Benefits: Domiciliary Care

MONTANA SUPREME COURT DECISIONS
Quick v. Montana State Fund [05/13/09] 2009 MT 162 Where the insurer did not appeal the WCC’s determination that $20 per hour represented the appropriate rate for the claimant’s domiciliary care, the insurer’s concession undermines its argument that the wage of the average working Montanan should play a role in determining the appropriate rate for domiciliary care benefits.
Quick v. Montana State Fund [05/13/09] 2009 MT 162 The Montana Supreme Court upheld the WCC’s conclusion that the severity of the claimant’s condition from the time of his injury was not so readily apparent as to put the insurer on notice of the claimant’s need for domiciliary care where the claimant returned to work for a period of time after the accident, the medical records indicated the claimant had shown signs of improvement or potential recovery, expert opinions that stated the claimant was suitable for certain types of employment, and test results indicated the claimant possessed an average IQ.
Powell v. State Fund [12/14/00] 2000 MT 31 The statutory cap on domiciliary care benefits provided in section 39-71-1107(3), MCA (1995) does not violate the equal protection provisions of the 14th Amendment of the US Constitution and Article II, section 4, of the Montana Constitution or the right to substantive due process within the 14th Amendment and Article II, section 17, of the Montana Constitution.
 
WORKERS' COMPENSATION COURT DECISIONS

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 For services to constitute reasonable domiciliary care under § 39-71-1107(1)(d), MCA, they must be of a type beyond the scope of normal household duties. Activities such as meal preparation, basic housekeeping, and taking out the garbage are not beyond the scope of normal household duties and are not properly considered to be services for which the insurer is liable.

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 While the claimant’s industrial injury imposed severe limitations and it made sense for his wife to perform certain household and home maintenance tasks which the claimant had performed prior to his injury, the domiciliary care statute only requires insurers to pay for services which meet the statutory criteria and does not require insurers to pay for services which are within an injured worker’s capabilities or which do not constitute services beyond normal household duties.

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 Nothing in the Workers’ Compensation Act obligates insurers to pay for home maintenance services such as moving furniture, hanging holiday decorations, and changing the oil in motor vehicles as domiciliary care.

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 Section 39-71-1107(4), MCA, states that domiciliary care provided by a family member for a period of less than 24 hours a day may not exceed the prevailing hourly wage, and an insurer is not liable for more than 8 hours of care per day. Effective June 22, 2007, the Department of Labor and Industry began publishing “Montana Prevailing Wage Rates for Nonconstruction Services.” From June 22, 2007, forward, the claimant is entitled to domiciliary care at the rate which is specified for his region at the prevailing hourly wage published by the Department. Although the Department also lists the benefit rates for the jobs surveyed, these benefits cannot be reasonably included within the definition of “prevailing hourly wage” and are therefore not added to the amount due the claimant.

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 The claimant is entitled to the prevailing hourly wage which a health care worker would receive for his care – not the rate an agency would charge for the services of one of its employees.
Quick v. Montana State Fund [06/04/08] 2008 MTWCC 27 Where the evidence establishes that Petitioner requires the skilled care of an registered nurse, and the evidence presented to the Court is that in 2007, Montana hospital RNs earned $20.00 - $23.37 per hour and Montana private care RNs earned $25.00 per hour, the Court concludes that $20.00 per hour for 24-hour care is a reasonable rate of pay for Petitioner’s spouse, an RN. The Court adopted the low end of the range as a reasonable rate of pay taking into account the reality that, although Petitioner’s spouse may be available to Petitioner 24 hours per day, she maintains a certain amount of discretion regarding the level of Petitioner’s day to day supervision that a privately retained nurse would not be afforded.
Quick v. Montana State Fund [06/04/08] 2008 MTWCC 27 The Court concludes that Respondent was not on notice that Petitioner required domiciliary care benefits where the following events took place: Petitioner returned to work following his 1984 accident for a period of time; a doctor opined to a vocational rehabilitation specialist in 1989 that the position of drafter might be a suitable position for Petitioner if he could use the spray and stretch exercises throughout the day; cognitive testing performed in 1990 revealed that Petitioner’s verbal, performance, and full scale IQ were within average range; as recently as 2000, Petitioner drove himself from Tucson, Arizona, to Circle, Montana. Most determinative of the notice issue, however, is the September 2, 2005, letter from Petitioner’s counsel at that time, to Respondent’s claims examiner, in which he specifically stated that Petitioner “has never made a claim for domiciliary care.”
Bustell v. Ins. Co. of PA [2/26/03] 2003 MTWCC 11 The rate of reimbursement for domiciliary care furnished by a non-family member is not limited to the rate paid by medicaid for care in a nursing home. § 39-71-1107(3), MCA (1999).
Cheetham v. Liberty NW [12/18/01] 2001 MTWCC 65 Section 39-71-1107(1)(a), MCA, on its face limits liability for domiciliary care benefits to periods after the insurer has notice or knowledge of the need for domiciliary care.
Cheetham v. Liberty NW [12/18/01] 2001 MTWCC 65The knowledge requirement in section 39-71-1107(1)(a), MCA, has no application where the insurer denies all liability for a claim.
Haas v. State Fund [9/1/00] 2000 MTWCC 54 Where claimant argued ongoing relationship with insurer was detrimental to him and warranted lump sum of domiciliary care benefits, the only relevance of evidence of investigation into him involved the effect of the investigation upon him, including what he knew or perceived and how he reacted. Court thus granted protective order, and denied motion to compel, relating to details of investigation where such details involved attorney work product and attorney/client communications.
Powell v. State Compensation Insurance Fund [2/4/99] 1999 MTWCC 10 Injured worker receiving 24-hour domiciliary care from his spouse challenged constitutionality of the limit on payments for 24-hour care by a family member established by section 39-71-1107(3), MCA (1995). He also sought to challenge the constitutionality of subsection (4) of the same statute, which governs domiciliary care by a family member necessary for a period of less than 24 hours a day. The WCC refused to consider a constitutional challenge to subsection (4) where claimant has no claim under that subsection. The Court found that subsection (3) does not violate federal or state guarantees of equal protection and substantive due process. Equal protection provisions do not prohibit different treatment of different groups or classes of people so long as all persons within a group or class are treated the same. The essence of substantive due process is similar as applied to this case; the statute must be reasonably related to a permissible legislative objective. Here, while the goal of cost containment alone may not save legislation which treats similarly situated people differently, there are cogent and logical reasons for limiting payments to family members providing 24-hour domiciliary care. Family members providing such care typically reside with the injured worker, meaning they generally continue their ordinary life activities during some of the day, and typically do not provide the trained, focused, professional care given by non-family members who are working away from their own home. These differences justify the statute.
Rausch v. State Compensation Ins. Fund [12/15/95] 1995 MTWCC 106 Where parties dispute proper rate of domiciliary care, claimant not entitled to discover information about rates paid by insurer statewide. Where claimant lives in Missoula-Frenchtown area, insurer ordered to use readily accessible computerized information to list claims in the Missoula-Frenchtown area in which it pays for domiciliary care, not identifying particular claimants, but noting: (1) the rate at which domiciliary care is paid; (2) whether the rate was fixed by agreement or court order; (3) the town or city where claimant resides; (4) the number of domiciliary care hours provided each day; (5) the nature of the claimant’s condition; (6) any special circumstances affecting the determination of the hourly rate.