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Brawn v. Gloria's Country Inn
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1997 ME 191
Docket:	WCB-96-319
Argued:	May 6, 1997
Decided:	August 13, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ.




GLORIA BRAWN v. GLORIA'S COUNTRY INN and AMERICAN FIDELITY/MGA INSURANCE CO.


LIPEZ, J.

	[¶1]  Gloria Brawn appeals from a decision of the Workers'
Compensation Board denying, in part, her petitions for payment of medical
expenses.  The Board ordered her employer, Gloria's Country Inn, to pay the
cost of adapting a van to accommodate Brawn's quadriplegia, but concluded
that the Inn could not be required to purchase the van.  39-A M.R.S.A. § 206
(Supp. 1996).{1}  The Board also denied Brawn's petition seeking payment for
the services of a part-time personal care assistant who performed
housekeeping services in the course of her duties.  Because we conclude
that, in the circumstances of this case, Brawn is entitled to the full cost of a
specially adapted van and reimbursement for the services of the part-time
personal care assistant pursuant to section 206, we vacate the decision of
the Board.
I.
	[¶2]  Brawn suffered a compensable injury on October 4, 1987 that
rendered her quadriplegic.  In addition to quadriplegia, Brawn suffers from
low blood pressure that causes dizziness and fainting.  She uses a specially
adapted wheelchair that weighs 300 lbs. and is not readily transportable in
ordinary vehicles.{2}  Gloria's Country Inn voluntarily purchased a van in 1989
that was specially adapted to accommodate Brawn's wheelchair and her
disability.  In 1994 Brawn filed a petition with the Board seeking payment of
the cost of a replacement van.  The employer has agreed to pay the cost of
adapting a van ($18,808), but disputes that it is required to pay for the cost
of the van itself ($22,600). 
	[¶3]  Since her injury, Brawn employs two personal care assistants in
addition to her husband who also performs the services of a personal care
assistant.  A part-time assistant works from 8:00 a.m. until noon; the other
works from 8:00 a.m. until 2:30 p.m.  After the personal care assistants leave
in the afternoon, Brawn's husband performs the services of a personal care
assistant until morning.  The assistants perform a variety of tasks for Brawn,
including bathing her, washing her hair, monitoring her blood pressure,
taking urine samples, purchasing and administering medications, typing
correspondence, taking her shopping and to do other outside errands,
wrapping Christmas and birthday gifts, and responding to emergencies,
such as frequent fainting or other accidents.  All of the personal care
assistants perform some housekeeping services, such as the preparation of
meals, washing floors and dishes, vacuuming, dusting, and keeping her
wheelchair and van clean.  
	[¶4]  The Inn does not dispute that Brawn requires 24-hour care and
has voluntarily paid for the services of the personal care assistants, including
hourly payment to Brawn's husband in his capacity as a personal care
assistant.  After our decision in Cote v. Georgia Pacific Corp., 596 A.2d 1004-
05 (Me. 1991), however, the Inn filed a Notice of Controversy with the
Board denying liability for the services of the part-time assistant, contending
that those services were purely housekeeping and not covered by the Act. 
In 1994 Brawn filed a petition with the Board requesting reimbursement for
the part-time personal care assistant at a rate of $9.00 an hour.
 	[¶5]  The Board granted, in part, Brawn's petition seeking the
replacement of her specially adapted van, concluding that the modifications
to the van were medically necessary to accommodate the employee's
wheelchair.  The Board also concluded, however, that the van itself is not a
physical aid for purposes of section 206 and therefore the Inn is not
required to purchase the van.  The Board found that Brawn must have at
least one personal care assistant on duty 24 hours a day and two assistants
during part of the day.  The Board denied Brawn's petition related to house-
keeping expenses, stating that

[t]he evidence indicates that Ms. Brawn has need for two
personal care assistants and, with a person as severely injured as
herself, it is artificial to say that certain of the tasks [the
personal assistants] perform are purely medical and others are
purely housekeeping.  Nevertheless, based upon my reading of
Cote, [596 A.2d at 1004-05,] the Petition to Fix seeking payment
for housekeeping expenses is denied.   

