An employer had paid for home health care by an agency for an injured worker, which doesn’t necessarily mean that care provided by an employee’s spouse was compensable too, determined a Virginia appellate court.

In early 2012 Ross had sustained severe injuries, including traumatic brain injury, working as a registered nurse. She was awarded lifetime medical for post-concussion syndrome and it was determined to be medically necessary that she have a home health aide or have family member oversight to help her with daily living and to monitor safety concerns for her, 24-hours a day.

Between September 2016 and October 2017 her employer provided home health care through an agency, and four different aides provided care during this time. In August 2017 Ross filed a claim requesting that her home health care be provided by her spouse. The agency hired her spouse in October 2017 but fired him three weeks into the job because he didn’t provide timely activity notes on her care, a requirement in the employment agreement. After that happened the agency did not provide any more aides and it was her spouse and daughter taking care of her. In January 2018 he resigned his job to care for her.

In the Commission’s decision, they did not need to apply what is known as the Chandler test because that test was only applicable in determining whether or not home health care was medically necessary. They said that fact was already established so they did not determine if the four requirements of the Chandler test had been met.

The four requirements of the Chandler test would require an employer to pay for care performed by a spouse if:

1. The employer knows of the employee’s need for medical attention at home as a result of a work-related injury.
2. The medical attention is performed under the direction and control of a physician (a physician must state that home care is necessary and must describe the nature and extent of duties to be performed by the spouse).
3. The care rendered by the spouse must be care typically rendered by trained attendants, care that would go beyond the scope of normal household duties.
4. There are means to determine with proper certainty the reasonable value of services performed by the spouse.

The appellate court said that the Commission had failed to consider the factors of the test appropriately, and that even if they had found paid help would have been required if the spouse was not wiling to provide care, they still needed to find that the care provided by the spouse was necessary medical care. Just because the employer had paid for home health care through an agency does not necessarily mean the care her spouse provided was compensable, until the Chandler requirements were analyzed.

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