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No. 87-61
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

GARY A. LARSON,
Claimant and Respondent,
-vs-
SQUIRE SHOPS, INC.,
Employer,
and
INDUSTRIAL INDEMNITY COMPANY,
Defendant and Appellant.

APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:

For Appellant: Marra, Wenz, Johnson & Hopkins; David E. Bauer, Great Falls, Montana
For Respondent: Milodragovich, Dale & Dye; Lon J. Dale, Missoula, Montana
Submitted on Briefs: Aug. 13, 1987
Decided: September 15, 1987

Clerk

Mr. Justice John Conway Harrison delivered the Opinion of the

Court.

This appeal arises from a final judgment entered by the
Workersv Compensation Court of the State of Montana. Both
parties appeal an award of domiciliary care. We return this
cause to the Workers' Compensation Court to conform with our
opinion.

This appeal concerns an award of domiciliary care
issued by the Workersv Compensation Court (WCC) to the
claimant, Gary Larson. Gary is a twenty-seven year old
married male with two step children. He was injured in a
February 1983 automobile accident while in the course and
scope of his employment as an assistant manager for the
Squire Shop, a Missoula retail clothing store. As a result
of the accident, Gary suffered a traumatic blow to the head
which, in conjunction with a resulting subdural hematoma,
caused permanent brain inyiury. His resultant disabilities
render Gary permanently disabled. Industrial Indemnity
Company, workmen's compensation insurer for the Squire Shop,
agrees that Gary is permanently totally disabled.

It is agreed on all sides that Gary's injuries are
serious. He continues to experience disabilities of memory,
thinking, motivation and, at times, vision. Significantly,
Gary also suffers emotional instability or difficulty in
maintaining emotional control. Because of these
disabilities, Gary has experienced difficulty in handling
everyday situations and has required some supervision.

Since his release from the hospital on March 3, 1983,
Gary has resided with his family at their residence in
Clinton, Montana. Since that date, Gary's wife, Candice, has
taken over the primary care of Gary. The primary issue upon
appeal is whether, under the workersv compensation laws of

this state, Industrial Indemnity is obligated to pay for the
services provided by Candice. For the sake of consistency,
we will refer to Candice's services as domiciliary care.

This case was first presented to the WCC in May 1985.
Though this first hearing concerned issues unrelated to this
appeal, it was at this juncture that the WCC raised the issue
of domiciliary care. In its findings and conclusions dated
August 22, 1985, the WCC noted that Candice's domiciliary
care might be cornpensable and instructed the parties to brief
the issue.

On November 4, 1985, the WCC entered its judgment on the issue of domiciliary care. Of primary significance was the court's finding that Gary has required twenty-four hour a day care since his release from the hospital. The court further found that Candice had been providing this around the clock care and that under the laws of this state, Industrial Indemnity was obligated to pay for Candice's domiciliary care. Based on testimony, the WCC found that a reasonable rate of compensation for this care was $7.00 per hour. Thus, the WCC held that Industrial Indemnity was liable, at the rate of $7.00 per hour, twenty-four hours a day, for the domiciliary care provided by Candice since March 3, 1983, and would remain liable for all future care provided by Candice so long as it was required. Finally, the WCC found that to provide a respite for Candice, a personal care attendant should be appointed to care for Gary on the average of 28.74 hours per week. Candice would care for Gary the remaining
139.26 hours per week.

Following rehearing, the WCC amended somewhat its
judgment. Noting that the issue of domiciliary care had not
been raised until August 22, 1985--the date of the first
hearing--the court held that Industrial Indemnity should not
be held liable for payment prior to that date. Industrial

Indemnity therefore became liable for this care from the date
the issue was first raised, rather than the date of Gary's
release from the hospital.

Both parties now appeal. Industrial Indemnity

(hereinafter insurer) contests the award of domiciliary care
provided by candice. Gary (claimant) challenges the court's
change of the starting date for compensable domiciliary care.

