Thomas Judge v. R&T Construction Company

• Court: Court of Appeals of Virginia
• Decided: May 2, 1995
• Docket: 1515944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff Argued at Alexandria, Virginia

THOMAS JUDGE

v. Record No. 1515-94-4 MEMORANDUM OPINION * BY JUDGE JOHANNA L. FITZPATRICK R & T CONSTRUCTION COMPANY AND MAY 2, 1995 MARYLAND CASUALTY COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Benjamin J. Trichilo (Lewis, Trichilo, Bancroft, McGavin & Horvath, P.C., on briefs), for appellant. Charles P. Monroe (Frank R. Kearney; Mell, Brownell & Baker, on brief), for appellees.

Thomas Judge (claimant) appeals the commission's decision:

(1) denying his wife, Patricia Judge (Mrs. Judge), additional

reimbursement for nursing services performed from 1987 to 1993,

and (2) refusing to increase Mrs. Judge's hourly wage. He argues

that: (1) Mrs. Judge deserves additional wages for time spent

assisting the nurses from Western Medical Services (Western) and

picking up claimant's prescriptions, and (2) her hourly wage

should be increased from nine dollars to fifteen dollars. We

affirm the commission.

The facts are not in dispute. On October 28, 1981, claimant

was involved in a work-related accident that rendered him a

respirator-dependent quadriplegic. Maryland Casualty Company

(insurer), insurance carrier of R & T Construction Company

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. (employer), delegated the provision of in-home nursing care to

Western. This Court affirmed the commission's decision requiring

employer to provide twenty-four hour home nursing care and

allowing Mrs. Judge to be reimbursed for care provided in

emergency situations. Judge v. Whitmer, 6 Va. App. 152, 155-56,

366 S.E.2d 713, 715-16 (1988).

Claimant seeks reimbursement of $41,432.85 for services

provided by Mrs. Judge during the period August 1, 1987 to

February 28, 1993 and requests an increase in her hourly wage

from $9 to $15 for services after January 1, 1993. Insurer paid

Mrs. Judge for services provided when a Western nurse was

unavailable during the period in question. Beginning in December 1991, Mrs. Judge reviewed the nurses'

notes and her own time sheets and reconstructed the additional

time she spent assisting Western nurses and picking up claimant's

prescriptions. The summaries of additional hours prepared by

Mrs. Judge merely list hours worked and do not specify the

services performed. Claimant's doctor, Dr. John E. Toerge,

reviewed Mrs. Judge's reimbursement claim and verified the

medical necessity of her services. Dr. Toerge also testified

that two people were needed for certain transfers and that he

instructed Mrs. Judge to check claimant's skin condition on a

daily basis. Insurer offered to have the prescriptions mailed

directly to claimant's home, and that alternative was rejected.

Insurer's representative, Erica Mortland, testified that

2 insurer pays Western $37.50 per hour for RNs and $30.75 per hour

for LPNs. Dr. Toerge testified that the pay range for attendant

care in an urban setting was $10 to $20 per hour. Mrs. Judge is

not a trained nurse but has received some specialized training

regarding her husband's care.

The commission found that: (1) insurer properly reimbursed

Mrs. Judge "for time she attended her husband when regularly

scheduled nurses were unavailable"; (2) Mrs. Judge's

documentation of her additional services was not persuasive; (3)

insurer was not responsible for her mileage and time spent

picking up claimant's prescriptions; (4) Mrs. Judge failed to

show an increase in her hourly wage was justified; and (5) Mrs.

Judge's wages should not be based on the wages of either RNs or

LPNs. On appeal, "we review the evidence in the light most

favorable to the prevailing party." R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

"Factual findings of the . . . [c]ommission will be upheld on

appeal if supported by credible evidence." James v. Capitol

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488

(1989).

We cannot say, as a matter of law, that the commission erred

in denying additional reimbursement and a wage increase.

Credible evidence supports the commission's findings that: (1)

Mrs. Judge was not entitled to any additional reimbursement, and

3 (2) Mrs. Judge's wages should not be increased to fifteen dollars

per hour. Mrs. Judge's summaries of additional hours claimed are

speculative and do not indicate which services were performed and

how long each service took. Dr. Toerge asked Mrs. Judge to check

claimant's skin condition and stated that two people were

necessary for certain transfers, but the record is unclear

concerning how much of Mrs. Judge's time was devoted to these

services. Insurer has already reimbursed Mrs. Judge for her

services provided when Western personnel were not available. We

also affirm the commission's denial of reimbursement for picking

up prescriptions because the time and cost incurred could have

been avoided by mailing the medications. Additionally, the commission's refusal to increase Mrs.

Judge's hourly wage is supported by credible evidence. This

Court held that a spouse may receive reimbursement for necessary

medical attention only if "there is a means to determine with

proper certainty the reasonable value of the services performed

by the spouse." Warren Trucking Co., Inc. v. Chandler, 221 Va.

1108, 1116, 277 S.E.2d 488, 493 (1981). Mrs. Judge failed to

establish the "reasonable value of the services performed," and

information about reasonable wages for a trained nurse was

irrelevant in determining the value of an untrained spouse's

services.

Affirmed.