Sabino Carbajal v. ica/phelps dodge/gabb Robbins ( 2009 )

SUPREME COURT OF ARIZONA
En Banc
SABINO CARBAJAL, ) Arizona Supreme Court
) No. CV-08-0359-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-IC 07-0054
THE INDUSTRIAL COMMISSION OF )
ARIZONA, ) ICA Claim
) No. 99326-000148
Respondent, )
) Carrier Claim
PHELPS DODGE CORP., ) No. 48846-57065
)
Respondent Employer, )
)
GAB ROBINS NORTH AMERICA, ) O P I N I O N
)
Respondent Carrier. )
_________________________________ )
Appeal from the Industrial Commission of Arizona
The Honorable Anthony F. Halas, Administrative Law Judge
AWARD SET ASIDE
________________________________________________________________
Opinion of the Court of Appeals, Division One
218 Ariz. 578, 190 P.3d 737 (App. 2008)
VACATED
________________________________________________________________
LAW OFFICE OF AIDA J. RICO Phoenix
By Aida J. Rico
And
LAW OFFICES OF CHARLES M. BREWER, LTD. Phoenix
By David L. Abney
Attorneys for Sabino Carbajal
JARDINE, BAKER, HICKMAN & HOUSTON, P.L.L.C. Phoenix
By Scott H. Houston
Attorneys for Phelps Dodge Corp. and GAB Robins North America
BRIAN CLYMER ATTORNEY AT LAW Tucson
By Brian I. Clymer
Attorneys for Amicus Curiae Southern Arizona Workers
Compensation Claimants’ Attorneys’ Association
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 An Arizona workers’ compensation statute requires
payment for “medical, surgical and hospital benefits or other
treatment, [or] nursing . . . reasonably required . . . during
the period of disability.” Ariz. Rev. Stat. (“A.R.S.”) § 23-
1062(A) (1995). We have been asked to determine whether certain
services provided by an injured worker’s spouse are compensable
under this statute. We hold that the compensability of these
services depends on the nature of the care provided and not the
status or identity of the service provider. We therefore vacate
the opinion below and set aside the Industrial Commission award.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶2 In November 1999, Sabino Carbajal suffered an
industrial injury, which caused cognitive problems and partial
paralysis on his right side. As a result, he requires full-time
supervision and intermittent attendant assistance.
¶3 Mr. Carbajal, who now resides in a full-time care
facility, initially lived at home following the accident.
During that time, his employer, Phelps Dodge, and its workers’
compensation carrier (collectively the “Carrier”) provided
attendant care for Mr. Carbajal. Each day, an attendant arrived
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at 6:00 a.m. or 7:00 a.m., helped Mr. Carbajal from bed, bathed
and dressed him, and helped him perform simple exercises. On
weekdays, the attendant transported Mr. Carbajal to an adult day
care rehabilitation center and returned him home at about 3:30
p.m. On Saturdays, after performing the morning routine, the
attendant left Mr. Carbajal with his wife at 9:30 a.m., and on
Sundays took him to church and returned him at 1:00 p.m. Each
night between 6:30 p.m. and 9:30 p.m., the attendant assisted
Mr. Carbajal with range of motion exercises and prepared him for
bed. The Carrier also provided a nurse who visited weekly and
was on call for significant health issues.
¶4 At all other times, Mr. Carbajal was under his wife’s
care. In addition to supervising her husband during these
hours, Mrs. Carbajal gave him his medication in the morning;
specially prepared his food; cleaned him when he was returned
from day care soiled; and moved him between his wheelchair and
his bed, the toilet, or his recliner. When the scheduled
attendants did not arrive, Mrs. Carbajal performed their
assigned tasks. Several times each night Mrs. Carbajal checked
the oxygen levels on Mr. Carbajal’s sleep apnea mask and
sometimes helped him to the bathroom or cleaned him if he soiled
himself. The Carrier paid for Mrs. Carbajal to receive training
on monitoring Mr. Carbajal’s oxygen levels and transferring him
from his bed to his wheelchair. When Mrs. Carbajal took out-of-
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town trips, Mr. Carbajal was placed in a 24-hour care facility.
