Failure to follow procedure prevents payment for home health services

In Kansas, nursing services by a member of an injured worker's family must be approved in advance by the treating physician.

Case name: Lemmons v. Ryder Integrated Logistics, Inc., No. 106,153 (Kan. Ct. App. 03/16/12, unpublished).

Ruling: In an unpublished decision, the Kansas Court of Appeals held that a worker's wife was not authorized to be his home health care provider.

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What it means: In Kansas, nursing services by a member of an injured worker's family must be approved in advance by the treating physician.

Summary: A worker sustained a spinal cord injury while working that rendered him permanently and totally disabled. The employer offered to provide him with around-the-clock in-home attendant care. The worker declined but agreed to 45 hours of care per week by a caregiver. The worker and his wife found the presence of the caregiver in their home to be intrusive. The worker sought to have his wife substituted as the attendant care provider and to have her compensated for her services. He discharged the caregiver. The Kansas Court of Appeals held that the wife was not authorized as the worker's home health care provider because he failed to follow the proper procedures.

The law provides that a worker can obtain nursing services himself if the employer neglects or refuses to provide such services. Here, the employer did neither. It offered to provide him with constant nursing care, but he eventually dismissed the service entirely.

Also, if the services of a health care provider are not satisfactory, another provider can be appointed. Here, there was no evidence that the care provided was unsatisfactory.

The court pointed out that the wife had no nursing training. Also, nursing services by a family member must be approved in advance by the treating physician. The treating physicians commented that the wife was "capable" of providing attendant care to the worker, but their comments were not "advance approval."

The worker also argued that he was entitled to more than 45 hours per week of assistance. The court declined to resolve the issue since it determined that the wife was not entitled to compensation as a home health caregiver. The court said that if he sought compensation for a home health provider in the future, evidence of his current need for home health care would be considered.

Read more at the WorkersComp Forum homepage.

May 21, 2012

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