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Compton v. Rinehart's Meat Processing2/19/2004
upreme Court found sufficient evidence that the employer and insurer knew of the need for nursing services, but failed to offer or provide the services while the claimant was in a "bedfast and helpless" condition. Id . at 775. The claimant was initially hospitalized for six weeks for severe injuries and severe shock as a result of a car accident; he was then hospitalized three more times for a significant period of time within the following eight months. Id.
Stephens is distinguished in Vaught. In Vaught, the court cited the fact that there was no evidence that claimant ever demanded that the employer provide home nursing care prior to the hearing, nor any evidence that any representative of the employer ever saw claimant while he was hospitalized or at home. 938 S.W.2d at 945. Claimant's wife testified that she informed the insurer that claimant was in a wheel chair and bedridden. Id . at 944. When a claims representative of insurer saw claimant's condition in the hospital and at home two years later, he was bedfast and, because his doctors wanted someone with him at all times, wife performed numerous nursing services. Id. There was evidence that wife assisted with personal hygiene, massaged claimant's feet and back, supervised medication, served meals in bed, and pushed claimant's wheelchair. Id. at 945. This court found that the Commission could have reasonably found that respondents had adequate notice of the need for nursing care, but the evidence supporting such a finding was not so compelling that the finding of no notice was against the weight of the evidence; thus, we could not substitute our judgment for that of the Commission. Id.
In Fitzgerald, the court reversed an award of past nursing services based on the lack of notice to the employer. There, the claimant was injured by a backhoe causing crushing injuries to his foot, back, neck, and head, as well as depression and post-traumatic stress syndrome. 820 S.W.2d at 634. The court found as a matter of law that employee was not entitled to past nursing care due to the lack of notice for such care. Id. at 635-36.
In contrast stands Breckle , where wife, a registered nurse, and denominated as a credible witness, testified that she provided nursing services to the claimant who had injured his back and was totally disabled. 980 S.W.2d at 193. The Commission denied past and future medical care for nursing services and found employee failed to give employer a notice of a need for such services above and beyond. Id. at 192-93. The Eastern District of this Court reversed the failure to give benefits and found persuasive the undisputed testimony of claimant that a nurse, sent by the employer's insurance company, had come to claimant' ;s home, accompanied him to doctors' appointments, and participated in decisions about his care. Id . The nurse had informed claimant that he would require nursing care after surgery. Id . Wife testified that claimant needed constant observation and supervision, meal delivery, help with bathing, and assistance with walking. Claimant was also unable to lift his left arm. Id . Of interest is that a registered nurse also testified at the hearing that the claimant was in need of continuous nursing care due to his unpredictable falling. Id. In reversing and remanding the denial of past and future nursing services, the court noted the positive credibility determination by the ALJ of wife's testimony and the uncontradicted testimony that the employer-provided nurse informed claimant that he needed ongoing nursing care. Id . at 194. The court found the wife's services to her husband went beyond the ordinary "duties of a spouse." Id.
Claimant, citing to Breckle, relies upon the fact that a nurse, Con
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