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Appeal of Northridge Environmental, LLC

Supreme Court of New Hampshire

March 22, 2016

Appeal of Northridge Environmental, LLC (New Hampshire Compensation Appeals Board)

         Argued October 8, 2015.

          Compensation Appeals Board.

          Law Office of Leslie H. Johnson, PLLC, of Center Sandwich ( Leslie H. Johnson on the brief and orally), for the petitioner.

          Mullen & McGourty, PC, of Bedford ( Craig A. Russo and Emily Conant on the brief, and Mr. Russo orally), for the respondents.

         BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

          OPINION

Page 946

          Bassett, J.

          The respondents, Northridge Environmental, LLC (Northridge) and Arch Insurance Company (carrier), appeal a decision of the New Hampshire Compensation Appeals Board (CAB) granting the request by the petitioner, John Nicholson, for reimbursement for home health care services provided to him by his wife, Angela Nicholson. We affirm.

         The CAB found, or the record supports, the following facts. In July 2010, the petitioner was seriously injured on the job while working for Northridge. After a period of hospitalization, the petitioner was discharged on August 25, 2010. The petitioner was prescribed medication and follow-up care, which included home health services " through VNA of Southern Carroll County ... . This will include physical and occupational therapy, a home health aide, and nursing services." The respondents

Page 947

offered to pay for the prescribed services, but the petitioner chose, instead, to have his wife provide the services.

         Following the petitioner's release from the hospital, he had multiple open wounds that required daily cleaning, and he " needed 24/7 care, due to balance problems, short term memory loss, and inability to perform certain regular activities of daily living." Although the petitioner's wife did not have any formal medical training, she provided the required care to the petitioner, including cleaning his wounds, bathing him, dressing him, aiding him in the use of the bathroom, helping him move around, and constantly supervising him.

         In September 2011, the petitioner sought reimbursement from the carrier for the services provided by his wife. After the carrier denied the request, the petitioner asked for a hearing before the New Hampshire Department of Labor (DOL). The petitioner sought reimbursement at a rate of $15 per hour, 16 hours per day, between August 25, 2010, the date of his release from the hospital, and June 4, 2012, the date of the DOL hearing. The DOL denied the request for reimbursement.

         The petitioner appealed to the CAB. Following a de novo hearing, the CAB denied reimbursement. After unsuccessfully moving for reconsideration, the petitioner appealed to this court. We vacated the CAB ruling and remanded the case for the CAB to determine in the first instance whether, and to what extent, the services provided by the petitioner's wife were reimbursable.

         On remand to the CAB, the respondents argued that, because the petitioner's wife did not fall within the definition of a " health care provider" as used in RSA 281-A:2, XII-b (2010), her services were not reimbursable. See RSA 281-A:24 (2010). Although the petitioner conceded that his wife was not a " doctor, chiropractor, or rehabilitation provider" as listed in RSA 281-A:2, XII-b, he asserted that her services were, nonetheless, reimbursable. (Quotation omitted.) The petitioner again sought reimbursement at the rate of $15 per hour for 16 hours per day between August 25, 2010, and June 4, 2012. The respondents did not challenge the hourly rate; however, they argued that the request for reimbursement for 16 hours per day was unreasonable.

         The CAB first concluded that the petitioner was entitled to reimbursement for his wife's services. The CAB explained that:

[O]ngoing home health services were required as prescribed by [the petitioner's doctor], and [the petitioner's wife] has adequately provided those services. ... RSA 281-A:2, XII-b does not exclude a spouse as a home health care provider and should include a spouse as a home health care provider because the workers['] compensation statute is a remedial statute and a spouse is not excluded as a provider. Additionally, there is nothing in the medical record or ...

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