The issue of attendant care provided to an injured worker by family members was initially presented to the Alabama Court of Civil Appeals in the 2003 case of Osorio v K&D Erectors, Inc., 882 So. 2d 347 (Ala.Civ.App. 2003). In Osorio the plaintiff was found to be permanently and totally disabled after an accident where he fell thirty feet from a roof and suffered a severe closed-head injury; partial blindness; paralysis in his left leg; loss of use of his left arm; and multiple fractures to his skull and ribs. The injured employee also suffered severe cognitive and language deficits.
As a result of the injuries the claimant had to live with family members who helped care for him by assisting him with grooming, personal hygiene, preparing food, bathing and dressing. While the employer did not dispute that the claimant was permanently and totally disabled, the employer challenged a trial court’s requirement compelling the employer to compensate the claimant’s family members for the attention and assistance they rendered to the claimant.
The Alabama Court of Civil Appeals held in Osorio that the employer did not have to pay the claimant’s family member for attendant care on the basis that while such care certainly improved the claimant’s independent functioning, it did not “improve his disabled condition.” Thus the employers medical obligations were limited.
Fast-forward 11 years to present day. On June 14, 2014, the Alabama Court of Civil Appeals released an opinion in the case of Alabama Forestry Products Industry Workers’ Compensation Self-Insurers Fund v. Harris which effectively overruled the Osorio case. In so doing, the Court has considerably expanded the scope of an employer’s medical obligations and exposure in Alabama Workers’ Compensation cases.
The Harris case stemmed from a 1990 accident which resulted in severe injuries to Mr. Harris’s pelvis and right lower extremity. In 1991 Harris’s authorized treating physician wrote a letter stating that, due to ambulatory difficulties it was “imperative that [Harris] have help at home during his recovery phase.” In response his employer paid various members of Harris’s family on a monthly basis for ongoing assistance to Harris.
Harris settled his workers compensation in 1992 and pursuant to the terms of the settlement agreement medical benefits would remain open. Thereafter, Harris’s employer continued the monthly payments to Harris’s family members for almost 20 years. In 2011; however, Harris requested that his future son-in-law replace his daughter as his paid care-giver. The third party administrator complied and made several payments to Harris’s son-in-law before it was discovered that Harris’s son-in-law actually lived, and was employed, in a different city, whereupon the third party administrator terminated all payments for attendant care. Harris’s attorney filed a declaratory judgment action seeking reinstatement of the attendant care payments. Harris’s authorized treating physician testified by deposition that Harris’s severe physical limitations from his injury preclude him from independently performing ordinary activities of daily living and that he will require assistance with those activities for the rest of his life. The doctor admitted, however, that while such assistance would likely prevent further deterioration, such assistance would not improve his underlying physical condition.
The Trial Court agreed with Harris and ordered the employer to reinstate attendant care payments to Harris’s family and the employer appealed. In its June 14, 2014 opinion, the Alabama Court of Civil Appeals overruled the Osorio case and held that attendant care falls within “reasonably necessary medical and surgical treatment and attention” pursuant to Code §25-5-77 of the Alabama Workers Compensation Act. The Court further held that when a non-professional family member supplies treatment or services designed to prevent further physical or mental deterioration, then an employer may be compelled to compensate that non-professional family member for such services for up to 8 hours per day at minimum wage.
It is not hard to appreciate the considerable impact the Harris case could have on medical exposure in Alabama claims. At the current minimum wage of $7.25 family-provided attendant care could result in an additional $406 per week in medical expenditure. At that rate a 35 year old male claimant with a 42 year life expectancy could incur an additional $899,371.20 in medical costs over and above the traditional medical costs which already comprise the majority of an employer’s exposure on most claims.
As we face new and evolving challenges in claims, however, take note that parties are still free to negotiate the scope of their rights and obligations when settling cases. In cases where it is not possible to settle future medical benefits, it may be very wise to define the scope of what future medical treatment will be covered and what types of care and attention will not. It may save you a lot of money in the long run.