From the Los Angeles Times
Pay for caregivers a workers' comp secret
Even though they're often performing it out of love and commitment, those who assume nursing care may be paid for their work
Originally published Jun 25, 2003

Kathy M. Kristof
LOS ANGELES -- Ruben Castaneda of City of Commerce was working late one night when he tried to lift two heavy pails of ink and herniated five disks in his back. The 1995 injury touched off a series of operations that has dramatically changed his life and the life of his wife, Susan.

Ruben couldn't be left alone after the surgeries, Susan said. He was in constant pain, and though determined to do things for himself, he'd fall. His doctor recommended that they hire home health workers, but the insurer never sent an aide and the Castanedas couldn't afford to hire one. Susan, a self-employed Spanish/English interpreter, had to pick up the slack.

"I couldn't go out in the field - I had to try to get jobs I could do from home," she recalled. "All my days off were scheduled around whatever procedure he was going to have done."

Like many with a seriously injured spouse, Susan didn't think about filing a claim with the workers' compensation insurer for the care she gave her husband.

Yet the family's finances were being decimated. Because of Ruben's lost wages and Susan's inability to work while caring for him, the couple depleted their savings.

They sold their motor home and boat and borrowed money from relatives, hoping to stay afloat long enough for Ruben to recover.

Caregivers such as Susan can be paid for their work even though they're often performing it out of love and commitment, said attorney Ken Berman, who founded a Toluca Lake law firm called CareLaw. But it's the best-kept secret in the workers' compensation market, he said.

Workers' compensation laws allow insurers to pay for assistance care when workers have been so severely injured that they can't fend for themselves. Although family members usually don't think they can be compensated for providing this assistance, in many instances they can, industry experts said.

Even though workers' compensation laws vary among states, payment for attendant care is available nationwide, said Keith Bateman, vice president and director of workers' compensation at the Alliance of American Insurers in Downers Grove, Ill.

It doesn't matter whether the care is provided by a spouse, child or friend - nor does it matter whether the person providing the care previously was employed, he said.

"You are not really compensating the spouse," Bateman said. "You are providing an aspect of medical treatment."

Family caregivers often say they were never told about the possibility of payment. "In 20 years of doing this and handling literally thousands of cases, only once has the insurer volunteered this information," Berman said.

Some caregivers say that insurers even deny that it's an option.

Compensation denied

That's what happened to Paul Smith, whose wife suffered a disabling spinal injury two years ago.

Several months after she was injured - and after he shelved his consulting work to attend to her needs six to eight hours a day - the workers' compensation insurer asked him to take her to a specific doctor two hours away from their Sacramento home. He asked the insurer whether he could be compensated for his time to make up for the work he was losing.

"They said no. All they'd pay for was mileage, parking and tolls," Smith said. "My attorney at the time said the same thing. "It didn't occur to me that they'd be wrong."

Smith recently submitted a claim to the workers' compensation carrier for three years of nearly full-time care at $21 an hour. He's waiting for a response.

One reason consumers aren't told about the possibility of compensation for attendant care is because it's a gray area of the law, said Paul Glad, managing partner at the San Francisco law office of Sonnenschein, Nath & Rosenthal.

"There is not a specific code provision, but with a serious case, these types of arrangements can be approved by the court," Glad said.

Indeed, in the vast majority of workers' compensation cases, attendant care is not necessary. It's prescribed only for injuries that cause the worker to lose the ability to perform activities of daily living - eating, walking, dressing, bathing, getting in and out of bed and going to the bathroom.

In those cases, the insurance company should either send professional caregivers or compensate family members who provide the assistance, Berman said.

If a family member provides the care, he or she should keep detailed records about the services being performed, why and when.

The hourly rate paid the family caregiver has nothing to do with the amount they forgo from other work, he said. It's calculated based on the cost of hiring a professional attendant to do the same work in the same geographic area. In cases Berman has handled, spouses were paid $12 to $40 an hour depending on the nature of the care and the location.

Castaneda, who primarily cooked, cleaned and drove her husband to doctors' appointments, got $12 an hour. Another client, Sandra Gartner of Las Vegas, submitted a claim for $40 an hour. The reason: She was called on to do skilled nursing care that included changing her husband's IV, replacing bandages and draining his wounds. The insurer sent a nurse to their home to train her but never mentioned that she could be paid for assuming the nurse's job.

"I felt guilty submitting a claim because I did this out of love," Gartner said. "But the insurance company would have spent hundreds of thousands of dollars for nurses."

Retroactive

In some circumstances, caregivers can be retroactively compensated. As long as a workers' compensation case remains open - until it's concluded with a final settlement - caregivers can submit claims, Berman said.

Rosalee Lambright, for example, received a check last week for $134,000. The former seamstress from Azusa has cared for her husband since he was injured 14 years ago.

When that care became so time-consuming that she had to quit her job, they lived on disability payments that amounted to a small fraction of their former income. She didn't know she could be paid to take care of him.

"It was very tough," she said. "It doesn't take long to eat through everything you've got."

But it wasn't easy to get paid for her service, even after she filed the claim. She sued the insurance company, which settled on the day the trial was to begin, Berman said.