On appeal from Department of Labor and Workforce Development, Division of Workers' Compensation, Claim No. 2008-27595.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Reisner.
Home Instead Senior Care (Home) appeals from a February 3, 2011 decision of the Division of Workers' Compensation in favor of Home's former employee, Euliet Smith (Smith or petitioner).
Because the decision of the Workers' Compensation judge is supported by substantial credible evidence and is consistent with applicable law, we affirm.
Home employed Smith, a fifty-one-year-old woman, as a live-in caregiver for an elderly woman*fn1 suffering from "a touch of Alzheimer's" disease. Smith worked for this client for about a year and four months, doing "[a]bsolutely everything in the household" including cooking, cleaning, bathing and dressing the client, and taking her to church and to medical appointments. Smith was on duty twenty-four hours a day, seven days a week with every other weekend off. Smith characterized this job as creating the "most stress [she] ever had."
Smith testified that she was required to work twenty-four hours a day and seven days a week because the client's condition meant that "she couldn't be by herself."*fn2 Smith described the client as "off the wall," and "crazy sometimes." The client would "go in the street" or "run outside" when Smith was in the bathroom, requiring Smith to "run out and catch her." Smith stated that the client was "like a little baby that you have to monitor 24 hours per day."
Smith testified that the client woke up every hour and a half, including multiple times at night. Smith was unable to get a full night's rest, because the client would wake her up to sew, feed the cats, feed the birds, cut the shrubs, and water the plants at "2 o'clock, 3 o'clock, 4 o'clock." Smith stated that she only slept "[o]n and off like may be 10, 20 minutes sometimes. The most I ever got is like an hour sleep." Smith was so exasperated with her work conditions that she complained to her employer numerous times, asked for assistance with the client, and even told the employer: "I got to leave this job." However, the employer was unresponsive to her concerns.*fn3
The job left Smith exhausted. During her weekends off, she went to church on Sunday and then slept most of the time because her body was "overwhelmed."
On July 30th, 2008, while Smith was sleeping at the client's house, the client woke up at 2:00 a.m., "rushed" into Smith's room and made "a big scream." Smith woke up shaking and shivering. She testified that it took her about a half hour before she felt well enough to get up and respond to the client's needs. At that point, she gave the woman some milk and they both went back to sleep. At around 5:30 a.m. Smith woke up with the client again and "felt funny." Smith testified that the left side of her face felt like something was pulling on it and her speech was "dreary" and "dribbling." She was also drooling, had numbness in her hand, and could barely speak.
Believing that she had suffered a stroke, Smith called Home and asked her employer to send someone to relieve her so she could go to the hospital. However, Home did not send anyone. After waiting in vain for help to arrive, Smith called the Home employee who normally relieved her on alternate weekends. When the co-worker arrived, Smith was finally able to go to the emergency room at JFK Hospital. At the hospital, Smith, who was not hypertensive or overweight, and had never smoked, imbibed alcohol or used drugs, was diagnosed to have had a stroke and was admitted into the stroke unit. Several days later, on August 5, 2008, Smith was determined to be in stable condition and was discharged from the hospital.
After her release, her treating doctors suggested that Smith not work full time. Smith then went to work for Qualcare for four hours a day, Monday through Friday. After Qualcare, Smith began to work in the hospice at JFK Medical Center for eight hours a day as a "certified home health [aide]." Smith testified that as a result of her stroke, she ...