For years, courts in Alabama held that workers who suffer a job-related injury may not collect compensation for attendant care by family members if it does not serve to improve the disabled employee’s condition. When it serves only to prescribe the facility of independent functioning, the courts held it’s generally not covered, unless it serves to prevent the deterioration of one’s condition.
That changed in 2008 with the decision in Ex parte Mitchell, when the Alabama Supreme Court held this was too restrictive and not in line with legislative intent. Therefore, care that serves to prevent deterioration and preserve function is also covered.
Our Birmingham work injury lawyers understand this was what was at issue before the Alabama Court of Civil Appeals in the case of Alabama Forest Products Industry Workers’ Compensation Self-Insurer’s Fund v. Harris, an appeal that arose from the Marengo Circuit Court.
In this case, the plaintiff suffered a work injury in 1990 to his pelvis and right lower extremity that left him effectively permanently disabled. The following year, an orthopedic surgeon authorized around-the-clock attendant care services as medically necessary.
At that point, the firm that insured the worker’s employer paid his family a monthly stipend, as directed by the doctor. Two years after the accident, he reached maximum medical improvement, and his workers’ compensation claim against his employer was settled, requiring the employer to pay any reasonable medical expenses stemming from the accident.
Over the course of the next two decades, the insurer covered attendant care expenses. Then, in 2011, he asked that his son-in-law, as opposed to his daughter, be designated as his caregiver. The third-party administrator complied with the request, but he later learned the son-in-law had a full-time job and was not living with the plaintiff. A few months later, the administrator informed the injured worker he was no longer sending funds for attendant care.
The worker sued for the care to be paid.
The plaintiff’s doctor, at deposition, said the plaintiff is severely limited in his day-to-day actions, and although he had reached maximum medical improvement much earlier, he will likely need attendant care the rest of his life. The doctor went on to say that care by the man’s family members won’t improve his condition, but it will prevent it from getting worse and allow him to maintain current function. Without the care, the doctor indicated, the patient would otherwise be in a nursing home or become bedridden.
At various points throughout the day, it was revealed, a number of family members pitch in to help the plaintiff with basic tasks, such as getting up, getting dressed, having breakfast, going to the restroom, obtaining medication and groceries, going to the doctor, and paying bills.
The trial court ordered the insurer to pay the attendant care bills, back-dating them to the time they were stopped.
The insurer appealed, arguing that no worker has a right to payment for attendant care, and that the trial court erred in ordering such payments.
In affirming the trial court’s decision, the appellate court ruled that the term “medical care” under the law is to be construed liberally as attendant-care services offered by non-professional family members. Such assistance is covered as long as services are for the purpose of preventing deterioration and helping the injured worker to maintain current function.
Here, although the individual was not receiving 24/7 care, the factual record indicates the severity of his injuries necessitates that he receive help with activities of daily living.
Alabama Forest Products Industry Workers’ Compensation Self-Insurer’s Fund v. Harris, June 13, 2014, Alabama Court of Civil Appeal
Intentional Work Injuries Not Compensable in Alabama, April 8, 2014, Birmingham Work Accident Lawyer Blog
"I am a practicing lawyer who has from time to time referred clients and litigation cases to Cross & Smith for handling. Without exception, the effort and attention to detail by these attorneys have been incredible. I think that is what sets them apart - they leave no stone unturned in their diligent pursuit of justice and fair compensation to those cheated, injured or killed. I highly recommend these guys."
Posted By: Chuck Kelley