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Compton v. Rinehart's Meat Processing2/19/2004
do that to help us out. She's said, "There's nothing wrong with him laying on the floor or in a bed and putting his legs on pillows." She said, "It does just as much good. So that's what we've been doing."
Although Wife initially testified that she did not meet Fahey until at least two to three years after the injury , she later corrected herself to state that Wife first met Fahey a little before July of 1991. Wife admitted that although Fahey had never come to Claimant's home, she had instructed her to assist Claimant in making sure his vitals and his blood sugar were normal and that his leg was properly cleaned and kept dry. Wife testified that she had discussions with Fahey on the proper way to put on the Jobst stockings; however, the following questions were asked concerning discussions with Fahey about the services Wife provided:
Q. Did you ever have discussions with Connie Fahey concerning the fact that you were providing these services to [Claimant]?
A. Yes.
Q. And that you might need some assistance with that from time to time?
A. Yes.
Q. Do you know on how many occasions you did that?
A. Several.
Q. What is the last time that you had any contact with Connie Fahey?
A. I'm wanting to say in ' 96, but I'm not sure of the date or month.
A careful review of Wife's testimony reveals that, at the most, Fahey had notice that Claimant was taking medications, was using Jobst stockings, and elevated his leg several times a day. It is important at this juncture to note that although Claimant has now been diagnosed with additional diseases of hypertension, morbid obesity, and diabetes, none of these diseases was caused by the workplace accident. The ALJ found Employer was not responsible for the medical treatment of the hypertension, morbid obesity, or diabetes, a finding that has not been challenged. It is also important to note that the symptoms of the workplace injury are recurring swelling and infections of Claimant' s leg, that Claimant has no disability above the waist, and that Claimant contends to have the swelling, at the most, three or four times per year. Claimant takes an oral antibiotic for the treatment of cellulitis and uses salves when tears or cracks appear in the foot. The remaining medications are for hypertension and diabetes. Significantly, after the initial two hospitalizations, Claimant has not been hospitalized since 1993. Although Claimant argues that the lack of medical intervention is because of the good care that Wife is providing, we are only concerned at this stage with whether the Employer had notice that Claimant required such intensive nursing services.
We must conclude that the award of past nursing services is contrary to the overwhelming evidence. Employer did not have notice of the employee's need for nursing services and Claimant did not demand nursing services prior to the final hearing and, therefore, Employer did not refuse, fail, or neglect to provide such services. Even though we accept Wife's testimony as credible regarding her conversations with Fahey, and assume that Fahey was an authorized individual to have been given constructive notice, the information of Claimant's need to take oral antibiotics several times per day to prevent cellulitis or to put on Jobst stockings twice per day does not provide notice that Claimant needed nursing assistance eight hours per day, seven days per week, fifty-two weeks a year. Given the relatively minor initial injury, the fact that Claimant returned to work for two-and-a-half months after the injury, and the fact that in the twelve years in which the case was pending no formal or informal de
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