THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
RIEDMANN, Judge.
INTRODUCTION
Seal-Rite Insulation and Iowa Mutual Insurance Company, its workers' compensation insurance carrier (collectively Seal-Rite), appeal from the order of the Workers' Compensation Court review panel affirming the trial court's award of home health care benefits. Because we find the evidence does not support the findings, we reverse, and remand.
BACKGROUND
On January 5, 2001, Rick Traffansetdt sustained severe injuries, including a traumatic brain injury, when he fell through a ceiling while working in the course and scope of his employment with Seal-Rite Insulation. The parties stipulate that Traffansetdt is totally disabled and unable to work as a result of his injuries.
Traffansetdt was hospitalized following the accident. The discharge summary from the hospital indicated that Traffansetdt was able to eat, urinate, stool, and ambulate without difficulty. The discharge instructions asked Traffansetdt to follow up with the trauma surgery clinic, take medications as prescribed, and resume activity as tolerated.
Traffansetdt's wife, Lola Miller (Lola), noticed numerous changes in Traffansetdt after the accident, including issues with concentration, sequencing, anger and impulse control, "zoning out," seizures, fatigue, severe headaches, losing things, lack of focus, and difficulty walking. According to Lola's testimony at trial, every day was different, but generally, she would have to help him shower and shave, set out his clothes, cook, set out his pills, take him to doctors' appointments, clip his toenails and fingernails, and just basically be there to make sure he did not hurt himself. Lola continued to assist her husband in this capacity until they separated on August 23, 2010.
A case manager with Concentra Managed Care Services (Concentra) was assigned on January 29, 2001, to monitor Traffansetdt's condition and medical treatment. The Concentra records indicate that the case manager communicated with Traffansetdt's medical providers and summarize the coordinated efforts of those treating physicians. Because Traffansetdt achieved maximum medical improvement on September 19, 2002, Concentra completed its case management services on December 30, 2002.
Traffansetdt received medical treatment from numerous providers after the accident. He began treating with a psychiatrist, Dr. Bruce Gutnik, on July 11, 2001, and treatment continued until Traffansetdt and Lola moved to Texas in August 2007. Dr. Gutnik's records summarize Traffansetdt's frustrations with his inability to drive and work, his fears about money problems, his boredom, his desire to lose weight but inability to control his eating, his anger outbursts, and his depression. In a medical questionnaire dated February 26, 2007, Dr. Gutnik agreed that Traffansetdt could not maintain independent housing without the assistance of Lola and that if she was unable to provide care, Dr. Gutnik would recommend home health care and/or assisted living.
In August 2007, Traffansetdt and Lola moved to Texas to be closer to family. A new case manager in Texas with Corvel was appointed on April 15, 2008. Similar to Concentra's records, Corvel's records summarize the coordination of Traffansetdt's medical care. On July 9, 2008, the new case manager noted that because Traffansetdt was having difficulty with any type of independent ambulation, he "needs 1-2 plus assistance" and that she was ordering home health physical and occupational therapy and a home aide for bathing assistance.
Traffansetdt's primary care physician in Texas began treating him on June 26, 2008. On July 30, she noted in her records that Traffansetdt was unable to care for himself throughout the day without assistance. She also authored a report dated January 13, 2011, wherein she opined that Traffansetdt was unable to live independently.
Traffansetdt was treated by several other medical care providers in Texas. He treated with a psychologist, who stated on August 5, 2010, that he believed Traffansetdt would most benefit from referral to a program or facility specializing in treating patients with neurobehavioral brain disorders. The psychologist also believed that it would be appropriate to consider referring Traffansetdt to a residential/structured living facility for brain injured patients.
A clinical neuropsychologist evaluated Traffansetdt on September 8, 2010. He concluded that Traffansetdt's mood and behavior had become more unmanageable in the past 3 years and that for this reason, Traffansetdt would require significant around-the-clock supervision, as he posed a significant threat to those who tried to restrict his activities.
In a letter dated April 22, 2010, Traffansetdt's counsel requested payment for home health care benefits from Iowa Mutual Insurance Company. The letter indicated that Lola had been providing assistance with all of Traffansetdt's home health care needs for 3 hours per day every day since the date of the accident. Seal-Rite agreed that Traffansetdt was entitled to home health care benefits beginning on February 26, 2007, the date of Dr. Gutnik's report, through August 23, 2010, the date the parties separated. Seal-Rite issued a check to Traffansetdt for 3 hours of assistance per day at $9 per hour, subtracting time when Traffansetdt was hospitalized or receiving alternate care, for total payment of $34,000.
On May 18, 2011, the parties litigated the issue of home health care benefits. The Workers' Compensation Court found that Seal-Rite had knowledge of the need for home health care assistance because it had been monitoring Traffansetdt's medical treatment from the date of injury and because the "clinical charts of the many medical providers are replete with references to the diminished cognitive function, increased frustration and unpredictable episodes of anger outburst toward family, friends and strangers when in public." The trial court awarded home health care benefits for 3 hours per day from January 6, 2001, to February 10, 2008, and for 16 hours per day from February 17, 2008, to August 23, 2010.
Seal-Rite appealed to the Workers' Compensation Court review panel, and a hearing was held on January 24, 2012. The review panel affirmed the trial court's award, finding there was "ample evidence" to support the finding that Seal-Rite acquired knowledge through its case managers and nursing assistants. Seal-Rite timely appeals.
