Case # 67300405
Date of Accident: 01/02/1973
District Office: Syracuse
Employer: Truss Systems Inc
Carrier: American Mutual Liab Ins Co
Carrier ID No.: W034003
Carrier Case No.: 335-179143
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Oot & Associates
Panel: Robert E. Beloten

The Full Board, at its meeting on September 11, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on September 29, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. the proper value of the claimant's home health aide services; and
2. whether a penalty should be assessed against the carrier pursuant to Workers' Compensation Law (WCL) § 114-a(3)(i).

The Workers' Compensation Law Judge (WCLJ) found that the reimbursement rate for home health aide services should be $19.95 per hour.

The Board Panel majority found that the carrier's newly-submitted evidence should not be considered and affirmed the WCLJ. In addition, the Board Panel majority imposed a $500.00 penalty against the carrier pursuant to WCL § 114-a(3)(i) for instituting an application for administrative review without reasonable grounds.

The dissent, like the majority, would affirm the WCLJ's decision, but would not assess a penalty against the carrier pursuant to WCL § 114-a(3)(i).

The carrier filed an application for Mandatory Full Board Review on October 28, 2011,

Claimant filed a rebuttal filed on November 28, 2011.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This claim was established for a work-related injury to the claimant's back and later amended to include bilateral shoulder injuries and a urinary tract infection, based upon an accident which occurred on January 2, 1973. The claimant is a paraplegic as a result of his accident.

The claimant requires home health care. The claimant has two nursing attendants that alternate caring for him from 6:00 a.m. to 8:00 p.m. on a daily basis. As of February 2010, the claimant's aides were being paid $15.00 per hour. On February 10, 2010, the claimant requested that the pay for his home health aides be increased. The claimant provided information to the Board regarding rate information from local home health care service providers on the prevailing rate for home health aide workers. The claimant did not specify whether the information pertained to "certified" or "non-certified" nurse aides. The information consisted of a listing of three home care service agencies and indicated that the rate for nurse aides was between $19.75 and $24.00 per hour.

In a notice of decision filed May 12, 2010, the WCLJ directed the carrier to provide contrary evidence regarding the reimbursement rate of home health aides.

A hearing was scheduled for June 17, 2010. The carrier did not submit any evidence regarding the reimbursement rate of home health aides, but rather raised the issue that the claimant's home health aides were not certified and took the position that until the claimant shows they are certified, the home health aides are not entitled to an increase in hourly pay above $15.00. At the hearing, the WCLJ asked the carrier's attorney whether she had any documentary evidence on how much (non-certified) home care personal assistants receive. The carrier's attorney responded that she did not since the home health aide agencies she called require their employees to be certified.

By a decision filed June 22, 2010, the WCLJ ruled on the issue and closed the record. The WCLJ found that, based upon the evidence in the record (submitted by the claimant) on this issue, the reimbursement rate would be $19.95 per hour.

The carrier requested administrative review of the WCLJ's decision filed June 22, 2010, arguing that the WCLJ improperly raised the salary of the non-certified home health aides using a fair market value for a certified home health aide. In connection with its application, the carrier submitted evidence in the form of rate sheets from home health aide agencies that list rates for differing levels of expertise, the lowest of which is a certified home health aide at $19.75 per hour. The carrier argued that the rates shown are what the agencies charge clients, not what the aide gets paid, and the reimbursement rate for the claimant's nurse aides should remain at $15.00 per hour.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review, the carrier argues that it had reasonable grounds to assert its position and that it validly explained why it did not submit the home health care quotes it had obtained to the WCLJ. The carrier also maintains that there is insufficient evidence upon which to render an opinion regarding the reasonableness of the wages payable to the claimant's home health aides since the only evidence that the WCLJ considered pertained to wages for certified home health aides and not non-certified assistants.

In a rebuttal filed on November 28, 2011, the claimant argues that the issue of reimbursement to his home aides was fully and appropriately decided by the WCLJ and affirmed by the Board Panel. The claimant did not specifically comment on the penalty issue.

Value of claimant's home health aide services

The carrier has cited Matter of PD Car Service Inc., 2006 NY Wrk Comp 09057661 in support of its position that non-certified aides should be paid less than certified aides. In PD Car Service, the claimant's wife served as his home health aide. One of the issues raised by the carrier was whether the wife remained certified subsequent to her first year of providing the home health aide services. The case was sent back to the hearing calendar to determine the periods that the claimant received home health aide services and to determine whether the claimant's wife was certified to provide such services each year. While the Board Panel recognized the issue raised by the carrier concerning certification, it did not find that non-certified aides should be paid less than certified aides. Therefore, it is not directly on point.

WCL § 13(a), which is to be liberally construed "to effectuate [its] economic and humanitarian object" (Matter of Simpson v Glen Aubrey Fire Co, 86 AD2d 909, 910), renders an employer liable for the payment of expense for services required by the "nature of the injury."

Per his medical records, the claimant is a T7 paraplegic who is totally disabled. He has limited capacity to care for himself. Here, the carrier was unable to proffer any evidence with respect to the fair market value of pay for non-certified home health aides. However, the typical duties of a home health aide are to assist an individual with personal care, activities of daily living and to provide companionship. The record indicates that while the two women who alternate shifts caring for the claimant are not "certified" home health aides, they perform the tasks of same. The carrier represents that the agencies in the vicinity of the claimant's residence hire certified assistants only. The data indicates that the pay for such assistants is between $19.75 and $24.00 per hour. The carrier fails to proffer any evidence of whether there is a distinction in the services rendered by a certified home health aide as opposed to a non-certified home health aide.