Montana's medical benefit provision under the Workers' Compensation Act is S 39-71-704, MCA, which states in part:
(1)
In addition to the compensation
provided by this chapter and as an
additional benefit separate and apart
from compensation, the following shall be
furnished:


(a)
After the happening of the injury,
the insurer shall furnish, without
limitation as to length of time or dollar
amount, reasonable services by a
physician or surgeon, reasonable hospital
services and medicines when needed, and
such other treatment as may be approved
by the division for the injuries
sustained.



In Carlson v. Cain (Mont. 1985), 700 P.2d 607, 614-15, 42 St.Rep. 695, 703-04, this Court affirmed a decision of the WCC which recognized that under this statute domiciliary care provided by a member of an injured employee's family might be compensable as "such other treatment." Today, we reaffirm that decision. We note that this appears to be the majority position, see 2 A. Larson, Workman's Compensation Law,
S 61.13 (d)(2) (1986), and believe it is correct as a matter of law.
Insurer does not contest the appointment of a personal
care attendant.

In Carlson, we quoted with approval a five-step test

used by the WCC to determine whether "services provided in

the home are compensable. "2 Pursuant to this test, an
insurer is liable for domiciliary care if:

(1)
The employer knows of the employee's
need for medical services at home
resulting from the industrial injury;


(2)
the preponderance of credible
medical evidence demonstrates that home
nursing care is necessary as a result of
accident, and describes with a reasonable
degree of particularity the nature and
extent of duties to be performed by the
family members;


(3)
the services are performed under the
direction of a physician;


(4)
the services rendered are of the
type normally rendered by trained
attendants and beyond the scope of normal
household duties; and


(5)
there is a means to determine with
reasonable certainty the approximate
value of the services performed.



Carlson, 700 P.2d at 614.

I

Applying these factors, insurer contends that the WCC
award of domiciliary care was (1) premature, (2) unsupported
by substantial credible evidence, and (3) unreasonable.

This test is a slightly modified version of the factors

set forth in Warren Trucking v. Chandler (Va. 1981),

277 S.E.2d 488, 493.

Insurer initially argues that the award of domiciliary

care was premature. After the issue of domiciliary care had
been raised, insurer requested, and ultimately obtained,
permission to schedule an independent medical examination at
University Hospital in Seattle, Washington. During
March-April 1986, the staff at the Department of
Rehabilitation Medicine at University Hospital conducted a
comprehensive, two-week examination of claimant. The stated
purpose of that examination was to obtain a second opinion on
the status of claimant in terms of his need for domiciliary
care.

The Seattle staff was unable to posit any precise
opinion as to the amount of domiciliary care required by
claimant. Rather, the Seattle group concluded that before
any conclusive determination on this issue could be reached,
two recommendations should be implemented:

(1)
Modification in the medicines given
claimant; and


(2)
a comprehensive rehabilitation program (to be initiated after the medication modification had been


completed).

Insurer accordingly argues that based on the Seattle
report, claimant may "improve" to the point where domiciliary
care is perhaps even unnecessary. Thus, concludes the
argument, any determination of domiciliary care cannot be
reached until the Seattle group's recommendations have been
attempted. Applying this argument to our Carlson test,
insurer highlights the second factor and asserts that the
preponderance of the credible medical evidence does not
demonstrate the necessity of domiciliary care. Rather, the
weight of the evidence demonstrates that such a decision was
premature.

Balanced against the conclusions of the Seattle staff

are the recommendations of Drs. Susan Bertrand and Patricia
Webber. Dr. Bertrand is a psychiatrist who specializes in
rehabilitative medicine. She practices in Missoula, and has
been involved in claimant's case since November 1983. Dr.
Webber, also of Missoula, is a psychologist specializing in
rehabilitative psychology and has treated claimant since
March 1983. Both doctors testified that claimant requires
twenty-four hour a day supervision.

Thus, we are faced with conflicting evidence on this
issue. We note that since most of the critical evidence
presented on this issue was entered by deposition, this Court
is considered to be in as good a position as the WCC to judge
the weight to be given such testimony. Shupert v. Anaconda
Aluminum Co. (Mont. 1985), 696 P.2d 436, 439, 42 St.Rep. 277,
281-82.

