Sabino Carbajal v. ica/phelps dodge/gabb Robbins

SUPREME COURT OF ARIZONA
En Banc

SABINO CARBAJAL, ) Arizona Supreme Court
) No. CV-08-0359-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-IC 07-0054
THE INDUSTRIAL COMMISSION OF )
ARIZONA, ) ICA Claim
) No. 99326-000148
Respondent, )
) Carrier Claim
PHELPS DODGE CORP., ) No. 48846-57065
)
Respondent Employer, )
)
GAB ROBINS NORTH AMERICA, ) O P I N I O N
)
Respondent Carrier. )
_________________________________ )

Appeal from the Industrial Commission of Arizona
The Honorable Anthony F. Halas, Administrative Law Judge

AWARD SET ASIDE
________________________________________________________________

Opinion of the Court of Appeals, Division One
218 Ariz. 578, 190 P.3d 737 (App. 2008)

VACATED
________________________________________________________________

LAW OFFICE OF AIDA J. RICO Phoenix
By Aida J. Rico

And

LAW OFFICES OF CHARLES M. BREWER, LTD. Phoenix
By David L. Abney
Attorneys for Sabino Carbajal

JARDINE, BAKER, HICKMAN & HOUSTON, P.L.L.C. Phoenix
By Scott H. Houston
Attorneys for Phelps Dodge Corp. and GAB Robins North America
BRIAN CLYMER ATTORNEY AT LAW Tucson
By Brian I. Clymer
Attorneys for Amicus Curiae Southern Arizona Workers
Compensation Claimants’ Attorneys’ Association
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 An Arizona workers’ compensation statute requires

payment for “medical, surgical and hospital benefits or other

treatment, [or] nursing . . . reasonably required . . . during

the period of disability.” Ariz. Rev. Stat. (“A.R.S.”) § 23-

1062(A) (1995). We have been asked to determine whether certain

services provided by an injured worker’s spouse are compensable

under this statute. We hold that the compensability of these

services depends on the nature of the care provided and not the

status or identity of the service provider. We therefore vacate

the opinion below and set aside the Industrial Commission award.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 In November 1999, Sabino Carbajal suffered an

industrial injury, which caused cognitive problems and partial

paralysis on his right side. As a result, he requires full-time

supervision and intermittent attendant assistance.

¶3 Mr. Carbajal, who now resides in a full-time care

facility, initially lived at home following the accident.

During that time, his employer, Phelps Dodge, and its workers’

compensation carrier (collectively the “Carrier”) provided

attendant care for Mr. Carbajal. Each day, an attendant arrived

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at 6:00 a.m. or 7:00 a.m., helped Mr. Carbajal from bed, bathed

and dressed him, and helped him perform simple exercises. On

weekdays, the attendant transported Mr. Carbajal to an adult day

care rehabilitation center and returned him home at about 3:30

p.m. On Saturdays, after performing the morning routine, the

attendant left Mr. Carbajal with his wife at 9:30 a.m., and on

Sundays took him to church and returned him at 1:00 p.m. Each

night between 6:30 p.m. and 9:30 p.m., the attendant assisted

Mr. Carbajal with range of motion exercises and prepared him for

bed. The Carrier also provided a nurse who visited weekly and

was on call for significant health issues.

¶4 At all other times, Mr. Carbajal was under his wife’s

care. In addition to supervising her husband during these

hours, Mrs. Carbajal gave him his medication in the morning;

specially prepared his food; cleaned him when he was returned

from day care soiled; and moved him between his wheelchair and

his bed, the toilet, or his recliner. When the scheduled

attendants did not arrive, Mrs. Carbajal performed their

assigned tasks. Several times each night Mrs. Carbajal checked

the oxygen levels on Mr. Carbajal’s sleep apnea mask and

sometimes helped him to the bathroom or cleaned him if he soiled

himself. The Carrier paid for Mrs. Carbajal to receive training

on monitoring Mr. Carbajal’s oxygen levels and transferring him

from his bed to his wheelchair. When Mrs. Carbajal took out-of-

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town trips, Mr. Carbajal was placed in a 24-hour care facility.

