dissenting.
I respectfully dissent from the majority’s opinion. I would reverse and remand this case for the Commission to determine which services offered by Timber Ridge would be provided for the purpose of “tending or ministering to” David Pack’s compensable brain injury and award an appropriate amount attributable solely to those services that qualify as nursing services.
In addition to finding that the employer is not liable for residential placement at Timber Ridge, the Commission found that “ongoing therapeutic, recreational, and educational activities” offered by the facility are not “nursing services.” While I agree with the majority that the employer is not liable for “residential placement” at Timber Ridge, to the extent that refers to lodging, I think it is entirely too broad to assert that Timber Ridge provides no services that qualify as compensable nursing services. I recognize that, under current statutory law, the employer is not liable for custodial care; however, I believe that medication evaluation and monitoring and those services aimed at stabilizing Pack’s cognitive regression and maintaining his current level of mental functioning qualify as compensable nursing services. Medical treatments that are required to stabilize or maintain an injured worker are the responsibility of the employer. Martin Charcoal, Inc. v. Britt, 102 Ark.App. 252, 284 S.W.3d 91 (2008) (citing Artex Hydrophonics, Inc. v. Pippin, 8 Ark.App. 200, 649 S.W.2d 845 (1988)).
The majority focuses much of its attention on the Volperts’ apparent motives for seeking services from Timber Ridge and on the assertion that Pack’s condition has not changed since this court’s opinion in Pack I, 60 Ark.App. 82, 959 S.W.2d 415 (1997), in that Pack still requires verbal intuitively know to do. I do not believe these particular concerns are germane to the issue on appeal, which is whether there is any substantial evidence from which the Commission could conclude that none of the services provided by Timber Ridge qualify as compensable nursing services entitling Pack to an award of benefits. I do not think the Commission’s decision displays a substantial basis for the denial of relief.
Dr. Gary Souheaver’s examination of Pack in 2007 revealed that Pack is “cognitively quite handicapped” and has “very impaired memory.” Following his brain injury in 1991, Pack’s full-scale IQ was 80, which was classified as below average, and by 2007, Pack’s full-scale IQ had dropped fifteen points to the clinically retarded level. The majority suggests that Pack’s condition has not changed much between 1997 and today. I cannot agree in light of Dr. Souheaver’s undisputed testimony regarding Pack’s fifteen-point drop in his full-scale IQ.
Cited in the Commission’s opinion is Dr. Stevens’s assessment of Pack in 1991, wherein Dr. Stevens states, “At some point in the not to [sic] distant future I would recommend that [Pack] be placed in a head injury rehabilitation center, where he can receive intensive retraining that may assist him in recovering some cognitive abilities.” Timber Ridge offers precisely this type of retraining from which Pack could benefit.
Timber Ridge Administrator Robbie McDaniel testified that the goals at Timber Ridge include providing “professional services in nursing or medical care and monitoring that [residents] will need on an ongoing basis, and to try to do the best we can to prevent functional regression over a period of time.” McDaniel expounded, “We encourage them to be involved in cognitive tasks to work their brains, to do things and to not just sit.” It seems clear to me that Timber Ridge provides services aimed at “tending or ministering to” Pack’s brain injury, which is Arkansas’s legal definition of “nursing services.” This court has noted that “nursing services” are those rendered in tending or ministering to another in sickness or infirmity. Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W.2d 138 (1977).
At the very least, Timber Ridge provides medication evaluations and monitoring, which I believe qualify as “nursing services,” given that these services require some degree of medical skill and training. Dr. Souheaver specifically testified that Pack needs “to be evaluated with respect to his medications on a fairly regular basis.... ” Further, I believe that, in the context of a brain injury, “cognitive orientation” and other “cognitive tasks” provided as “ongoing therapeutic activities,” as described by McDaniel, should be considered compensable “nursing services” as well. External treatments such as bandaging, wound cleaning, injections, hot baths, physical therapy and other traditional nursing services recognized by this court will neither relieve Pack’s symptoms nor improve his mental status. Rather, Pack needs cognitive treatment for his brain injury. Pack’s need for verbal cues, his significantly impaired memory, and his marked cognitive regression are undoubtedly attributable to the compensable brain injury Pack suffered in his employment for Little Rock Convention & Visitors Bureau in 1991. It follows that the employer should be liable for cognitive treatment Pack would receive at Timber Ridge.
Finally, the majority points to Dr. Souh-eaver’s testimony that Pack does not need to be placed in a nursing home. Although care at Timber Ridge is available on a twenty-four-hour basis, Timber Ridge is not a nursing home. It is a post-acute brain injury treatment and rehabilitation facility with a program specializing in care for the considerable limitations Pack faces every day as a result of his brain injury.
The majority writes that, “even assuming that the therapies offered at Timber Ridge are in the realm of nursing services and not simply ‘cues,’ Timber Ridge’s administration declined to carve out the costs of such therapies from other non-nursing services.” Although the majority sees no basis, in law or fact, upon which the Commission may determine the value of the nursing services offered at Timber Ridge, I respectfully disagree. Despite McDaniel’s inability to dissect the facility’s comprehensive per-diem rate of $600,1 think the Commission is perfectly capable of assigning a monetary value to all aspects of care provided by Timber Ridge. In fact, this court ordered the Commission to do precisely that in Porter, supra, cited by the majority, when it remanded the case to the Commission “with direction to make a determination as to what portion of the total cost to appellant at the ‘Our Way’ facility is attributable solely to those services and apparatus required to be furnished by the employer under § 81-1311 and to enter its award against the appellant in that amount.” Porter, 6 Ark.App. at 160, 639 S.W.2d at 366-67. Likewise, in Tibbs v. Dixie Bearings, Inc., 9 Ark.App. 150, 654 S.W.2d 588 (1983), this court reversed and remanded with directions to the Commission to determine the amount of compensation to be awarded for nursing services. I do not believe a “second bite at the apple” is necessary because McDaniel’s testimony provides an adequate range to assist the Commission in determining the value of services provided by Timber Ridge, i.e., somewhere between zero and six hundred dollars.
I would reverse the Commission’s ruling that Timber Ridge does not offer any com-pensable nursing services for Pack because I believe medication monitoring is a nursing service and that cognitive activities that could help stabilize and maintain Pack’s current level of brain function should be compensable as well, especially when giving the workers’ compensation chapter a liberal construction in accordance with its remedial purposes under Act 10 of 1986, Second Extraordinary Session, codified at Arkansas Code Annotated section 11-9-704(c)(3) (1987).2 Further, I believe this court has the authority to remand this case for the Commission to determine what portion of Timber Ridge’s per-diem rate is attributable solely to com-pensable nursing services.
I respectfully dissent.
HART, HOOFMAN, and BROWN, JJ., join.
. Given that the injury occurred in 1991, the law in effect at that time governs.