Our reading of the record persuades us that the
preponderance of the credible medical evidence demonstrates
that an award of domiciliary care was warranted in this case.
We base this conclusion on several factors.

First, this award was supported by the recommendations
of Drs. Bertrand and Webber, the two doctors who have had the
longest association with claimant's case. While we recognize
the excellence of the Seattle staff,3 we must also recognize
that those doctors examined claimant for only two weeks,
albeit intensively, and conducted the examination in a
controlled environment.

3 In raising this point, we must point out that Dr.
Bertrand enjoyed a three-year residency in physical
medicine and rehabilitation at University Hospital.

By contrast, Drs. Bertrand and Webber have each treated claimant since 1983 and have enjoyed the opportunity to witness claimant adapting to his everyday environment. In short, the record reveals that Drs. Bertrand and Webber have had a much more extensive association with claimant's case.
This fact was acknowledged by the Seattle staff. While
the members of the Seattle group may have had reservations
about the need for domiciliary care, in the end they deferred
to the opinions of Drs. Bertrand and Webber because of the
latters' long-term relationship with claimant. Dr. David
Shuster, claimant's resident physician on the Seattle staff,
admitted that Dr. Bertrand is in a better position to
evaluate claimant's condition. Representative of the Seattle
staff's conclusions on the necessity of domiciliary care was
this statement by Dr. Justice Lehmann, Chairman of the
Department of Rehabilitation at University Hospital and
attending physician to claimant during claimant's
examination, when asked if claimant requires twenty-four hour
a day care:

No, I don' t have any opinion because I
really don't know. I think it is highly
unlikely that he needs twenty-four-hour-
a-day care but I don1 t have any factual
basis for that, that I can say he does
need it, or he doesn't need it and how
much he needs it.

In essence, we find more persuasive the specific
recommendations of the doctors who have worked the longest
and most closely with the claimant.

Second, even if the Seattle staff's recommendations are
implemented, it is disputed whether the necessity of
domiciliary care would be abated. Dr. Lehmann testified he
could not predict the ultimate effect of the implementation
of these recommendations. And while Dr. Vernon Neppe,

neuropsychiatrist with the Seattle team, predicted very

favorable results, Dr. Bertrand stated that even if

successful, these recommendations would probably not change

claimant's need for domiciliary care. Dr. Bertrand stated:

I don't think that those drugs
[recommended by the Seattle staff], if
they were used and were used
successfully, would affect the amount of
domiciliary care he requires. After
reviewing Dr. Neppe's deposition, as well
as his report, those--and having
conferred with one of our local
psychiatrists who is very familiar with
the use of those medications in persons
with organic brain syndrome, those
[drugs] are for control of his emotional
outbursts, and if they were successful,
that would make Gary's life more
comfortable. However, Gary's other
problems would continue to exist and
those are problems with abstract
reasoning, with short-term memory,
because those are not--those don't have
anything to do with the emotional system
that Propranolol or the Tegretol,
Carbamazepine, would affect. It would
not affect his need for supervision.

Finally, we must note that any benefit which might
result from implementation of the Seattle team's
recommendations would be offset, to some degree, by the
detrimental effects of continued litigation. As the WCC
noted, medical personnel involved with this case have
repeatedly stressed that uncertainty, caused in part by this
lengthy litigation, produces definite negative effects on
claimant.

In sum, for the reasons stated, we find the
preponderance of the credible medical evidence demonstrates
that domiciliary care is necessary as a result of the
accident.

