WC Case Law Update: Reasonable Notice for Attendant Care
Connie Chandler began working as a cleaner for Atlantic Scrap & Processing in 1994. Atlantic Scrap was a metal recycling facility. On August 11, 2003, Ms. Chandler was walking down a flight of concrete steps when she accidentally fell backwards, striking the back of her head and neck. She suffered a concussion, closed head injury, neck injury, right shoulder injury, and depression as a result of this fall. She was diagnosed with cognitive impairments due to post-concussive syndrome and was also diagnosed with depression. Her cognitive functioning and memory declined significantly after the accident. Ms. Chandler’s intellectual functioning eventually fell to the impaired range. By June 28, 2004, Ms. Chandler was incapable of caring for herself without assistance and could not be left alone. She required constant supervision and attendant care services, which were provided by her husband. On October 27, 2004, Ms. Chandler’s doctor provided the opinion that she needed constant attendant care services. In April 2008, Ms. Chandler’s doctor provided a written note indicating that she was permanently and totally disabled due to her work-related brain injury.
This second Court of Appeals decision focused on interpreting the Supreme Court mandate in regard to the issue of attendant care. This case was previously heard by a deputy commissioner, the Full Commission, the Court of Appeals, and the Supreme Court. The Supreme Court affirmed per curium the Court of Appeals’ decision regarding the reasonableness of the delay in Ms. Chandler’s request for payment of attendant care services and remanded for additional findings in Chandler I. The Court of Appeals in Chandler II held that the only issue for consideration upon remand was whether the Commission erred as to the award of interest for unpaid attendant care. The Court held that the Supreme Court’s mandate was not to be construed to require “magic words” when considering whether a plaintiff had provided a defendant with a request for attendant care within a reasonable amount of time. The Court emphasized that Defendants had actual notice of the need for attendant care less than one month after June 28, 2004. The Court also highlighted that Ms. Chandler’s doctors were selected by Defendants and/or the nurse case manager, that Ms. Chandler’s doctors unanimously agreed that she needed constant attendant care services, and that Ms. Chandler’s mental functioning was at the level of a four-year-old child. Ultimately, the Court interpreted the Supreme Court’s mandate to not require additional consideration of the notice issue for attendant care services.
Risk Handling Hints: The decision in Chandler II provides additional guidance as to the facts the Court will look at when determining whether a plaintiff’s delay in requesting attendant care services is reasonable. Based on this decision, the Court will consider: when a defendant receives notice of the need for attendant care services; whether the medical opinion for attendant care services was provided by a doctor selected by the defendant(s); whether the opinion regarding the necessity for attendant care services is unanimous; the mental functioning of the plaintiff; and whether the plaintiff made attempts to notify the defendant(s) of the need for attendant care services. The Court made mention of the underlying policy for requiring reasonable notice, which is to ensure that an employer is “seasonably notified” when an injured employee seeks new or different medical care because that employer is paying for these medical expenses. If an employer or carrier becomes aware that a medical provider has recommended attendant care services, they should address the issue without delay by either making efforts to find a different provider and/or a second opinion regarding the need for services, or by agreeing to pay compensation for the attendant care services rendered.