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Boiano v. Eppoliti Construction

CASE NO. 2108 CRB-4-94-7



JUNE 26, 1996











The claimant was represented by Kurt Ahlberg, Esq., 1129 Essex Place, Stratford, CT 06497.

The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the July 18, 1994 Finding and Award of the Commissioner acting for the Fourth District was heard April 21, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.


JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the July 18, 1994 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the commissioner erroneously ordered them to pay the claimant’s wife $100 per week for home health care services that she provides to her husband. We affirm the trial commissioner’s decision.

The claimant fell approximately sixty feet from a scaffold on May 10, 1988, suffering extensive compensable injuries to his spine, pelvis, bladder, legs and feet. He is currently totally disabled. The commissioner found that the claimant suffers from urinary and bowel incontinence, and needs help getting out of bed, dressing and showering. He cannot cook because he has difficulty standing. His memory has become unreliable, and he must now be monitored to be sure he does not take overdoses of his medications. As a result of his incontinence, he must be cleaned several times daily, and his bedclothes often need to be changed.

Several doctors have ordered that the claimant receive constant care. The respondents’ examiner, Dr. DeMayo, recommended that he receive home health care for a long period of time. The claimant’s wife, Priscilla, has been performing that function. Prior to her husband’s injury, Priscilla was a bookkeeper earning $300 per week. During various periods between 1988 and July 1993, the respondents had been paying her $100 per week for her services. Although she has continued to perform home health care services since then, i.e., constantly changing and cleaning her husband’s clothes and bedding, monitoring his medications, catheterizing him, preparing his food and controlling his diet (he is lactose-intolerant), dressing him, showering him, driving him, etc., the respondents no longer wish to pay for her services. They argue that if the claimant wore a special diaper, all of Priscilla’s other services could be completed before and after she was at work.

The commissioner found that Priscilla’s services are beyond the ordinary spousal duty of an affectionate wife, and that the respondents should continue to pay her $100 per week. He also denied the respondents’ subsequent Motion to Correct, which sought to make alterations to the findings based on testimony and evidence that the commissioner did not cite in his decision. The respondents now argue that neither the law nor the evidence in this case supports the commissioner’s decision.

We will first address the propriety of the factual findings regarding the claimant’s condition. The respondents attempt to characterize the claimant as being more self-sufficient than he would appear to be from the findings. They claim that the evidence shows that he is capable of walking, preparing food, and taking his own medicine. They also contend that the claimant is capable of catheterizing himself when he needs to, and that a special diaper would prevent the problems caused by his incontinence. Thus, it is their belief that the claimant does not require his wife’s full-time care.

The respondents’ argument is largely based on statements made by the claimant and his wife during their testimony. For example, the respondents note that the claimant testified that he can catheterize himself (Transcript, p. 16), and that he only needs to take his medication once during the business day, so that his wife could leave it out for him (Id., pp. 17, 40). However, these statements do not entirely reflect the general tenor of the Boianos’ testimony. The Boianos both testified that the claimant’s memory has become very poor as a result of the accident, and that this can and has resulted in his forgetting to catheterize himself, or in repeating doses of his medication. (Id., pp. 8, 35). The claimant’s is prone to wandering while under the influence of the medication he must take to combat his pain, while at other times the pain is so severe he cannot get out of bed all day. (Id., pp. 18, 26). Thus, even if the claimant were to wear a diaper as suggested by the respondents, the commissioner certainly could have determined from the testimony that he was not capable of taking care of himself all day. As the claimant points out in his brief, there are also numerous medical reports that detail the claimant’s problems, and support his need for constant care and assistance. We cannot say that the commissioner erred in finding that there was such a need in this case. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

The respondents also argue that Priscilla Boiano’s services do not amount to medical or nursing services, as she is not a trained nurse, but a loving spouse who should not be compensated for her services. We recently addressed a similar argument in Valentino v. United Parcel Service, 13 Conn. Workers’ Comp. Rev. Op. 142, 1907 CRB-4-93-11 (Feb. 1, 1995). There, an agent of the respondent insurer had agreed to compensate an injured claimant’s family for his round-the-clock care in lieu of sending him to a rehabilitation facility. The insurer later sought to cease making payments to the family on the ground that none of the family members met the definition of “nurse” under § 20-87a(a) C.G.S. We held that § 31-294 C.G.S. did not prevent an insurer from compensating a claimant’s family for providing care, and in light of the contract made by the insurer’s agent, the family was entitled to the agreed compensation. Id., 144-45. We specified that we were not deciding whether or not an employer is required to pay such compensation under the Workers’ Compensation Act.

Section 31-294 expressly requires the employer to pay for “medical and surgical aid or hospital or nursing service, including medical rehabilitation services” deemed reasonable or necessary by a physician. This provision can reasonably be interpreted to authorize some compensation for a spouse or family member whose services go well beyond the normal care provided by such individuals, especially when the services are provided in lieu of professional health care. This is not to say, however, that all spousal and family care should be compensated. Our supreme court long ago stated that “it may fairly be said that the General Assembly must have contemplated the possibility of a period of convalescence after discharge from the hospital, and has not required the employer ordinarily to pay for home treatment and home care.” Galway v. Doody Steel Erecting Co., 103 Conn. 431, 435 (1925). The court then cited Honnold’s treatise on Workmen’s Compensation, stating “in case of injury requiring hospital treatment, an award will be made for services rendered and appliances furnished to the injured employee by another member of his family in lieu of such treatment and in accordance with the consent and direction of the physician in charge, especially when the member rendering such services gives up his regular employment, in order to do so.” Id., 435-36.

In this case, the commissioner did not specifically find that a contract continued to exist between Priscilla Boiano and the respondents for her services, although she was paid $100 per week for the care she provided between 1988 and 1993. Whether an implied contract still exists here would be a factual decision that this board cannot make on its own. We will say, however, that it would appear to be advantageous to the respondents to pay $100 per week to Priscilla Boiano rather than paying a much greater sum to a licensed health care professional. Indeed, the value of her services is probably much higher than $100 per week. Although not a focal point of the case, Priscilla did testify that she gave up a bookkeeping job to take care of her husband after he was hurt, which was properly factored into the commissioner’s decision. The care she is now providing is significantly greater than ordinary convalescent care one might expect from a family member, and may be necessary for the rest of the claimant’s life. Under the circumstances of this case, it was within the commissioner’s discretion to find that Priscilla Boiano should be compensated $100 per week for the home health care services she provides to her husband as long as his current condition continues.

The trial commissioner’s decision is affirmed.

Commissioners Amado J. Vargas and Michael S. Miles concur.

Workers’ Compensation Commission

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