¶5 Mr. Carbajal, through his legal guardian, requested

payment for attendant care services provided by Mrs. Carbajal,

which the Carrier denied. Following an Industrial Commission

hearing, the Administrative Law Judge (“ALJ”) denied

compensation, concluding that Mrs. Carbajal’s services were

“akin to the day-to-day duties assumed by a spouse in accord

with the marriage commitment.” The ALJ reasoned that whether “a

paid attendant would otherwise be required” was immaterial to

whether the statute requires compensation. Mr. Carbajal filed a

statutory special action. See A.R.S. § 23-951(A) (1995); Ariz.

R.P. Spec. Act. 10.

¶6 A divided panel of the court of appeals affirmed.

Carbajal v. Indus. Comm’n, 218 Ariz. 578, 584, ¶ 24, 190 P.3d

737, 743 (App. 2008). The court interpreted the statutory

phrase “other treatment” to include only skilled attendant care

services that fall within the class of “medical, surgical and

hospital benefits.” Id. at 583-84, ¶¶ 22-23, 190 P.3d at 742-

43. Judge Kessler dissented, concluding that the majority

incorrectly narrowed the covered services and placed a burden on

the claimant that should have been borne by the employer. Id.

at 587, 592, ¶¶ 40, 55, 190 P.3d at 746, 751 (Kessler, J.,

dissenting).

¶7 We granted Mr. Carbajal’s petition for review because

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this case presents an issue of first impression and statewide

importance. See ARCAP 23(c). We have jurisdiction under

Article 6, Section 5(3) of the Arizona Constitution and A.R.S.

§ 12-120.24 (2003).

II. DISCUSSION

¶8 Arizona Revised Statutes Section 23-1062(A) requires

compensation for “medical, surgical and hospital benefits or

other treatment, nursing, medicine, surgical supplies, crutches

and other apparatus, including artificial members, reasonably

required at the time of the injury, and during the period of

disability.” Two statutory requirements are at issue here: To

be compensable, the services must fall within one of the

categories listed in the statute, and the services must be

“reasonably required.”

A. The Court of Appeals Opinion

¶9 In addressing the first requirement, the court of

appeals focused on the term “other treatment” and applied the

doctrine of ejusdem generis1 to determine its meaning. Carbajal,

218 Ariz. at 581-82, ¶¶ 13, 17, 190 P.3d at 740-41. Analyzing

the phrase “medical, surgical and hospital benefits or other

1
Under the ejusdem generis doctrine, “general words which
follow the enumeration of particular classes of persons or
things should be interpreted as applicable only to persons or
things of the same general nature or class.” State v. Barnett, 142 Ariz. 592, 596, 691 P.2d 683, 687 (1984).

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treatment,” the court determined that “other treatment” is

limited to “other [medical] treatment.” Id. at 582, ¶ 17, 190

P.3d at 741 (alteration in original). The majority thus

concluded that the statute covers only those services that are

“typically performed only by trained attendants.” Id. at 582-

83, ¶ 20, 190 P.3d at 741-42.

¶10 When construing workers’ compensation statutes, we

favor interpretations that make the claimant whole. See

Nicholson v. Indus. Comm’n, 76 Ariz. 105, 108, 259 P.2d 547, 549

(1953). The court of appeals’ interpretation of the statute not

only denies the claimant redress, but effectively renders the

phrase “other treatment” superfluous. See Ariz. Dep’t of

Revenue v. Action Marine, Inc., 218 Ariz. 141, 143, ¶ 10, 181

P.3d 188, 190 (2008) (advising against interpretations that

render statutory words or phrases “meaningless, unnecessary, or

duplicative”). Under the standard set by the court of appeals,

services that qualify as “other treatment” would also appear to

qualify as “medical, surgical and hospital benefits” or

“nursing.” To avoid such duplication, the listed categories in

§ 23-1062(A) should be construed as encompassing expenses not

generally covered by the others.

¶11 The court of appeals majority relied on Hughes v.

Industrial Commission, 188 Ariz. 150, 933 P.2d 1218 (App. 1996),

as support for a narrow construction of the term “other

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treatment.” In Hughes, the claimant sought compensation for

child care services incurred because, as a result of an

industrial injury, she could not care for her child. Id. at

151, 933 P.2d at 1219. The court rejected Hughes’s claim,

concluding that “other treatment” means other medical treatment.