Insurer next argues that this domiciliary care award is

not supported by substantial credible evidence. While
acknowledging the injuries suffered by claimant, insurer
contends claimant has retained capabilities that belie a need

for twenty-four hour a day care.
We cannot accept insurer's argument in full. Dr.
Bertrand testified that claimant's physical abilities may
make care even more difficult:

[wlhen you consider how physically active
Gary is and how physically well he
appears, that he is capable of doing lots
of things, but not doing them in a safe
or organized fashion. And he really
requires someone else providing his
overall thinking ability. He needs
someone monitoring his level of
tiredness, and to do it requires input
from another individual to maintain him.
Especially, with his emotional ability
and his ability of not understanding
situations he gets himself into trouble.
He really requires looking after and that
absorbs the time of another, and in this
case, usually Candy. So that even though
he's totally impaired, he's even more
impaired when that means that he absorbs
time and energy from someone else.

While it is agreed that claimant need not be supervised

every minute, the record supports the conclusion that during

the day someone must constantly be available to him. Stated

Dr. Bertrand:

Not everyone who is supervised every
minute needs intervention every minute.
But it's the unpredictable nature of the
need that demands that there be someone
available to meet the need when it
arises.

As the WCC correctly noted, it is this constant availability that must be compensated. In Texas Employer Insurance Association v. Choate (Tex.App. 1982) , 644 S.W. 2d
112, an insurer argued that a claimant's spouse should only

be compensated for the actual time she spent caring for her

husband. In rejecting that argument, that court stated:

The more practical problem with the
argument is that it ignores the realities
of the situation. Mrs. Choate cannot set
aside 40 minutes a day, take care of
Choate and then go on to other things.
She must be available to meet his need
during the entire time he is at home and
awake. As the company's own witness
admitted, a third person hired to do what
Mrs. Choate does could not be hired or
compensated on the 40 minutes per day
basis now advanced by the company;
instead such a person would be hired by
the day or the week and paid for the time
during which he or she is available, not
just the time spent actually helping
Choate.

Choate, 644 S.W.2d at 116. Accord, Standard Blasting & Coating v. Hayman (Fla.App. 1985), 476 So.2d 1385, 1387; Brown v. Eller Outdoor Advertising Company (Mich. App. 1982), 314 N.W.2d 685, 688. We conclude there is substantial evidence to support the court's finding.
C

Finally, insurer asserts that the $7.00 per hour rate
of compensation fixed by the WCC is unsupported by
substantial credible evidence. We disagree. This rate was
based upon the testimony of Linda Geiger, a care management
services nurse who supervises the Care Management Department
at Community Hospital in Missoula. In her position, Linda
assesses disabled patients and determines the scope and

breadth of services required by these patients. She appears

to be very well qualified to assess the need for, and cost
of, domiciliary care and her testimony provides ample
evidence in support of the WCC's decision.

ina ally, claimant contends the lower court's
determination that insurer is liable for this domiciliary
care not from the date of claimant's release from the
hospital but from the date this issue was raised by the WCC
is incorrect.

We have had difficulty with this issue. The first step
of the Carlson test requires that the employer know of the
employee's need for medical services at home. Some courts
faced with this issue have imputed a type of constructive
notice upon an employer, either because of the severity of
the industrial injury or because a representative of the
employer had knowledge that domiciliary care would be
required. See Balsano v. Fischer Body Division, General
Motors Corporation (Mo.App. 1972), 481 S.W.2d 536; Stephens

v. Crane Trucking, Inc. (Mo. 1969), 446 S.W.2d 772. While
these cases can be distinguished, we agree that an employer
may be put on notice of the employee's need for medical
services because of the severity of injury. Need for
domiciliary care must be supported by medical evidence, and
we find it is.

We believe such is the situation in this case. Given
the unquestioned severity of the injury, the degree of
medical attention claimant required while in the hospital and
the permanence of the resulting disabilities, we find that
the employer had notice of claimant's need for home nursing
services at the date claimant was released from the hospital.

We accordingly hold that Candice's domiciliary care should be
compensated from March 3, 1983.
We remand this case to the WCC for an order consistent
with this opinion.

Mr. Justice L. C. Gulbrandson, dissenting in part:

I concur with all of the foregoing opinion except the
extension of the Carlson opinion to now impute constructive
notice of the need for medical services at claimant's residence.

I would not make the award for domiciliary care retro-
active, but would affirm the Worke
on this issue.

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