Carbajal v. INDUSTRIAL COM'N OF ARIZONA

OPINION

OROZCO, Judge.

¶ 1 This is a special action review of an Industrial Commission of Arizona (ICA) decision denying Sabino Carbajal’s (Claimant) request seeking compensation from Gabb Robbins North America (Carrier) for care provided by Celia Carbajal (Wife) during the times in which no skilled attendant care is provided to Claimant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Claimant sustained severe injuries to his head and spinal cord in an industrial accident on November 4, 1999. As a result of the accident, Claimant has right hemiparesis,1 as well as problems related to his cognitive ability. Claimant is able to ambulate with a wheelchair or a walker. Claimant’s injury was found to be compensable and Carrier accepted his claim for benefits.

¶ 3 In addition to his monthly loss of earning capacity (LEC) entitlement, Carrier provided Claimant with a wheelchair accessible van. Carrier also made special modifications to Claimant’s home, which included adding tile to the floor of the house and making the bathroom and shower area handicap accessible. The bathroom was specifically designed so that Claimant could use it independently.

¶ 4 Additionally, Carrier provides Claimant with attendant care services seven days a week for eight to ten hours each day. Monday through Friday, an attendant arrives at Claimant’s home at 6:00 a.m. to bathe, dress, and perform simple physical exercises with Claimant. Wife prepares Claimant’s breakfast and administers his medication. At 8 a.m. the attendant takes Claimant to the adult day care rehabilitation center. In the afternoon, Claimant is picked up from the center and dropped off at his home at 3:30 p.m.2 At 6:30 p.m., another attendant ar*580rives and assists Claimant with his needs. After performing range of motion exercises with Claimant, the attendant prepares Claimant for bed and leaves at approximately 9:30 p.m.

¶ 5 On Saturdays, an attendant arrives at Claimant’s home at 7:00 a.m. and stays for a couple of hours. After the attendant has left, Wife usually takes Claimant out to visit with family or the two will go out to eat. An attendant returns at 6:30 p.m. and stays with Claimant until approximately 9:30 p.m. On Sundays, an attendant arrives at 7:00 a.m. to take Claimant to church. Claimant is returned to his home at 1:00 p.m. An attendant returns at 6:30 p.m. for Claimant’s normal evening routine.

¶ 6 In addition to the services provided daily to Claimant, a registered nurse visits with Claimant on a weekly basis to set up his medications, take his blood pressure, and check his temperature. The nurse is also available to Claimant should any significant health issues arise and will accompany him to the emergency room if need be.

¶7 On April 26, 2006, Claimant filed a request for investigation, pursuant to Arizona Revised Statutes (A.R.S.) section 23-1061(J) (Supp.2007), alleging that Carrier had refused to compensate Wife for the attendant care she provided. Claimant sought retroactive compensation for the care rendered by Wife during those hours when no attendant care was provided. At a hearing held on September 22, 2006, Claimant argued that compensating Wife was only fair since Claimant requires attendant care 24 hours a day, seven days a week. Wife testified that on weekdays, between 3:30 p.m. when Claimant returns from the day care center and 6:30 p.m. when the second attendant arrives, she sits him in his reclining chair, administers his medication, and feeds him dinner. Occasionally, Claimant will defecate or urinate on himself at the rehabilitation center and Wife will change his clothing and clean him up when he returns home in the afternoon. Wife also testified that, after the second attendant leaves for the night, she monitors Claimant’s oxygen while he is sleeping and assists him when he has to use the bathroom, which is often two to three times a night. Wife testified that, since Claimant’s injury, she has had no life and likened caring for Claimant to having a child.

¶ 8 At a subsequent hearing held on November 22, 2006, Claimant’s treating physician, Dr. Porter, testified that, although Claimant “cannot live alone” and must be “supervised for the most part,” he does not require “skilled [care at all times] that you can get in someone who has a tracheostomy or need[s] tube feedings or things like that.” For example, Dr. Porter testified that a family member familiar with his needs could help Claimant get up and use the bathroom or set up his meals during the hours in which no attendant care was provided to Claimant. This assistance, Dr. Porter explained, did not require a licensed health care provider or skilled caregiver, “just an attendant of sorts.”

¶ 9 Registered Nurse Boggs (Boggs), the case manager who developed Claimant’s attendant care plan with Dr. Porter, also testified at the November 22 hearing. Boggs testified that she would not change .Claimant’s attendant care plan. Boggs opined that Claimant was capable of doing some things for himself, but Claimant believes that the attendants should do these tasks for him since they are being paid. For instance, Boggs testified that Claimant has used the bathroom without assistance at home and at the day care center. She also testified that Claimant would not need to get up as much at night if he used a urinal placed by his bed, as he had previously done when Wife went to Mexico for a couple of weeks. Boggs testified that none of her other patients that are similarly situated to Claimant require “24-hour per day attendant care.”