Id. at 154, 933 P.2d at 1222. Hughes, however, addressed a

claim far removed from the types of services covered by the

listed categories. Rather than seeking payment for services to

cure or ameliorate the health effects of her injury, Hughes

sought compensation for services she formerly provided to

another. The court noted this distinction in Hughes, id. at

154, 933 P.2d at 1222, and we read nothing more into its use of

the phrase other “medical treatment.”

¶12 To help it distinguish compensable attendant services

from non-compensable housekeeping duties, the court of appeals

analyzed two opinions from other jurisdictions, Warren Trucking

Co. v. Chandler, 277 S.E.2d 488 (Va. 1981), and Close v.

Superior Excavating Co., 693 A.2d 729 (Vt. 1997). See Carbajal,

218 Ariz. at 581-82, ¶¶ 15-16, 190 P.3d at 740-41.

¶13 Warren Trucking involved a disabled claimant’s request

for compensation for services performed by his spouse in

attending to his needs. 277 S.E.2d at 492. The claimant’s wife

helped him bathe, shave, and put on braces, and she prepared his

meals, drove the car, and maintained the household. Id. at 491.

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When the claimant lost consciousness, his wife revived him. Id.

Virginia’s statute provided benefits for “a physician . . . and

such other necessary medical attention . . . as the nature of

the injury may require.” Id. at 492 (quoting Va. Code Ann.

§ 65.1-88). The Virginia court concluded that under this

statute, to qualify as compensable “medical attention” the

spouse’s care must, among other requirements, be “performed

under the direction and control of a physician” and be “the type

[of care] usually rendered only by trained attendants and beyond

the scope of normal household duties.” Id. at 493. The court

rejected the claim because the care rendered by the wife was not

prescribed by a doctor and was not “of the type usually rendered

only by trained attendants.” Id. at 494.

¶14 In Close, the claimant received a severe head injury

and required 24-hour supervision. 693 A.2d at 730. The

claimant’s wife cared for him at home, including

“administer[ing] and monitor[ing] his medications[,] . . .

alter[ing] the doses [of medication,] . . . log[ging] . . . her

husband’s behavior[, and] monitoring her husband’s seizure

activity and responding appropriately.” Id. The Vermont

statute provided benefits for “reasonable surgical, medical and

nursing services.” Id. at 731 (quoting Vt. Stat. Ann. tit. 21,

§ 640(a)). In concluding that the wife’s services were

compensable, the court rejected the “rigid framework” of Warren

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Trucking, in part because it “would . . . conflict with [its]

longstanding practice of construing the workers’ compensation

statute liberally.” Id. at 732.

¶15 The court of appeals here found Warren Trucking more

persuasive than Close. Carbajal, 218 Ariz. at 583, ¶ 20, 190

P.3d at 742. We conclude, however, as the Vermont Supreme Court

did, that Warren Trucking’s rigid framework does not further the

remedial purposes of workers’ compensation statutes. See 693

A.2d at 732; see also Nicholson, 76 Ariz. at 108, 259 P.2d at

549 (noting that we construe workers’ compensation statutes

liberally “with a view of effectuating their evident purpose of

placing the burden of injury and death upon industry” (quoting

Ocean Accident & Guar. Corp. v. Indus. Comm’n, 32 Ariz. 265,

272, 257 P. 641, 643 (1927))). We find Close more helpful

because the Vermont statute, like the Arizona statute, broadly

covers reasonable surgical, medical, and nursing services.

Compare A.R.S. § 23-1062(A), with Vt. Stat. Ann. tit. 21,

§ 640(a). In contrast, the Virginia statute at issue in Warren

Trucking, which mandated payment only for “a physician . . . and

such other necessary medical attention,” substantially differs

from § 23-1062(A). Warren Trucking, 277 S.E.2d at 492. Warren

Trucking therefore does not assist in interpreting Arizona’s

statute. Under Arizona law, compensability turns on the nature

of the services, not on the identity of the provider.