In Matter of Manning v Niagara Mohawk Power Corp (233 AD2d 803 [1996], lv denied 89 NY2d 1029 [1997]), the Appellate Division deemed it reasonable to calculate the value of a wife's services provided to claimant, a quadriplegic, based on rates for registered nurses where only registered nurses were available to perform functions of licensed practical nurses at the time claimant and his wife resided within a certain county in New York. The claimant's wife happened to be a registered nurse. However, the court based the service rate on the range of nursing and related services performed by the wife, as required by the claimant.

In Matter of Haney v Schiavone Construction (195 AD2d 628 [1993]), as in the instant case, there was no dispute as to the nature and extent of the claimant's disability or his need for home care services. The issue there was the Board's authority to modify its initial valuation of the home care services provided by the claimant's spouse. The court indicated that the law is well settled that home care or nursing services provided by a claimant's spouse are reimbursable. The court further indicated that the Board is not only vested with the authority to approve and fix the reasonable value of the services provided under WCL § 13-a, it also has continuing jurisdiction to make modifications with respect to former findings, as in its opinion may be just pursuant to WCL § 123. The Board authorized the increase in payments for services based upon what was alleged to be the prevailing rate for nursing services. The court noted that the Board's use of this data was entirely proper, particularly in view of the apparent failure by the carrier to submit any proof on this issue.

Similarly, in the case at hand, while the carrier makes the argument that the hourly rate of the claimant's nursing aides should not be increased from $15.00 to $19.95, it has failed to provide any data or proof regarding a difference in pay between certified and non-certified aides or whether a difference in pay is warranted under the circumstances (i.e., whether the claimant's aides provide services that are "lesser than" or "grossly inadequate" when compared to those provided by a certified aide). In fact, the evidence suggests that the cost to the carrier to provide the same services to the claimant through a different source would amount to the same approximate value as set by the WCLJ. For example, the carrier's admission that it could only find agencies in the claimant's service area offering rates between $19.75 per hour and $24.00 per hour for the services required by the claimant is proof of same. Moreover, the hourly rate set by the WCLJ, $19.95, is on the lower end of the range for these services.

Accordingly, the preponderance of the evidence herein supports the reasonableness and propriety of the decisions of the WLCJ and the Board Panel to authorize the increase in wage of the claimant's nursing assistants from $15.00 per hour to $19.95 per hour.

Penalty under WCL § 114-a(3)(i)

WCL § 114-a(3) provides, in pertinent part, that:

[i]f the board or any court having jurisdiction over proceedings in respect of any claim for compensation determines that the proceedings in respect of such claim, including any appeals, have been instituted or continued without reasonable ground:

(i) the cost of such proceedings shall be assessed against the party who has so instituted or continued the proceedings, which shall be payable to the Board for administrative expenses pursuant to section 151 of this chapter…

Here, the Majority Panel pointed out that the carrier submitted new evidence (rate quotes for nurse aides from home health care agencies) in connection with its application for administrative review that it could have presented to the WCLJ, but did not, without explanation, and thus, it failed to comply with 12 NYCRR 300.13(g).

Pursuant to 12 NYCRR 300.13(g):

"If the application for review offers new and additional evidence that was not in the record and was not presented to the Workers' Compensation Law judge, it must state reasons showing that such evidence could not have been presented to the Workers' Compensation Law Judge or could not have been produced as directed by the Workers' Compensation Law Judge. The board panel, in its discretion, may accept such evidence or may deny review and refuse to consider such new or additional evidence if it finds that such evidence could and should have been presented to the Workers' Compensation Law Judge."

In its application for administrative review, the carrier implied that the reason it did not present the evidence (the quotes it received from the home health agencies) it attached to its application for administrative review to the WCLJ is because the information pertained to certified home health aides only, which information it deemed inapplicable since the claimant's aides are not "certified." The carrier also argued that the wage information it received for home health aides (attached as Exhibit A to its application) was the same as the information submitted by the claimant (attached as Exhibit B to its application).

The carrier's main argument in its application for review is that the WCLJ did not consider any evidence whatever regarding the fair market value of non-certified home health aides. The documentary evidence it attached to its application were quotes it received from home health agencies (that its attorney alluded to in the June 17, 2010 hearing). The quotes pertain to "certified" assistants only. The carrier admits that the rates contained in these quotes are in line with the ones obtained by the claimant. Thus, the carrier based its application not on "new evidence" but on the premise that the wage rate set for the claimant's home health aides was not properly established by the WCLJ due to a purported difference in pay rates between certified and non-certified aides, and the WCLJ's consideration of evidence of pay rates for certified assistants only. The carrier is making a legal argument that non-certified aides should receive a lower rate as a matter of law. While the argument may have merit, as outlined above, the carrier's failure to adequately support its position prevent it from prevailing on same.

This finding is without prejudice to the carrier presenting evidence demonstrating a different proper rate in the future.

Thus, the carrier's application for review was made upon arguably reasonable grounds. Accordingly, a finding that the carrier instituted or continued proceedings without reasonable ground so as to impose a penalty pursuant to WCL § 114-a(3)(i) is not warranted here.

Upon review of the record and based upon the preponderance of the evidence, the Full Board finds that the decision to authorize an increase in wages of the claimant's nursing assistants from $15.00 per hour to $19.95 per hour as unanimously found by the Board Panel is supported by the record. The Full Board further finds that a penalty pursuant to WCL § 114-a(3)(i) is not warranted under the circumstances of this case. The $150.00 assessment against the carrier made pursuant to WCL § 142(5) still stands.

CONCLUSION

Accordingly, the WCLJ decision filed on June 22, 2010, is AFFIRMED. No further action is planned at this time.