SABINO CARBAJAL v ICA/PHELPS DODGE/GABB ROBBINS

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SUPREME COURT OF ARIZONA En Banc SABINO CARBAJAL, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, PHELPS DODGE CORP., Respondent Employer, GAB ROBINS NORTH AMERICA, Respondent Carrier. _________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Arizona Supreme Court No. CV-08-0359-PR Court of Appeals Division One No. 1 CA-IC 07-0054 ICA Claim No. 99326-000148 Carrier Claim No. 48846-57065 O P I N I O N 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 By Aida J. Rico Phoenix And LAW OFFICES OF CHARLES M. BREWER, LTD. By David L. Abney Attorneys for Sabino Carbajal Phoenix 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. 1062(A) (1995). Ariz. Rev. Stat. ( A.R.S. ) § 23- 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. ¶2 In FACTUAL AND PROCEDURAL BACKGROUND 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 facility, Mr. Carbajal, initially who lived now at resides home in a following full-time the care accident. During that time, his employer, Phelps Dodge, and its workers compensation carrier (collectively attendant care for Mr. Carbajal. the Carrier ) provided Each day, an attendant arrived - 2 - 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 attendants did assigned tasks. the oxygen toilet, not or his arrive, recliner. Mrs. When Carbajal the scheduled performed their Several times each night Mrs. Carbajal checked 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- - 3 - 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. hearing, the compensation, Following an Industrial Commission Administrative concluding Law that Mrs. Judge ( ALJ ) Carbajal s denied 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. statutory special action. Mr. Carbajal filed a 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. 43. Judge Kessler Id. at 583-84, ¶¶ 22-23, 190 P.3d at 742dissented, 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 - 4 - 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. ¶8 DISCUSSION 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. be Two statutory requirements are at issue here: compensable, categories listed the in services the must statute, fall and within the one services To of the must be court of reasonably required. A. ¶9 The Court of Appeals Opinion In addressing the first requirement, the 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). - 5 - treatment, the court determined that other limited to other [medical] treatment. P.3d at 741 (alteration in treatment is Id. at 582, ¶ 17, 190 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 favor construing interpretations workers that make compensation the claimant statutes, whole. we 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 nursing. medical, surgical and hospital benefits or 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 - 6 - of the term other treatment. child In Hughes, the claimant sought compensation for care services incurred because, as a result of an industrial injury, she could not care for her child. Id. at 151, claim, 933 P.2d at 1219. The court rejected Hughes s 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 another. compensation for services she formerly provided to 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 Superior Excavating Co., 693 A.2d 729 (Vt. 1997). Close v. See Carbajal, 218 Ariz. at 581-82, ¶¶ 15-16, 190 P.3d at 740-41. ¶13 for Warren Trucking involved a disabled claimant s request compensation for attending to his needs. services performed 277 S.E.2d at 492. by his spouse in The claimant s wife helped him bathe, shave, and put on braces, and she prepared his meals, drove the car, and maintained the household. - 7 - Id. at 491. 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. § 65.1-88). The statute, to spouse s care Id. at 492 (quoting Va. Code Ann. Virginia qualify must, as court concluded compensable among other that medical requirements, under attention be this the 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. ¶14 and Id. at 494. In Close, the claimant received a severe head injury required claimant s 24-hour wife administer[ing] supervision. cared and for 693 him monitor[ing] A.2d at his at 730. home, The including medications[,] . . . alter[ing] the doses [of medication,] . . . log[ging] . . . her husband s activity behavior[, and and] responding monitoring her appropriately. husband s Id. The seizure Vermont statute provided benefits for reasonable surgical, medical and nursing services. § 640(a)). In Id. at 731 (quoting Vt. Stat. Ann. tit. 21, concluding that the wife s services were compensable, the court rejected the rigid framework of Warren - 8 - Trucking, in part because it would . . . conflict with [its] longstanding practice of construing the workers compensation statute liberally. ¶15 Id. at 732. The court of appeals here found Warren Trucking more persuasive than Close. P.3d at 742. Carbajal, 218 Ariz. at 583, ¶ 20, 190 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 Compare reasonable A.R.S. § 640(a). § surgical, medical, 23-1062(A), with Vt. and nursing Stat. Ann. services. tit. 21, 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. Trucking does statute. therefore not assist in interpreting Warren Arizona s Under Arizona law, compensability turns on the nature of the services, not on the identity of the provider. - 9 - 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 implicitly covers such palliative care. compensation medically coverage for services stationary, for reasonably the rendered § 23-1062(A) We agree; by extending after legislature required A.R.S. a claimant intended palliative care. to becomes include 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 to Certain services Mrs. Carbajal provided were identical those rendered attendants by failed to paid show attendants. up, Mrs. For example, performed Carbajal when the services they would have provided, such as bathing and dressing Mr. Carbajal. performed some The Carrier maintains that although Mrs. Carbajal 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 provider is not the Thus licensure of the service 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 3 turn on See, e.g., A.R.S. § 32-1455(A)(1) unlicensed practice of medicine a felony). - 11 - her status (2008) as Mr. (making the 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 provider. provided, not on the identity of the service 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 necessitates a trained attendant. not of the type which 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 § 231062(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 - 12 - 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. ¶22 CONCLUSION 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 - 13 -

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