When you suffer an on-the-job injury, Vermont workers’ compensation law requires your employer to pay for any medical care you require as a result of your accident. This is not limited to just hospitalization and doctor’s visits. Vermont law states your employer must “furnish” you with any “reasonable surgical, medical, and nursing services” that you might require.
“Nursing” Care Not Limited to Registered Nurses
With respect to “nursing,” there are in fact many Vermont workers’ compensation cases where the injured employee requires long term and often round-the-clock nursing care. Such nursing services may be provided by someone other than a licensed nursing professional. In a 1997 decision, Close v. Superior Excavating Co., the Supreme Court of Vermont upheld a decision by the state Department of Labor ordering an employer to pay workers’ compensation benefits to a spouse who provided nursing services for an injured employee.
The employee in Close suffered a job-related head injury that led him to suffer intermittent seizures, behavioral problems, and memory loss, among other symptoms. Due to his condition, the employee required 24-hour supervision, which his wife provided. The Department of Labor subsequently ordered the employer to pay over $200,000 in workers’ compensation benefits as compensation for the wife’s “nursing” services.
The Supreme Court noted that Vermont’s workers’ compensation statute did not explicitly define the term “nursing.” Nor did it specifically address whether or not spousal care qualified as nursing services. After examining cases from several other states, however, the Vermont justices determined that a “flexible approach” was needed when it came to defining the scope of covered nursing services. Specifically, workers’ compensation officials needed to consider a number of factors, including:
- the nature of the services provided by the spouse;
- the employee’s need for continuous care;
- the nature of the injury and medical condition of the employee; and
- whether it was possible to assign a reasonable value to the services provided.
Vermont Workers’ Compensation Judge Awards $283,417.44 in Spousal Pay Benefits
More recently, a Vermont Department of Labor administrative law judge issued a ruling in favor of an employee’s claim with respect to spousal nursing care benefits. This case, Hardy v. Autumn Harp, Inc., provides a good illustration of the type of evidence necessary to support such a claim.
The claimant in this case is a 73-year-old man living in Colchester with his wife. In 2008, the claimant suffered a work-related injury when he stepped out of a building where the stairs had been removed. The claimant fell and sustained a serious lower back injury.
In the years since the injury, the claimant has required continuous care from his wife. As the administrative law judge’s decision explained in detail, the claimant “experiences chronic and intense low back pain that significantly affects his mobility.” He requires assistance with all facets of daily living, including getting in and out of bed, moving around his house, getting dressed, personal hygiene, and preparing meals. He is also no longer able to drive.
When the claimant’s accident occurred in 2013, his wife worked full-time outside of the home. Due to her husband’s need for continuous care, however, she cut back her hours to part-time in 2014 before retiring in 2015. The wife testified she retired because “it was too much of a hazard” to leave her husband home alone without assistance.
In addition to testimony from the claimant and his wife, the administrative law judge received evidence from the claimant’s primary care doctor, who stated in her written treatment notes that “[b]ecause of [the claimant’s] disabling work injury, nursing services/personal care attendant services are needed.” The claimant’s wife also provided written records of the time she spent caring for her husband. The judge credited these records in his opinion.
The judge also heard from a number of expert witnesses retained by both the claimant and his former employer. For example, a registered nurse testified on the claimant’s behalf that the care the claimant’s wife provided “involves significant amount of skilled care, in the range of approximately eight hours per day, and this care keeps Claimant out of a nursing home.” Other witnesses testified the wife’s services fell within the scope of nursing services as defined by Medicare’s reimbursement guidelines.
Other witnesses testified that in their professional opinion, most of the services the spouse provided were for “personal care” and not skilled nursing care. This was an important distinction, the administrative law judge explained, because in the years since the 1997 Close decision, the Vermont Department of Labor has “clarified that not all care that a family member might provide to an injured worker is automatically compensable” as skilled nursing services. For example, household chores would be considered “unskilled” personal care.
In this case, the administrative law judge said the “precise line separating skilled and unskilled services is less than crystalline.” Ultimately, the judge decided the best standard was to look at what services were reasonably necessary “to relieve the claimant’s symptoms and maintain his functional abilities.” Applying this standard, the judge concluded that based on the expert testimony, the claimant was “unable to reach his lower body because of his work-related injury.” And absent his wife’s continuous care, the claimant would require professional services to compensate for this disability.
At the same time, the judge said the spouse was not entitled to compensation for “24 hours per day,” which was what happened in the Close case. But the judge agreed the claimant’s request for 8 hours per day of compensated services was appropriate. The employer was therefore directed to pay workers’ compensation benefits equal to the minimum wage for 8 hours per day of nursing services from 2016 to 2024, a total of $283,417.44. Going forward, the administrative law judge said the employer must pay the spouse a “per diem” for any future nursing services consistent with Vermont’s annually adjusted minimum wage.
