Exposures for nursing services provided by a family member can surpass $1 million over the life of the claim.
A recent case from the Workers Compensation Court of Appeals, highlighted an important lesson for employers and insurers in handling claims that include family provided nursing services. The lesson being that obtaining an expert to opine on the hours of nursing services required, as well as the appropriate value of those services, can significantly reduce the exposures for family nursing services over the life of the claim, in some cases by hundreds of thousands of dollars.
In Peterson v. NSP/Xcel Energy, the Employee sustained an admitted permanent injury and received family provided nursing services from his wife beginning in 1989. The Employee filed a medical request in 2021, for reimbursement of the family provided nursing services retroactively back to 1989. The parties did not dispute that some services were reasonable and necessary. However, a disagreement arose over the amount of care the Employee required as well as the value of those services dating back to 1989.
The Employee’s claim for family provided nursing services was based on the report of Linda Graham, RN. In her report, Ms. Graham valued the nursing services provided by the Employee’s wife at the cost that a home healthcare agency would charge for the same services. That ranged from $9.00 per hour beginning in 1989 to $343 per day by 2020. In total, she concluded that the market value of the services rendered by the Employee’s wife from 1989 through the year 2020 was $1,077,830.00.
Rather than voluntarily paying based on the hours and rates asserted by the Employee’s expert, the Self-Insured Employer, (Represented by attorney Gina Uhrbom of our office) obtained their own expert, Courtney Mitchell, who opined on the amount of nursing hours the Employee required as well as the value of those services.
Ms. Mitchell provided a detailed report ultimately concluding the Employee required far less hours than was estimated by the Employee’s expert, Ms. Graham, and that the agency rate she had assigned was also inappropriate. Instead, Ms. Mitchell based the hourly rate on that which a personal care attendant would earn. On that basis, she concluded that the appropriate hourly rate beginning in 1989, was $5.59 per hour, and $12.10 per hour by 2020. Based on those rates, and her opinion regarding the amount of nursing services the Employee required, she estimated that the market value of the services rendered by the Employee’s wife from 1989 through the year 2020 was $88,022.96. A staggering $989,807.04 less than the Employee’s expert.
The dispute ultimately proceeded to hearing. At hearing, the parties introduced the narrative reports of Ms. Graham and Ms. Mitchell both of whom also testified. Following the hearing, the Compensation Judge adopted the opinions and conclusions of the Self-Insured Employer’s expert, Ms. Mitchell, with regard to the number of hours and value of the family provided nursing services. The Employee appealed.
On appeal, the Employee objected to the foundation of Ms. Mitchell’s opinions. The Court disagreed, noting that Ms. Mitchell interviewed the Employee and his wife in person for two and half hours, was able to observe the Employee, reviewed the Employee’s testimony from two prior depositions, listened to their hearing testimony, and reviewed voluminous medical records. Furthermore, the Court noted that her report and testimony pointed to specific medical records to support her opinion as to the number of hours and care the Employee needed on a yearly basis.
The Employee also disputed the value of the services arguing the Compensation Judge should have adopted the agency rate provided by the Employee’s expert Ms. Graham. Again, the Court disagreed, instead agreeing with Ms. Mitchell’s testimony that the hourly rate for an agency was inappropriate because the Employee’s wife did not have overhead costs associated with an agency. There was sufficient testimony on why using an agency rate would improperly inflate the value of the services provided. They also noted that the hourly rates Ms. Mitchell used were based on the United States Bureau of Labor and statistics, which provided median wage rates based upon the Employee’s geographical location.
Ultimately, the Court held there was substantial evidence to support the Compensation Judge’s findings regarding both the amount of nursing services to which the Employee is entitled and the value of those services. This significantly reduced the family nursing services exposures for the Self-Insured Employer.
One important take away from this case is that employers and insurers should not voluntarily pay the agency rate for in-home nursing services provided by a family member. And furthermore, that obtaining an expert to prepare a detailed analysis of the number of hours of family nursing services required and the value of those services can significantly reduce exposures for family nursing services over the life of a claim.
If you have questions about in home nursing services or other workers’ compensation matters, please reach out to me, Gina Uhrbom who represented the Employer in the above case, or any of my colleagues here at Brown & Carlson.