The Board denied Brawn's motion for findings of fact and conclusions of law
and we granted her petition for appellate review pursuant to 39-A M.R.S.A.
§ 322 (Supp. 1996). 	
II.
	[¶6]  The first paragraph of section 206 provides that "[a]n employee
sustaining a personal injury arising out of and in the course of employment
or disabled by occupational disease is entitled to reasonable and proper
medical, surgical and hospital services, nursing, medicines, and mechanical,
surgical aids, as needed, paid for by the employer."  39-A M.R.S.A. § 206. 
Subsection 8, dealing with "[p]hysical aids," provides, in pertinent part, that
"[t]he employer shall furnish artificial limbs, eyes, teeth, eyeglasses, hearing
aids, orthopedic devices and other physical aids made necessary by the
injury and shall replace or renew them when necessary from wear and tear
or physical change of the employee."  39-A M.R.S.A. § 206(8).
	[¶7]  Brawn contends that a specially adapted van is a "reasonable and
proper . . . mechanical . . . aid[]" for purposes of section 206 and a "physical
aid[] made necessary by the injury" for purposes of subsection 8 that the
employer must "replace or renew . . . when necessary from wear and tear." 
Brawn contends that her injury prevents her from using public
transportation, and that her only other transportation would be by
"ambulance, which can get her to medical appointments and medical
emergencies."  She contends that without a van she would be confined to
her home with no access to the outside world, and that the van is reasonably
necessary to provide basic mobility and to facilitate the use of her
wheelchair.  
	[¶8]  We have not addressed the issue whether an employer may be
required to provide a medically adapted van for an injured employee.  The
former Appellate Division of the Workers' Compensation Commission and
the Board have considered the issue on two occasions: Tufts v. R.A.
Cummings, Inc., Me. W.C.B. App. Div. 445, 448-49 (Me. 1993); LaCourse v.
Co-Hen Egg Co., Me. W.C.C. App. Div. 853, 854-55 (Me. 1992).  In both
cases, the Division concluded that the cost of a van is not a medical expense
for purposes of the Act, but that the cost of retrofitting the van is
compensable if it is necessary to permit the use of a "mechanical aid" or
"orthopedic device," such as a wheelchair.  Other jurisdictions are divided
on the issue of specially adapted vans.  See generally, 2 A. Larson, The Law of
Workmen's Compensation, § 61-13(a) (1993).  The cases can be divided
into three categories: (1) those that deny reimbursement not only for vans,
but also for modifications to cars or vans, R & T Constr. Co. v. Judge, 594
A.2d 99, 108 (Md. 1991); McDonald v. Brunswick Elec. Membership Corp.,
336 S.E.2d 407, 409 (N.C. 1985); (2) those that hold that modifications are
reimbursable but have not required employers to pay the full cost of the van,
Meyer v. North Dakota Workers' Compensation Bureau, 512 N.W.2d 680,
684 (N.D. 1994); Crouch v. West Virginia Workers' Compensation Comm'r,
403 S.E.2d 747, 750-51 (W.Va. 1991); and (3) those that have required the
employer to pay the cost of both the van and the modifications, Terry
Grantham Co. v. Industrial Comm'n, 741 P.2d 313, 316-17 (Ariz.App. 1987);
Manpower Temporary Servs. v. Sioson, 529 N.W.2d 259, 263-64 (Iowa
1995).  The differing results turn primarily on differing statutory language.
	[¶9]  Unlike the statutes in some jurisdictions, section 206 is not
limited to medical apparatus or aids, but extends to all "reasonable and
proper . . . mechanical . . . aids" and "physical aids made necessary by the
injury."  39-A M.R.S.A. § 206 (emphasis added).  We conclude that the terms
"mechanical" and "physical" "aids" in section 206 are broad enough to
include a van.  See Terry Grantham Co., 741 P.2d at 316-17 (van is "other
apparatus"); Crouch, 403 S.E.2d at 750-51 (W.Va. 1991) (van is a
"mechanical appliance").  The more difficult question is whether the van is
a "reasonable and proper" mechanical or physical aid.{3} 
	[¶10]  Given the facts of this case, we conclude that a van is a
reasonable and proper mechanical or physical aid.  As the Board concluded,
the van is reasonably necessary to facilitate the use of Brawn's wheelchair. 
The practical benefit of a 300-pound wheelchair is greatly diminished if
Brawn is effectively precluded from traveling beyond the boundaries of her
own home.  Moreover, in Brawn's case, the van, like the wheelchair, is
reasonably necessary to provide basic mobility.  The days have long passed
when transportation by car or similar vehicle could be considered a
"luxury."  This is especially true for severely handicapped individuals, like
Brawn, who are greatly restricted in their choice of alternative
transportation.  
	[¶11]  We do not suggest, however, that section 206 will always
require the employer to purchase a van for an employee with Brawn's level
of disability.  In some cases, the employee may have access to other methods
of transportation, or the employer may offer a reasonable alternative to the
purchase of a van.  Each case must be decided according to its own
particular facts and according to the statute's ultimate purpose to provide
reasonable relief from the effects of a work-related injury.  There is nothing
in the record before us to suggest that Brawn has access to any reasonable
method of transportation other than a specially modified van.  Indeed,
without a van, she is virtually confined to her home.  
	[¶12]  Although some jurisdictions have permitted employers to