ASSIGNMENTS OF ERROR
Seal-Rite alleges the review panel erred in (1) applying a constructive notice standard in finding that Seal-Rite had contemporaneous knowledge of the need for home health care assistance and the nature and extent thereof; (2) finding that Seal-Rite acquired knowledge of the need for spousal home health care through the nurse case manager retained by Seal-Rite as there was no competent medical evidence or record to support such a finding; (3) awarding 3 hours per day in spousal home health care benefits from January 6, 2001, to February 10, 2008; and (4) awarding 16 hours per day in spousal home health care benefits from February 17, 2008, to August 23, 2010.
STANDARD OF REVIEW
A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is no sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Neb. Rev. Stat. § 48-185 (Cum. Supp. 2012).
In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the trial judge who conducted the original hearing; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong. Lovelace v. City of Lincoln, 283 Neb. 12, 809 N.W.2d 505 (2012). With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Id.
ANALYSIS
Seal-Rite assigns that the review panel erred in applying a constructive notice standard to find that Seal-Rite had knowledge of Traffansetdt's need for home health care assistance. Seal-Rite also assigns that the review panel erred in finding that knowledge of the need for home health care was acquired through the case manager. We address these assignments together.
To determine whether the claimant is entitled to workers' compensation benefits for home health care, the employee must prove three basic requirements:
(1) The employer must have knowledge of the employee's disability and need of assistance as a result of a work-related accident; (2) the care given by the spouse or other health care provider must be extraordinary and beyond normal household duties; and (3) there must be a means of determining the reasonable value of the services rendered by the spouse or other health care provider.
Quinn v. Archbishop Bergan Mercy Hosp., 232 Neb. 92, 95-96, 439 N.W.2d 507, 510 (1989). The second and third requirements are not at issue here. Compensable home health care tasks include serving meals in bed, bathing and dressing, administering medication, and assisting with sanitary functions. Id.
The trial court found that Seal-Rite had knowledge of the need for home health care because it had been monitoring Traffansetdt's medical treatment from the date of injury, and there were numerous statements in the medical records of Traffansetdt's condition. The court specifically stated that
it is not necessary that a physician prescribe or directly notify an insurer of the need for home health care assistance. Knowledge of the need of assistance may be found from the clinical records of the medical care providers especially so when the patient's status is monitored by nurse care managers, as occurred in the present case. The clinical charts of the many medical providers are replete with references to the diminished cognitive function, increased frustration and unpredictable episodes of anger outbursts toward family, friends and strangers when in public.
The trial court also cited the records of Dr. Gutnik and the records from Concentra to determine that the case manager was aware of Lola's struggles to deal with Traffansetdt's behavior. The court specifically noted that by February 26, 2007, Dr. Gutnik was unequivocally reporting that home health care assistance was necessary.
Assuming without deciding that constructive knowledge through a case manager is sufficient, we find that the facts in this case do not support even a finding of constructive knowledge as of January 6, 2001. A case manager was not assigned to monitor Traffansetdt's case until January 29, 2001, nearly a month after the injury occurred. There is no evidence that any case manager was monitoring Traffansetdt's condition prior to Concentra's engagement, and Concentra ended its case management services on December 30, 2002. The case manager from Corvel was not appointed until April 15, 2008, and thus, there was a period of over 5 years during which no case manager was overseeing Traffansetdt's medical treatment.
Our review of the records from Concentra and Corvel reveal no indication that Traffansetdt required daily assistance dating back to January 6, 2001. On the contrary, a psychiatrist indicates in the Concentra record dated March 9, 2001, that he "did not think [Traffansetdt] needed adult day care as he has been okay this far at home by himself taking the same certain precautions that have been taken thus far, but it remains an option for the future should it become necessary."
We reviewed all of the medical records and observed the references to diminished cognitive function, increased frustration, and unpredictable episodes of anger outbursts upon which the trial court relied. However, we find nothing in these references to impute knowledge to Seal-Rite as of January 6, 2001, of the necessity for home health care.
The earliest explicit reference to Traffansetdt's need for assistance in performing daily tasks is the February 26, 2007, report of Dr. Gutnik. Early on in Traffansetdt's recovery, his medical providers thought he may eventually be able to return to work. On November 30, 2001, a neuropsychologist stated that employment was an option as Traffansetdt possessed many intact cognitive abilities. Similarly, on August 9, 2002, a doctor stated that "[f]rom a neurological standpoint, there are no work related restrictions." Accordingly, we conclude that there is no sufficient competent evidence in the record to warrant a finding that Seal-Rite had knowledge of the need for home health care on January 6, 2001.
We therefore reverse the judgment and remand the cause to the Workers' Compensation Court to determine when Seal-Rite had knowledge of Traffansetdt's need for home health care assistance and to determine the corresponding amount of home health care benefits due. As a result, it is unnecessary to address the remaining assignments of error.
CONCLUSION
We find the review panel erred in affirming the trial court's award of home health care benefits beginning on January 6, 2001. We reverse, and remand for a determination of the date Seal-Rite acquired knowledge of the need for assistance and for a determination of the amount of benefits due.
REVERSED AND REMANDED.
