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Cormier v. The Macke Company

CASE NO. 3266 CRB-2-96-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 20, 1997

MARLENE CORMIER

CLAIMANT-APPELLANT

v.

THE MACKE COMPANY

EMPLOYER

and

EMPLOYERS INSURANCE OF WAUSAU

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Dennis A. Ferdon, Esq., Anderson & Ferdon, 101 Water St., Norwich, CT 06360.

The respondents were represented by James Aspell, Esq., Furniss & Quinn, 248 Hudson St., Hartford, CT 06710.

This Petition for Review from the January 31, 1996 Finding Re: Housekeeping Services of the Commissioner acting for the Second District was heard December 13, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 31, 1996 Finding Re: Housekeeping Services of the Commissioner acting for the Second District. She contends on appeal that the commissioner erred by denying her compensation for the cost of housekeeping services in her home. We affirm the trial commissioner’s decision.

Section 31-294d C.G.S. requires an employer to “provide a competent physician or surgeon to attend the injured employee and, in addition, [to] furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services, as the physician or surgeon deems reasonable or necessary.” We recently held that this statute does not prevent a workers’ compensation insurer from compensating the members of a claimant’s family for providing round-the-clock care, where the insurer’s agent agreed to such payment in lieu of hiring a professional home health care provider. Valentino v. United Parcel Service, 13 Conn. Workers’ Comp. Rev. Op. 142, 1907 CRB-4-93-11 (Feb. 1, 1995). We have also held that it was within a trier’s discretion to award compensation for home health care services to the wife of a claimant where the care she was providing was much greater than ordinary convalescent care one might expect from a spouse, and where she quit her job to take care of her husband after he was hurt. Boiano v. Eppoliti Construction, 15 Conn. Workers’ Comp. Rev. Op. 342, 2108 CRB-4-94-7 (June 26, 1996).

The claimant’s request in this case is related to those issues, but attempts to extend the scope of § 31-294d even further. The claimant suffered a 30% permanent partial disability of her back from an accepted 1975 injury, and has undergone four surgeries for her condition. She testified that she cannot sit or stand for long periods of time because of her back pain, and can only do the lightest of household chores. Specifically, she is able to do light housework and cooking, but cannot engage in vacuuming or other housework that requires her to bend forward because it causes her to suffer muscle spasms. When they occur, these spasms can leave her bedridden for up to five days, and interrupt her sleep. The claimant has thus been hiring a housekeeper to do the more strenuous household chores since 1979. Her doctor stated that household help is “reasonable and necessary medical treatment” for her, and that he is prescribing it in this case. The claimant seeks reimbursement from the respondents for the cost of hiring a housekeeper once a week from November 7, 1994 through August 30, 1995.

The trial commissioner concluded that housekeeping services that are not incidental to medical, nursing or rehabilitative treatment are not compensable under the Workers’ Compensation Act, and dismissed this claim. In a memorandum of law accompanying her decision, the trier drew a distinction between housekeeping services related to medically necessary attendant care services designed to improve the claimant’s condition and housekeeping services that do not enable a claimant to obtain medical or nursing treatment. As the services in question here fell into the latter category, the commissioner stated that “having determined that the purpose of § 31-294[d] is to provide payment by the employer for medical expenses, . . . [I] cannot create statutory rights and liabilities under the guise of construction. . . . While the claimant was a credible and appealing witness, I cannot exceed the limitations of this Act.”

The claimant argues that the trier erred by determining whether the housekeeping services were “incidental to” medical treatment, instead of inquiring as to whether those services constituted “reasonable or necessary medical aid” in and of themselves. Her doctor prescribed the hiring of housekeeping services in lieu of narcotics that she would need if she continued to do housework herself. See Finding #16. The claimant contends that this prescription for a housekeeper was a means of preventing increased pain, thereby constituting reasonable medical aid. See Mulligan v. N.C.H. Corporation Chemsearch Division, 10 Conn. Workers’ Comp. Rev. Op. 131, 132, 1135 CRD-7-90-11 (June 2, 1992) (reasonable or necessary medical treatment must be deemed as such by the treating physician before medical treatment, and cannot be palliative rather than curative); see also Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 64, 232 CRD-1-83 (June 19, 1984) (curative or remedial care seeks to repair damage to health caused by the job even if not enough health is restored to enable the employee to return to work, and seeks to eliminate pain so an employee can work). She notes that her doctor likened the housekeeper prescription to a light duty restriction, as they are both intended to keep the patient from further injury.

Although this case raises an issue of first impression before this board, Larson’s treatise is instructive regarding the legal developments on this issue. See 2 Larson, Workmen’s Compensation Law, § 61.13(d)(4), p. 10-967 (1996). “While ‘attendance’ in the nursing sense is covered, . . . a line has been drawn between nursing attendance and services that are in essence housekeeping.” Id. Larson cites cases that have prevented recovery for the cost of a housekeeper on the ground that the services provided were not medical in character. Tirocchi v. U.S. Rubber Co., 224 A.2d 387 (R.I. 1966); Cote v. Georgia-Pacific Corp., 596 A.2d 1004 (Me. 1991); Galioto v. Jay Dee Transp., 75 A.2d 348 (N.Y. 1980). He also cites a few cases that have held that housekeeping services prescribed by a physician may constitute medical treatment reasonably needed to cure or relieve the injury. Smyers v. Workers’ Compensation App. Bd., 157 Cal. App. 3d 36 (1984); Delong v. West Corp., 491 So. 2d 1306 (Fla. Dist. Ct. App. 1986). A review of the cases cited by Larson shows that the courts of ten states have expressly disallowed compensation for normal household duties not attendant to nursing care, two others that have issued conflicting decisions, and only two--Illinois and California--that have stated that there is no “per se exclusion” for housekeeping duties provided by someone other than the spouse of the claimant.

Despite the claimant’s argument, we are inclined to go along with the majority of jurisdictions that have addressed this issue. We do not think that a reasonable reading of § 31-294d requires the inclusion of housekeeping services not related to other home nursing or medical care in the definition of “medical aid,” even if a doctor indicates that a claimant would be better off with a housekeeper to help her or him maintain a household. Such a reading of the statute simply goes too far afield from what we believe the legislature actually contemplated in drafting that provision. We hold that the test applied by the trial commissioner in this case was a reasonable method of determining whether the claimant should be reimbursed for the cost of her housekeeper’s services, and we affirm her decision.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

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