Should a Carrier be Required to Pay for “Companionship” for a Claimant? Testing the Limits of 24/7 Nursing Care

In Virginia, nursing services, whether rendered in a hospital or at home, are included among the medical benefits that an employer and carrier must furnish for injured workers, provided those services constitute “medical attention” and are “necessary.” What may come as a surprise is that the Virginia Workers’ Compensation Act does not actually define what “medical attention” and “necessary” mean in this context.

For close to 40 years, the Commission has used a 4-prong test laid out in Warren Trucking Co. v. Chandler, 221 Va. 1108 (1981) to clarify the meaning of those terms. In that case, the Virginia Supreme Court introduced the test to analyze at-home nursing care provided by spouses, but courts have since expanded this test to cover at-home nursing care provided by girlfriends/boyfriends, friends, parents, and home health aides. Namely, employers and carriers must pay for at home-nursing care if:

1. The employer knows of the employee’s need for medical attention at home as a result of the industrial accident;
2. The medical attention is performed under the direction and control of a physician;
3. The care rendered by the spouse must be the type usually rendered only by trained attendants and beyond the scope of normal household duties; and
4. There is a means to determine with proper certainty the reasonable value of those services.

In Dawson v. County of Henrico, a case currently pending before the Virginia Court of Appeals, the claimant’s prescribing physician, a psychiatrist, provided conflicting opinions regarding the claimant’s need for 24/7 home nursing care. While the psychiatrist first opined that the 24/7 home nursing care was necessary, he later clarified that the claimant only needed 18 hours of home health care, and that he would benefit from a “mentor,” “friend,” or “companion” during the day. The doctor believed that the claimant would benefit from having personal attention and interaction at home but did not necessarily need medical attention. Specifically, the recommended companionship services to be performed included: reminders to take medication, meal preparation, reminders to perform personal hygiene tasks, and general companionship activities.

Fortunately, the Court of Appeals has provided some guidance to demonstrate what may constitute covered medical care. In both Kenbridge Construction Co. v. Poole, 25 Va. App., No. 115, 486 S.E.2d 67 (1997) and Howard v. Howard Brothers, Inc., Va. App. No. 1007-13-2 (2014) the Court of Appeals found that a spouse’s services were beyond normal household duties as they consisted of monitoring the claimant’s heart rate and blood pressure, providing suppositories and enemas, preventing bed sores, and administering a PICC line to administer antibiotics. The claimant in Dawson does not need any of those activities, but instead, would benefit from a mentor or friend according to the treating doctor.

The Employer and Carrier prevailed both at the evidentiary hearing and before the Full Commission on appeal that the companionship services did not constitute “medical attention” and were not “necessary” for purposes of the Act.

The third prong of the Warren Trucking test will be central to the Court of Appeals’ analysis. The Court must decide whether the recommended companionship tasks constitute necessary medical attention beyond the scope of normal household duties. While the companionship duties performed by the claimant’s fiancé may be helpful for the claimant in this case, we believe that the Court of Appeals will side with the Deputy Commissioner and the Full Commission by finding that it should not be the province of the Commission to force an insurance company to pay for a claimant to have access to a friend while at home.

Stay tuned for an update on how the Court of Appeals rules on this important issue!

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