¶5 Mr. Carbajal, through his legal guardian, requested
payment for attendant care services provided by Mrs. Carbajal,
which the Carrier denied. Following an Industrial Commission
hearing, the Administrative Law Judge (“ALJ”) denied
compensation, concluding that Mrs. Carbajal’s services were
“akin to the day-to-day duties assumed by a spouse in accord
with the marriage commitment.” The ALJ reasoned that whether “a
paid attendant would otherwise be required” was immaterial to
whether the statute requires compensation. Mr. Carbajal filed a
statutory special action. See A.R.S. § 23-951(A) (1995); Ariz.
R.P. Spec. Act. 10.
¶6 A divided panel of the court of appeals affirmed.
Carbajal v. Indus. Comm’n, 218 Ariz. 578, 584, ¶ 24, 190 P.3d
737, 743 (App. 2008). The court interpreted the statutory
phrase “other treatment” to include only skilled attendant care
services that fall within the class of “medical, surgical and
hospital benefits.” Id. at 583-84, ¶¶ 22-23, 190 P.3d at 742-
43. Judge Kessler dissented, concluding that the majority
incorrectly narrowed the covered services and placed a burden on
the claimant that should have been borne by the employer. Id.
at 587, 592, ¶¶ 40, 55, 190 P.3d at 746, 751 (Kessler, J.,
dissenting).
¶7 We granted Mr. Carbajal’s petition for review because
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this case presents an issue of first impression and statewide
importance. See ARCAP 23(c). We have jurisdiction under
Article 6, Section 5(3) of the Arizona Constitution and A.R.S.
§ 12-120.24 (2003).
II. DISCUSSION
¶8 Arizona Revised Statutes Section 23-1062(A) requires
compensation for “medical, surgical and hospital benefits or
other treatment, nursing, medicine, surgical supplies, crutches
and other apparatus, including artificial members, reasonably
required at the time of the injury, and during the period of
disability.” Two statutory requirements are at issue here: To
be compensable, the services must fall within one of the
categories listed in the statute, and the services must be
“reasonably required.”
A. The Court of Appeals Opinion
¶9 In addressing the first requirement, the court of
appeals focused on the term “other treatment” and applied the
doctrine of ejusdem generis1 to determine its meaning. Carbajal,
218 Ariz. at 581-82, ¶¶ 13, 17, 190 P.3d at 740-41. Analyzing
the phrase “medical, surgical and hospital benefits or other
1
Under the ejusdem generis doctrine, “general words which
follow the enumeration of particular classes of persons or
things should be interpreted as applicable only to persons or
things of the same general nature or class.” State v. Barnett,
142 Ariz. 592, 596, 691 P.2d 683, 687 (1984).
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treatment,” the court determined that “other treatment” is
limited to “other [medical] treatment.” Id. at 582, ¶ 17, 190
P.3d at 741 (alteration in original). The majority thus
concluded that the statute covers only those services that are
“typically performed only by trained attendants.” Id. at 582-
83, ¶ 20, 190 P.3d at 741-42.
¶10 When construing workers’ compensation statutes, we
favor interpretations that make the claimant whole. See
Nicholson v. Indus. Comm’n, 76 Ariz. 105, 108, 259 P.2d 547, 549
(1953). The court of appeals’ interpretation of the statute not
only denies the claimant redress, but effectively renders the
phrase “other treatment” superfluous. See Ariz. Dep’t of
Revenue v. Action Marine, Inc., 218 Ariz. 141, 143, ¶ 10, 181
P.3d 188, 190 (2008) (advising against interpretations that
render statutory words or phrases “meaningless, unnecessary, or
duplicative”). Under the standard set by the court of appeals,
services that qualify as “other treatment” would also appear to
qualify as “medical, surgical and hospital benefits” or
“nursing.” To avoid such duplication, the listed categories in
§ 23-1062(A) should be construed as encompassing expenses not
generally covered by the others.
¶11 The court of appeals majority relied on Hughes v.
Industrial Commission, 188 Ariz. 150, 933 P.2d 1218 (App. 1996),
as support for a narrow construction of the term “other
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treatment.” In Hughes, the claimant sought compensation for
child care services incurred because, as a result of an
industrial injury, she could not care for her child. Id. at
151, 933 P.2d at 1219. The court rejected Hughes’s claim,
concluding that “other treatment” means other medical treatment.