¶ 10 After considering all the evidence before him, the Administrative Law Judge (ALJ) found that Wife was not entitled to compensation for the care she provided Claimant and denied Claimant’s request for investigation. The ALJ reasoned that “the care rendered by [Wife] is not of the type which necessitates a trained attendant, but rather is more closely akin to the day-to-day duties assumed by a spouse in accord with *581the marriage commitment.” The ALJ summarily affirmed his award on administrative review, and Claimant brought this special action.

¶ 11 This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2) (2003), 23-951(A) (1995), and Arizona Rules of Procedure for Special Actions 10.

DISCUSSION

¶ 12 Although deference is owed to the ALJ’s factual findings on appeal, PFS v. Indus. Comm’n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App.1997), questions requiring the interpretation of a statute are issues of law, which we review de novo. Schwarz v. City of Glendale, 190 Ariz. 508, 510, 950 P.2d 167, 169 (App.1997). “When considering the facts of this case, we have been mindful of our duty to liberally construe the Act to effect its purpose of having industry bear its share of the burden of human injury as a cost of doing business. But, a ‘liberal construction is not synonymous with a generous interpretation.’ ” Putz v. Indus. Comm’n, 203 Ariz. 146, 150-51, ¶ 24, 51 P.3d 979, 983-84 (App.2002)(quoting Nicholson v. Indus. Comm’n, 76 Ariz. 105, 109, 259 P.2d 547, 549 (1953)).

¶ 13 Our workers’ compensation statute provides that, “upon notice to the employer, every injured employee shall receive medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches and other apparatus, ... reasonably required ... during the period of disability.” A.R.S. § 23-1062(A) (1995). In this case of first impression, we are asked to determine whether care provided by a spouse to an injured claimant in the marital home can be considered “other treatment” under A.R.S. § 23-1062(A). While in other circumstances we might be compelled to hold otherwise, we conclude that, under the facts of this case, the care rendered by Wife did not fall within the ambit of medical care contemplate ed by A.R.S. § 23-1062(A).

¶ 14 Courts were initially reluctant to embrace the idea of compensating a spouse who is not a licensed health-care practitioner for care provided to an injured claimant “on the

ground that the [spouse] did no more than he or she was bound to do as an affectionate member of the family.” 5 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 94.03(4)(b) (2007). Many jurisdictions have abandoned that view and permitted compensation to a spouse on the ground “that the services required were of an extraordinary nature and not those contemplated by the usual marital relationship.” A.G. Crunkleton Elec. Co. v. Barkdoll, 227 Md. 364, 177 A.2d 252, 255 (1962); see, e.g., Oolite Rock Co. v. Deese, 134 So.2d 241, 243-44 (Fla.1961). Those courts have considered a number of factors in determining whether spousal care is compensable including: whether the services are those typically performed by licensed health practitioners; whether the services were performed under medical direction; and whether the claimant needs continuous care. See Warren Trucking Co. v. Chandler, 221 Va. 1108, 277 S.E.2d 488, 493 (1981); Close v. Superior Excavating Co., 166 Vt. 318, 693 A.2d 729, 731 (1997).

¶ 15 Two eases illustrate the framework under which courts employing this approach analyze the issue of spousal care. In Warren Trucking, the claimant suffered injuries to his head and neck as a result of an industrial accident. 277 S.E.2d at 489. After the accident, the claimant had a series of dizzy spells and frequently blacked out, which forced him to remain home under his wife’s care. Id. at 490-91. The claimant requested compensation for the attendant care provided to him by his wife, which consisted of “bathing, shaving, feeding, assistance in walking, help with braces, aid upon falling, driving and administering routine medication.” Id. at 489, 494. The Virginia Supreme Court, in reversing the compensation award, held that such services were “not beyond the scope of normal household duties.” Id. at 494. Nor were the services “of the type usually rendered only by trained attendants.” Id.

