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Appellate Division Clarifies Rule on Reimbursements to Family Members Providing Home Health Care

On July 13, 2017, the Supreme Court of New York, Appellate Division, Third Department, issued a decision clarifying the rule that reimbursements for home health services provided by family members are payable directly to the claimant.

In Matter of Buckner v. Buckner & Kourofsky, LLP, 152 AD3d 921 (2017), the claimant, after having had a claim established for multiple work-related injuries resulting from a stroke, was classified with a permanent total disability. The claimant required home health care services, some of which were provided by his wife.

In a Notice of Decision following claimant’s classification, the Workers’ Compensation Law Judge (WCLJ) directed the carrier to reimburse claimant’s wife directly for home health care services she provided.

The claimant appealed, asserting that the award for reimbursement of home health services provided by his wife was payable directly to him. The Board affirmed the WCLJ’s decision.
The Board relied on Matter of Perrin v. Builders Resource, Inc., 116 AD3d 1208 (2014), in its decision to affirm. In that case, the issue on appeal was whether the Board had properly reduced the rate of pay from $25 an hour to $12 an hour for home health care services provided by claimant’s sister. The Court ruled that the claimant was not aggrieved by the rate of pay set for his sister and that any disagreement on the rate was between the carrier and the sister.

The Third Department, however, reversed the Board’s decision and indicated its reliance on Perrin was erroneous. The Court stated that it had previously held “that payment of the reimbursement of the costs for [a spouse’s] services must be made to [the] claimant, not to the spouse,” quoting Matter of Manning v. Niagara Mohawk Power Corp, 198 AD2d 561, 563 (1993). The Court further stated that the Perrin decision did not overrule longstanding precedent as to whom reimbursement of payments is made with regard to home health care services provided by family members.
As such, the Court reversed the Board’s finding and ruled that the reimbursement award for home health care services provided by his wife was payable directly to claimant.

Insurance carriers and their defense counsel should be aware going forward that while claimants themselves cannot dispute the rate of pay set by a WCLJ to family members for home health care services, reimbursement awards for those services are payable directly to the claimant.

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