Id. at 154, 933 P.2d at 1222. Hughes, however, addressed a
claim far removed from the types of services covered by the
listed categories. Rather than seeking payment for services to
cure or ameliorate the health effects of her injury, Hughes
sought compensation for services she formerly provided to
another. The court noted this distinction in Hughes, id. at
154, 933 P.2d at 1222, and we read nothing more into its use of
the phrase other “medical treatment.”
¶12 To help it distinguish compensable attendant services
from non-compensable housekeeping duties, the court of appeals
analyzed two opinions from other jurisdictions, Warren Trucking
Co. v. Chandler, 277 S.E.2d 488 (Va. 1981), and Close v.
Superior Excavating Co., 693 A.2d 729 (Vt. 1997). See Carbajal,
218 Ariz. at 581-82, ¶¶ 15-16, 190 P.3d at 740-41.
¶13 Warren Trucking involved a disabled claimant’s request
for compensation for services performed by his spouse in
attending to his needs. 277 S.E.2d at 492. The claimant’s wife
helped him bathe, shave, and put on braces, and she prepared his
meals, drove the car, and maintained the household. Id. at 491.
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When the claimant lost consciousness, his wife revived him. Id.
Virginia’s statute provided benefits for “a physician . . . and
such other necessary medical attention . . . as the nature of
the injury may require.” Id. at 492 (quoting Va. Code Ann.
§ 65.1-88). The Virginia court concluded that under this
statute, to qualify as compensable “medical attention” the
spouse’s care must, among other requirements, be “performed
under the direction and control of a physician” and be “the type
[of care] usually rendered only by trained attendants and beyond
the scope of normal household duties.” Id. at 493. The court
rejected the claim because the care rendered by the wife was not
prescribed by a doctor and was not “of the type usually rendered
only by trained attendants.” Id. at 494.
¶14 In Close, the claimant received a severe head injury
and required 24-hour supervision. 693 A.2d at 730. The
claimant’s wife cared for him at home, including
“administer[ing] and monitor[ing] his medications[,] . . .
alter[ing] the doses [of medication,] . . . log[ging] . . . her
husband’s behavior[, and] monitoring her husband’s seizure
activity and responding appropriately.” Id. The Vermont
statute provided benefits for “reasonable surgical, medical and
nursing services.” Id. at 731 (quoting Vt. Stat. Ann. tit. 21,
§ 640(a)). In concluding that the wife’s services were
compensable, the court rejected the “rigid framework” of Warren
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Trucking, in part because it “would . . . conflict with [its]
longstanding practice of construing the workers’ compensation
statute liberally.” Id. at 732.
¶15 The court of appeals here found Warren Trucking more
persuasive than Close. Carbajal, 218 Ariz. at 583, ¶ 20, 190
P.3d at 742. We conclude, however, as the Vermont Supreme Court
did, that Warren Trucking’s rigid framework does not further the
remedial purposes of workers’ compensation statutes. See 693
A.2d at 732; see also Nicholson, 76 Ariz. at 108, 259 P.2d at
549 (noting that we construe workers’ compensation statutes
liberally “with a view of effectuating their evident purpose of
placing the burden of injury and death upon industry” (quoting
Ocean Accident & Guar. Corp. v. Indus. Comm’n, 32 Ariz. 265,
272, 257 P. 641, 643 (1927))). We find Close more helpful
because the Vermont statute, like the Arizona statute, broadly
covers reasonable surgical, medical, and nursing services.
Compare A.R.S. § 23-1062(A), with Vt. Stat. Ann. tit. 21,
§ 640(a). In contrast, the Virginia statute at issue in Warren
Trucking, which mandated payment only for “a physician . . . and
such other necessary medical attention,” substantially differs
from § 23-1062(A). Warren Trucking, 277 S.E.2d at 492. Warren
Trucking therefore does not assist in interpreting Arizona’s
statute. Under Arizona law, compensability turns on the nature
of the services, not on the identity of the provider.
