As a premises liability law firm in Boston, we know that every industrial accident affects not only the injured employee but also his or her family. The dramatic reduction in weekly income creates hardship and burdens for worker, spouse, and children; but these burdens do not even begin to compare with the emotional toll that a tragic injury causes. The implications of a catastrophic injury cannot be adequately described. The sight of a loved one unable to care for their most basic needs is horrific.
Caring for an employee who is permanently confined to a wheelchair or bed due to a severe spinal injury is a 24-hour a day, 7 days a week responsibility. While there are a number of wonderful care providers whose compassionate assistance is indispensable, it is difficult, if not impossible in most situations to find sufficient staff to provide all care required in these cases. Family members often shoulder this responsibility without being paid for it. This can compound the effect if a spouse misses work to care for the injured employee.
The Workers’ Compensation Act provides that insurers must pay for all medical care which is reasonable and necessary to treat a work-related injury. Included in such treatment is the cost of providing around the clock attendant care. This care is quite expensive. The cost of such care, at DIA rates, is well in excess of $ 100,000.00 per year. It is fundamentally unfair for a workers’ compensation insurance company to avoid payment to family members who provide this care to an injured employee who is unable to find personal care attendants or home health aides.
The Courts of this Commonwealth have recognized that a person who provides such care to an injured worker is entitled to payments for these services on an equitable basis. The basic theory behind the Court’s decisions is that an insurer would be unjustly enriched by avoiding such payments and that this unjust result would come at the expense of the provider.
Such unjust enrichment of an insurance company can be avoided by insisting that the insurer pay a family member who cares for a catastrophically injured worker on a quantum meruit basis. This care can take many forms, including the supervision of a worker who suffered a traumatic brain injury and requires constant monitoring to deal with the effects of short-term memory loss, inability to multi-task, difficulty with control of emotions, and the myriad of other behaviors of a person who suffers such a devastating injury.
Workers’ compensation insurance companies are extremely aware of the implications of such medical care and generally do not volunteer to compensate family members for their work. It falls upon the family to seek these payments themselves at a time when it is dealing with what can be an overwhelming situation.
When faced with this circumstance do not fall for the argument that it may be best to place a loved one in a skilled nursing facility. While this may be an option, it is not the only option. An injured worker cannot be forced to live apart from his or her family because an insurer refuses to provide payments for the medical services required to remain at home.
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