deduct the cost of a medium-priced automobile from the purchase price of
specially adapted vans, Meyer, 512 N.W.2d at 684; Crouch, 403 S.E.2d at
751, we conclude that, based on the facts of this case, the employer is
responsible for the entire cost of the replacement van.  We find nothing in
the record to support the Board's finding that "Brawn would have need of a
vehicle whether or not she had been injured."  Due to the severity of her
disability, Brawn requires the exclusive use of a specially adapted vehicle in
case of emergencies for transportation to the hospital.  Indeed, because the
van must be available to Brawn at all times, Brawn's husband does not use
the van for family or personal purposes.  Even if the Brawn household owned
a family vehicle prior to the injury, the uncontradicted evidence reflects
that, as a result of her work-related injury, the Brawn family now requires
two vehicles-a family vehicle for Brawn's husband, and a retrofitted van for
Brawn.  We therefore conclude that Brawn is entitled to payment from the
employer for the reasonable cost of a replacement van.{4}  39-A M.R.S.A.
§ 206.
III.
	[¶13]  Brawn next contends that the Board erred by denying
reimbursement for the services of her part-time personal care assistant who
performed some housekeeping services.  The Inn contends that recovery of
housekeeping expenses is precluded by our holding in Cote, 596 A.2d at
1004-06.  The Inn's reliance on Cote is misplaced.  In Cote, the employee
was totally incapacitated for eighteen months and was instructed by his
physician to restrict his activities during that time.  Id. at 1004.  He paid his
sister $85 a week to prepare meals, clean house and do laundry for himself
and two teenage sons.  Id.  The Commission granted the employee's petition
seeking reimbursement for his sister's services, and we vacated the
Commission decision, concluding that the housekeeping services did not fall
within the definition of "reasonable and proper medical, surgical and
hospital services, nursing, medicines, and mechanical, surgical aids."  39
M.R.S.A. § 52 (1989), repealed and replaced by P.L. 1991, ch. 885, §§ A-7,
A-8. 
	[¶14]  The facts of this case are distinguishable from Cote.  Unlike
Brawn's part-time assistant, the housekeeper in Cote performed no medical
function.  596 A.2d at 1004.  The Board expressly found in this case that
Brawn requires two personal care assistants during certain periods of the
day as a matter of medical necessity.  The fact that the part-time assistant
also performs some housekeeping services during times when direct
medical care is not immediately required does not render her presence
unnecessary from a medical perspective.  Section 206 must be applied in
light of the practical realities of home-service care.  For example, if a
personal care assistant is medically required to perform a task at 8:00 a.m.,
9:00 a.m., and noon, it may not be reasonable to compensate the personal
assistant solely for the time spent performing those medically required
tasks.  Section 206 does not require an apportionment every time a personal
assistant performs a housekeeping task, and a personal care attendant
should not be disqualified from reimbursement for purposes of section 206
for performing some household services during a time that they must
otherwise be present.  
	[¶15]  In this case, the part-time personal care assistant performed
some tasks that may be described as housekeeping, and other services that,
in light of Brawn's condition, may be described as medical.  As the Board
stated in this case, "with a person as severely injured as [Brawn], it is
artificial to say that certain of the tasks [the personal assistants] perform are
purely medical and others are purely housekeeping."  It is not necessary in
this case to determine which tasks were purely housekeeping and which
tasks were purely medical.  We conclude that a personal care assistant who,
by reason of medical necessity, must be in attendance at certain times of the
day should be compensated for the reasonable time of service, even if
incidental household services are performed.  Bello v. Zavota Bros. Transp.
Co., 504 A.2d 1015, 1018-19 (R.I. 1986); Bituminous Casualty Corp. v. Deyle,
451 N.W.2d 910, 915-17 (Neb. 1990).  Accordingly, we vacate the decision
of the Board denying the employee's petition related to the payment of
housekeeping services.
	The entry is:
			The decision of the Workers' Compensation Board
vacated.  Remanded to the Workers' Compensation
Board for further proceedings consistent with the
opinion herein.
                                                               
Attorney for employee: Robert J. Stolt, Esq. (orally) Lipman & Katz, P.A. P O Box 1051 Augusta, ME 04332-1051 Attorney for employer: Paul H. Sighinolfi, Esq. (orally) Jane E. Skelton, Esq. Rudman & Winchell P O Box 1401 Bangor, ME 04402-1401
FOOTNOTES******************************** {1} The parties concede that, although Brawn's injury preceded the effective date of title 39-A, this appeal is governed by 39-A M.R.S.A. § 206 and not former 39 M.R.S.A. § 52 (Supp. 1992), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8. Maine Workers' Compensation Act of 1992, P.L. 1991, ch. 885, § A-10(1) (effective January 1, 1993); Morgan-Leland v. University of Maine, 632 A.2d 748, 748-49 (Me. 1993). Section 206 and former section 52 contain virtually identical language with respect to this issue and therefore it makes little practical difference which stat