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B. Nature of Services Provided
¶16 Mr. Carbajal received several hours of attendant care
each week, for which the Carrier paid. Some services rendered
by the attendants, such as dressing and driving Mr. Carbajal,
are not medical or curative treatment, but rather constitute
palliative care.2
¶17 The Carrier acknowledges that A.R.S. § 23-1062(A)
implicitly covers such palliative care. We agree; by extending
compensation for services rendered after a claimant becomes
medically stationary, the legislature intended to include
coverage for reasonably required palliative care. See 1973
Ariz. Sess. Laws, ch. 133, §§ 30, 32 (1st Reg. Sess.) (extending
medical, surgical, and hospital benefits to periods of permanent
2
Palliative care involves managing the claimant’s symptoms
or mitigating the effects of the claimant’s injury. See 5
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law § 94.04 (2008); see also Jackson v. Columbia Pictures, 610
So. 2d 1349, 1351 (Fla. Dist. Ct. App. 1992); O’Donnell v.
Workers’ Comp. Appeal Bd., 831 A.2d 784, 791 (Pa. Commw. Ct.
2003). Palliative care differs from curative treatment, which
is designed to reduce the level of injury or end the disability.
See 5 Larson & Larson, supra, § 94.04. Once a claimant is
“medically stationary,” medical care cannot cure or improve the
claimant’s medical condition. See Hardware Mut. Cas. Co. v.
Indus. Comm’n, 17 Ariz. App. 7, 9-10, 494 P.2d 1353, 1355-56
(1972). Becoming medically stationary demarcates the transition
from the period of “temporary disability” to the period of
“permanent disability.” Id. Once the claimant is medically
stationary, treatment is necessarily palliative rather than
curative because, by definition, it cannot improve the
claimant’s condition. See id.- 10 -
disability).
¶18 Certain services Mrs. Carbajal provided were identical
to those rendered by paid attendants. For example, when
attendants failed to show up, Mrs. Carbajal performed the
services they would have provided, such as bathing and dressing
Mr. Carbajal. The Carrier maintains that although Mrs. Carbajal
performed some of the services provided by paid attendants,
§ 23-1062(A) does not require compensation for Mrs. Carbajal’s
performance of these duties because she is not a licensed health
care provider. We fail to see the connection between licensure
and compensation. There is no suggestion that Mrs. Carbajal
lacks a required license or is otherwise unqualified to perform
the services in question. Nothing in the statute hinges
compensability of services to the fact of licensure, even though
some services compensable under § 23-1062(A) may only legally be
performed by licensed providers.3 Thus licensure of the service
provider is not the touchstone for determining the
compensability of services.
¶19 The Carrier’s claim that services are compensable when
performed by Carrier-provided attendants, but not when performed
by Mrs. Carbajal, therefore must turn on her status as Mr.
3
See, e.g., A.R.S. § 32-1455(A)(1) (2008) (making the
unlicensed practice of medicine a felony).
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Carbajal’s spouse. Yet the statute creates no such distinction.
The statute speaks only in terms of goods and services. The
compensability of services inquiry should focus on the nature of
the services provided, not on the identity of the service
provider. If an injured worker requires services compensable
under § 23-1062(A), then the employer must provide them. If the
employer fails to do so and thus puts that burden on the injured
employee’s spouse, compensation for the necessary services is
required by the statute. Those services provided by Mrs.
Carbajal that would constitute compensable palliative care if
performed by the Carrier-paid attendants are thus compensable.
C. Reasonably Required Care
¶20 Even if services fall within a compensable category,
§ 23-1062(A) does not require compensation for them unless they
are “reasonably required.” The ALJ did not decide whether the
care provided by Mrs. Carbajal was reasonably required because
he found that her services were “not of the type which
necessitates a trained attendant.” He opined that the fact that
“a paid attendant would otherwise be required in Mrs. Carbajal’s
absence” did not bring her services within the scope of § 23-
1062(A) or require the employer to pay for her services.
¶21 The Carrier contends that Mrs. Carbajal’s services
were not required because Mr. Carbajal could have performed many
of the tasks himself. It maintains that she provided these
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services only because he demanded that she do so. Whether the
services were reasonably required is a question of fact that we
leave for the ALJ to address in the first instance. Regnier v.
Indus. Comm’n, 146 Ariz. 535, 538, 707 P.2d 333, 336 (App. 1985)
(citing Lowman v. Indus. Comm’n, 54 Ariz. 413, 419, 96 P.2d 405,
407 (1939)).
III. CONCLUSION
¶22 For the foregoing reasons, we vacate the opinion of
the court of appeals and set aside the Industrial Commission
award. We remand the case to the Industrial Commission for
further proceedings consistent with this opinion.
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
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