¶ 16 In Close, the claimant sustained a severe head injury in an industrial accident. 693 A.2d at 730. The claimant required 24-hour attendant care as a result of the accident, which left him subject to seizures, disorientation, and memoiy loss. Id. The claimant’s wife provided full-time care to him *582at their home. Id. The wife’s duties were assigned to her by the claimant’s physicians and included administering and monitoring his medications, changing the doses of his medication, maintaining a log of the claimant’s behaviors, and assisting the claimant during seizures. Id. The claimant sought compensation for the care rendered by his wife. Id. The Vermont Supreme Court held that the wife’s services were compensable. Id. at 732. Of particular significance to the court was the fact that the claimant’s physicians regarded the duties performed by the wife as those which would typically be rendered by a nurse. Id. at 731-32. Moreover, given the claimant’s seizure activity, he required attendant care 24 hours a day. Id. at 731; see also Kenbridge Constr. Co. v. Poole, 25 Va.App. 115, 486 S.E.2d 567, 569 (1997) (finding “extensive” services provided by the claimant’s wife compensable when she received significant medical training in order to care for him and the care provided was of the type usually performed by skilled attendants, which included monitoring the claimant’s heart rate and blood pressure, administering suppositories and enemas, and monitoring his medications).

¶ 17 The dissent, infra ¶ 40, maintains that we misinterpret A.R.S. § 23-1062(A) because we interpret “other treatment” to mean “other [medical] treatment,” which presumably would not cover the sendees performed by Wife. The dissent calls our reading of the statute “superfluous.” However, one of the cardinal rules of statutory interpretation provides that “when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed.” Black’s Law Dictionary (8th ed.2004) (defining principle of ejusdem generis). Section 23-1062(A) states that “upon notice to the employer, every injured employee shall receive medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches and other apparatus, ... reasonably required ... during the period of disability.” A.R.S. § 23-1062(A) (emphasis added). In light of the rule of ejusdem generis, the words preceding “other treatment,” “medical, surgical and hospital,” suggest that the legislature intended the statute to cover treatment or benefits of the “medical” type and not services which would normally be rendered by a spouse during a marriage.

¶ 18 The dissent, infra ¶ 41, further argues that we are not free to rely on rules of statutory interpretation when a statute, like A.R.S. § 23-1062(A), is “clear on its face.” However, we do not believe the language of A.R.S. § 23-1062(A) is as clear and unambiguous as the dissent suggests, and therefore, find it appropriate to apply the principle of ejusdem generis to this statute. The ambiguity of the phrase is punctuated by the use of the adjective, “other,” and must, therefore, be read in relation to the words preceding it.

¶ 19 We find support for our interpretation of A.R.S. § 23-1062(A) in Hughes v. Industrial Commission, 188 Ariz. 150, 933 P.2d 1218 (App.1996). In Hughes, this court held that “other treatment” did not encompass child care services for purposes of benefits under A.R.S. § 23-1062(A). 188 Ariz. at 153-54, 933 P.2d at 1221-22. The claimant argued that “child care [was] reasonably required other treatment because it [was] necessitated by and necessary to treat her industrial injury.” Id. at 153, 933 P.2d at 1221. Applying the principle of ejusdem generis to A.R.S. § 23-1062(A), this court concluded that the statute did not extend to child care because it was not of the same type or class as the specifically enumerated services. Hughes, 188 Ariz. at 154, 933 P.2d at 1222. The court reasoned that child care was a service “not generally considered medical treatment.” Id. (Emphasis added.)

¶20 Likewise, the services rendered by Wife in this case are not generally considered medical treatment. Contrary to the dissent’s assertion, infra ¶ 51, the services provided by Wife in this case were not the type of services typically rendered by a nurse, as in Close. In Close, the physician concluded “that if only one person were to be in attendance, that person should be capable of providing skilled nursing care.” 693 A.2d at 732. In this case, there was no such conclusion by Claimant’s physician. In fact, as previously stated, Claimant only required “an attendant of sorts,” not someone capable of *583providing skilled nursing care, during the times in which no attendant care was provided. The services provided by Wife more closely resemble the ordinary services provided by the claimant’s wife in Warren Trucking than they do the extensive services provided in Close and Poole. Here, Wife prepared Claimant’s meals, cleaned him up if he was dirty, drove him to visit with family on the weekends, assisted him in using the bathroom at night, and monitored his oxygen while he was asleep. As in Warren Trucking, the services provided to Claimant were not of the type typically performed only by trained attendants.

