreme Court ruled that to be compensable the services must be listed in one of the categories of services, and the services must be reasonably required.

The Supreme Court noted that a license is "not the touchstone for determining compensability of services." It rejected the carrier's argument that services are only compensable when performed by the carrier-provided attendants but not by the worker's wife.

The court also determined the wife could be compensated for "palliative" care -- care involving the management of the worker's symptoms or mitigation of the effects of his injury -- if an attendant would be compensated for the same services. However, the court pointed out they also had to be "reasonably required." The court vacated the Court of Appeals' opinion and remanded to the ALJ to determine whether the care the wife provided was "reasonably required."

July 13, 2009

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