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B. Nature of Services Provided

¶16 Mr. Carbajal received several hours of attendant care

each week, for which the Carrier paid. Some services rendered

by the attendants, such as dressing and driving Mr. Carbajal,

are not medical or curative treatment, but rather constitute

palliative care.2

¶17 The Carrier acknowledges that A.R.S. § 23-1062(A)

implicitly covers such palliative care. We agree; by extending

compensation for services rendered after a claimant becomes

medically stationary, the legislature intended to include

coverage for reasonably required palliative care. See 1973

Ariz. Sess. Laws, ch. 133, §§ 30, 32 (1st Reg. Sess.) (extending

medical, surgical, and hospital benefits to periods of permanent

2
Palliative care involves managing the claimant’s symptoms
or mitigating the effects of the claimant’s injury. See 5
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law § 94.04 (2008); see also Jackson v. Columbia Pictures, 610
So. 2d 1349, 1351 (Fla. Dist. Ct. App. 1992); O’Donnell v.
Workers’ Comp. Appeal Bd., 831 A.2d 784, 791 (Pa. Commw. Ct.
2003). Palliative care differs from curative treatment, which
is designed to reduce the level of injury or end the disability.
See 5 Larson & Larson, supra, § 94.04. Once a claimant is
“medically stationary,” medical care cannot cure or improve the
claimant’s medical condition. See Hardware Mut. Cas. Co. v.
Indus. Comm’n, 17 Ariz. App. 7, 9-10, 494 P.2d 1353, 1355-56
(1972). Becoming medically stationary demarcates the transition
from the period of “temporary disability” to the period of
“permanent disability.” Id. Once the claimant is medically
stationary, treatment is necessarily palliative rather than
curative because, by definition, it cannot improve the
claimant’s condition. See id.

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disability).

¶18 Certain services Mrs. Carbajal provided were identical

to those rendered by paid attendants. For example, when

attendants failed to show up, Mrs. Carbajal performed the

services they would have provided, such as bathing and dressing

Mr. Carbajal. The Carrier maintains that although Mrs. Carbajal

performed some of the services provided by paid attendants,

§ 23-1062(A) does not require compensation for Mrs. Carbajal’s

performance of these duties because she is not a licensed health

care provider. We fail to see the connection between licensure

and compensation. There is no suggestion that Mrs. Carbajal

lacks a required license or is otherwise unqualified to perform

the services in question. Nothing in the statute hinges

compensability of services to the fact of licensure, even though

some services compensable under § 23-1062(A) may only legally be

performed by licensed providers.3 Thus licensure of the service

provider is not the touchstone for determining the

compensability of services.

¶19 The Carrier’s claim that services are compensable when

performed by Carrier-provided attendants, but not when performed

by Mrs. Carbajal, therefore must turn on her status as Mr.

3
See, e.g., A.R.S. § 32-1455(A)(1) (2008) (making the
unlicensed practice of medicine a felony).

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Carbajal’s spouse. Yet the statute creates no such distinction.

The statute speaks only in terms of goods and services. The

compensability of services inquiry should focus on the nature of

the services provided, not on the identity of the service

provider. If an injured worker requires services compensable

under § 23-1062(A), then the employer must provide them. If the

employer fails to do so and thus puts that burden on the injured

employee’s spouse, compensation for the necessary services is

required by the statute. Those services provided by Mrs.

Carbajal that would constitute compensable palliative care if

performed by the Carrier-paid attendants are thus compensable.

C. Reasonably Required Care

¶20 Even if services fall within a compensable category,

§ 23-1062(A) does not require compensation for them unless they

are “reasonably required.” The ALJ did not decide whether the

care provided by Mrs. Carbajal was reasonably required because

he found that her services were “not of the type which

necessitates a trained attendant.” He opined that the fact that

“a paid attendant would otherwise be required in Mrs. Carbajal’s

absence” did not bring her services within the scope of § 23-

1062(A) or require the employer to pay for her services.

¶21 The Carrier contends that Mrs. Carbajal’s services

were not required because Mr. Carbajal could have performed many

of the tasks himself. It maintains that she provided these

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services only because he demanded that she do so. Whether the

services were reasonably required is a question of fact that we

leave for the ALJ to address in the first instance. Regnier v.

Indus. Comm’n, 146 Ariz. 535, 538, 707 P.2d 333, 336 (App. 1985)

(citing Lowman v. Indus. Comm’n, 54 Ariz. 413, 419, 96 P.2d 405,

407 (1939)).

III. CONCLUSION

¶22 For the foregoing reasons, we vacate the opinion of

the court of appeals and set aside the Industrial Commission

award. We remand the case to the Industrial Commission for

further proceedings consistent with this opinion.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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