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Valentino v. United Parcel Service

CASE NO. 1907 CRB-4-93-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 1, 1995

ARCANGELO VALENTINO

CLAIMANT-APPELLEE

v.

UNITED PARCEL SERVICE

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by David S. Golub, Esq., Silver, Golub & Teitell, P. O. Box 389, Stamford, CT 06904.

The respondents were represented by Kevin J. Maher, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the November 16, 1993 Finding and Award of the Commissioner acting for the Fourth District was heard November 18, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN.The respondents have petitioned for review from the November 16, 1993 Finding and Award of the Commissioner for the Fourth District, along with a Supplemental Finding and Award dated April 22, 1994. They contend that the commissioner improperly ordered them to pay compensation for medical care rendered to the claimant by his family because said family members are not qualified to provide medical care under the Connecticut Workers’ Compensation Act. We disagree with the respondents’ position and affirm the trial commissioner’s decision.

The commissioner found that the claimant suffered serious head injuries when he fell from a ladder in the course of his employment with the respondent United Parcel Service. While hospitalized for those injuries, the claimant suffered a further brain injury and a serious back injury in a fall from a second-story window. As a result of these brain traumas, the claimant has sustained a 40 percent permanent partial disability of the brain that has left him totally disabled and unable to care for himself. The claimant requires round-the-clock nursing attendance in light of his physical and mental condition, which also includes the need for a daily insulin injection due to diabetes.

During the claimant’s hospitalization, an employee and authorized agent of the respondent Liberty Mutual, met with the Valentino family to discuss the claimant’s need for 24-hour care. They agreed that, in light of a staff shortage at the hospital, family members would provide the necessary care during the claimant’s hospitalization and would be paid at Mrs. Valentino’s $10.50 hourly wage rate. This agreement was carried out as discussed. Prior to the claimant’s discharge, the agent of the respondent insurer again met with the Valentino family to discuss the round-the-clock post-discharge care that the claimant would require. They decided that, rather than placing the claimant in a rehabilitation facility where he might experience disorientation, it would be better to return the claimant to his home. The agent agreed with the Valentino family that, in lieu of outside nursing care, the family members would continue to care for the claimant at the $10.50 per hour rate that had been utilized while the claimant was hospitalized. The Valentino family assumed full responsibility for the claimant’s care in accordance with this agreement.

The claimant continued to require 24-hour care after his return home. He was continuously in a disoriented mental state and a weakened physical state, and he could not tend to his daily living needs or perform routine tasks for himself such as brushing his teeth, showering, putting on his back brace, or preparing and eating food. He was also prone to violent outbursts (i.e. throwing furniture), extreme paranoia and wandering off, and could not be relied upon to act in a predictable or safe manner. Although his mental condition had improved somewhat by 1992 or 1993, he was still unable to care for himself or properly control his emotions at the time of the commissioner’s award, and has sustained a permanent intellectual deficit that has left him functioning at the level of a young child who requires daytime and nighttime supervision. His condition will not improve, and is likely to worsen with age.

Although the care-giving services performed by the claimant’s family members far exceed normal household services for family members and were found to be reasonably medically necessary, the respondents have refused to pay the Valentino family at the $10.50 hourly wage rate agreed to by the insurer’s agent, even though it would be far more costly for the respondents to pay for either professional home nursing care services or the placement of the claimant in a rehabilitation facility. In fact, the respondents stopped making payments to the Valentinos altogether after July 31, 1990. The commissioner found that the agent of the respondent insurer was acting on behalf of said insurer, had agreed to compensate the Valentino family at a rate of $10.50 per hour in exchange for their services as 24-hour care attendants, and that this agreement was enforceable pursuant to both the Workers’ Compensation Act and general contract law. He awarded the Valentino family all unpaid nursing expenses at the $10.50 hourly rate along with attorneys’ fees and interest, from which award the respondents have appealed.

The respondents’ position centers on General Statutes § 31-294, which provided at the time of the claimant’s injury that “[t]he employer . . . shall furnish such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems reasonable or necessary. . . . ‘Nursing,’ as used herein, means the practice of nursing as defined in subsection (a) of section 20-87a, and “nurse” means a person engaged in such practice.” The respondents argue that they are not required to compensate the Valentino family for their home nursing services because none of the members of that family meet the statutory definition of a nurse under § 20-87a (a).1 They also argue that the care provided by the family members is not medical care within the meaning of § 31-294, as it rather constitutes a noncompensable familial and spousal duty. See Galway v. Doody Steel Erecting Co., 103 Conn. 431 (1925).

The respondents’ argument is unavailing in these circumstances. We need not determine here whether an employer is required under § 31-294 to compensate a family such as the Valentinos for services of the kind rendered in this case; it is enough to say that the statute does not prevent an employer or insurer from agreeing to compensate a claimant’s family for taking care of him. In this case, it is undisputed that an agent of Liberty Mutual agreed to compensate the Valentinos for taking care of the claimant at home at a rate of $10.50 per hour in lieu of hiring a professional home health care provider or placing the claimant in a rehabilitation facility at a far greater cost to the insurer. The respondents did not have the right to breach this contract merely because they were arguably not compelled to make such an arrangement under Connecticut workers’ compensation law. The claimant’s family has performed the services contemplated by the agreement with Liberty Mutual, and is therefore entitled to compensation at the contract rate. Indeed, it is the opinion of this Board that the respondents’ unilateral stoppage of payments to the Valentino family has violated the humanitarian spirit of the Workers’ Compensation Act in a very disheartening manner.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 Section 20-87a (a) provided in 1987 that “[t]he practice of nursing by a registered nurse is defined as the process of diagnosing human responses to actual or potential health problems, providing supportive and restorative care, health counseling and teaching, case finding and referral, collaborating in the implementation of the total health care regimen and executing the medical regimen under the direction of a licensed physician or dentist.” BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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