¶21 Furthermore, the ALJ determined that none of the care rendered by Wife to Claimant was “of the type which necessitates a trained attendant,” nor under the direction or control of Claimant’s physicians. The extent of the training Wife required3 was limited to instruction on how to operate Claimant’s oxygen machine and did not rise to the level of the significant training received by the spouses in Close and Poole. For example, in Poole, the claimant fractured his skull during an industrial accident and, as a result, suffered from cognitive brain damage. 486 S.E.2d at 568. His caretaker wife was assigned a number of tasks, all under the direction and control of the claimant’s physicians. Id. To carry out these tasks regularly, the claimant’s wife was “trained to administer enemas and suppositories, take stool samples, take blood pressure readings, and monitor heart rates.” Id. She also received cardiopulmonary resuscitation (CPR) training. Id. Additionally, the wife remained in close contact with the claimant’s physicians, monitored his medications, and performed physical therapy with him. Id. at 568-69.

¶ 22 Finally, contrary to the dissent, infra ¶¶ 52-53, Claimant does not require continuous 24-hour skilled attendant care. Dr. Porter testified that although Claimant needed to be supervised for the most part, he did not need constant “skilled” care. Dr. Porter opined that much of the care provided to Claimant, beyond the attendant care services he received, could be rendered by a family member and not a health care provider or skilled caregiver, “just an attendant of sorts.” Dr. Porter’s testimony was consistent with his previous medical reports. In one report, Dr. Porter stated that Claimant was “capable of living independently.” In another report, Dr. Porter suggested that there was no need for skilled care during the hours in which no attendant care was provided:

I do not see where the patient would need as far as the 3:30 through 6:30, [sic] this is my understanding when he would be watching television or spending time with ... his family including his wife and would be fixed dinner. I do not see a skilled need to actually perform there, but again if [Wife] is not able to perform that someone in the family would.

Furthermore, Boggs, who developed Claimant’s attendant care plan with Dr. Porter, testified that the attendant care plan was “working well” and did not need to be modified. She also testified that Claimant could do a lot on his own, but chose to allow others to do it for him since they were being paid. Boggs further testified that, compared to other individuals similarly situated to Claimant, Claimant receives more assistance from Wife because “he is demanding of her” and “is a very difficult man [who] demands that he be waited on.” 4

¶ 23 We do not share the dissent’s view, infra ¶55, of implications that our holding *584will have for the worker’s compensation system in Arizona. That is, our holding will not permit carriers to .neglect their statutory duties to provide all necessary medical services to injured employees if the carrier determines that the claimant has a spouse or family member who could render such services. As. stated earlier in the opinion, had the facts of the ease been different, we may have held otherwise. But, under the facts of this case, Claimant was not entitled to compensation for the services Wife provided during those hours in which he received no paid attendant care. If “other treatment” should encompass services rendered by a spouse to the other spouse of the sort typically provided in a marriage, then we invite the legislature to amend A.R.S. § 23-1062(A) to so state. See Hughes, 188 Ariz. at 154, 933 P.2d at 1222 (“The legislature alone may increase disability compensation.”). But that is not for us to decide. Accordingly, we conclude that the ALJ did not err in finding that the services provided by Wife to Claimant were more akin to ordinary household duties than services typically provided by skilled attendants.

CONCLUSION

¶ 24 For the aforementioned reasons, we affirm the ALJ’s decision denying Claimant’s request for investigation under A.R.S. § 23-1061(J).

CONCURRING: MAURICE PORTLEY, Judge.

. "Hemiparesis” is paralysis affecting only one side of the body. RightHealth, http://righthealth. com/Health/hemiparesis/-oddefinition_wiki_ Hemiparesis-s (last visited July 28, 2008).

. The dissent, infra ¶ 54, in arguing that the services provided are compensable, makes much of the fact that Wife "had to leave her full-time work to care for her husband.” However, it was undisputed that Claimant was at the facility six to seven hours each day. Therefore, if Wife wanted to work, there was certainly time in the day for her to do so. Wife, however, has not sought employment since the injury and there are doubts whether she could secure employment given her own health issues. Consequently, while it is undisputed that Wife did not work outside the home following Claimant's accident, *580the reason why and whether she is able to do so, are unclear from this record.

. The dissent, infra ¶¶ 27, 47, contends that it is "undisputed” that Wife was trained to move Claimant out of bed without injuring him. However, Wife never testified to such. Dr. Porter testified that he "assumed” that she had received training, but was not certain.

. That an insurance carrier, as argued by the dissent, infra ¶ 33, would pay family members in other cases to care for an injured person if no agency was involved to render attendant care is irrelevant in the case at hand. Boggs testified that there are similarly situated individuals whose family members take care of them and, in turn, are compensated by the insurance carrier. But they are only compensated because no agency is involved in caring for their injured spouses. So while it is "undisputed” that the carrier would pay a family member if no agency is involved, the insurer is not required, as in this case, to pay a family member to care for an injured spouse if that spouse is already receiving a significant amount of attendant care.