Apparatus, Attendant Care and Similar Services

Where the administrative law judge found, based on a doctor’s opinion, that claimant would be “better off” remaining with his family than being cared for in a nursing home, the Board rejected employer’s argument that it should be liable only for the costs of nursing home care and affirmed the administrative law judge’s decision holding employer responsible for paying for home health care services, as employer is liable for the costs of keeping claimant at home. The Board also affirmed the administrative law judge’s conclusion that employer must reimburse claimant’s wife for home health care services she paid for in excess of 8 hours per day because there is no evidence that the parties’ informal agreement that employer was liable for only 8 hours of care per day was approved by a deputy commissioner or administrative law judge. Falcone v. General Dynamics Corp., 21 BRBS 145 (1988). The Board affirmed the administrative law judge’s finding that modifications to claimant’s house necessitated by his disability, including ramps, widened doorways, handicapped-accessible plumbing fixtures, etc., are covered under Section 7. Dupre v. Cape Romain Contractors, Inc., 23 BRBS 86 (1989). The Board rejected the Director’s contention that only the district directors, by delegation of the Secretary, have the authority to determine the appropriateness of medical care, in this case consisting of housekeeping assistance, under their authority to supervise medical care in Section 7(b) and 20 C.F.R. §702.412(b). The Board held that a claim for medical benefits that raises disputed factual issues such as the need for specific care or treatment for a work-related injury must be referred to an administrative law judge for resolution of the disputed factual issues in accordance with Section 19(d) of the Act and the APA. This interpretation is supported by the regulations at 20 C.F.R. §§702.315, 702.316. The Board distinguished its holding in Toyer, 28 BRBS 347, as that case involved solely a discretionary determination under Section 7(d)(2). Sanders v. Marine Terminals Corp., 31 BRBS 19 (1997)(Brown, J., concurring). Where claimant was severely injured in a work accident and all medical personnel who evaluated him recommended 24-hour supervision for his safety, the Board held that the administrative law judge erred in holding employer liable for less than 24 hours of paid care per day. The Board held that, while claimant was not in need of 24 hours of paid professional care each day, the recommendation required that employer pay claimant’s family, albeit at a reduced rate, for their time in caring for claimant for the remainder of the 24 hours each day; the administrative law judge should not have required them to care for claimant for free. Thus, as it was uncontradicted that claimant needs 24 hours of care each day, the Board held employer liable for such care. Employer’s liability commences after the request for such care was made and not merely upon claimant’s discharge from the hospital. Carroll v. M. Cutter Co., Inc., 37 BRBS 134 (2003) (Smith, J., concurring  and dissenting), aff’d on recon. en banc, 38 BRBS 53 (2004) (Dolder, C.J., and Smith, J., dissenting), aff’d, 458 F.3d 991, 40 BRBS 53(CRT) (9th Cir. 2006).

 On reconsideration en banc, the Board affirmed its decision that the issue before it was a legal issue and that the administrative law judge erred in disregarding the undisputed evidence that claimant is in need of 24 hours of supervision per day. Because the evidence is undisputed and because Section 7(a) mandates that employer’s liability for medical care is to be based on the care necessitated by the injury, the Board held that employer is liable for 24 hours per day of attendant care. Carroll v. M. Cutter Co., Inc., 38 BRBS 53 (2004) (en banc) (Dolder, C.J., and Smith, J., dissenting), aff’g 37 BRBS 134 (2003) (Smith, J., concurring and dissenting), aff’d, 458 F.3d 991, 40 BRBS 53(CRT) (9th Cir. 2006). The Ninth Circuit affirmed the Board’s interpretation of Section 7(a), which bases employer’s liability for attendant care exclusively on a determination of the care required by the injury. Thus, the court affirmed the Board’s holding as a matter of law that where it is undisputed that claimant needs 24-hour attendant care, Section 7(a) expressly mandates that employer is liable for that required care. M. Cutter Co., Inc. v. Carroll, 458 F.3d 991, 40 BRBS 53(CRT) (9th Cir. 2006). The Board affirmed the award of medical benefits as substantial evidence supported the administrative law judge’s finding that the additional open MRI testing, back surgery and orthopedic supplies, consisting of a cane and back support, were recommended by the physicians of record and therefore necessary for the treatment of claimant’s work-related back injury. J.R. [Rodriguez] v. Bollinger Shipyard, Inc., 42 BRBS 95 (2008), aff’d sub nom. Bollinger Shipyards, Inc. v. Director, OWCP, 604 F.3d 864, 44 BRBS 19(CRT) (5th Cir. 2010).

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