Boylan v. Verizon Wireless

736 S.E.2d 773, 224 N.C. App. 436, 2012 WL 6584422, 2012 N.C. App. LEXIS 1467
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 2012
DocketNo. COA12-856
StatusPublished
Cited by2 cases

This text of 736 S.E.2d 773 (Boylan v. Verizon Wireless) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boylan v. Verizon Wireless, 736 S.E.2d 773, 224 N.C. App. 436, 2012 WL 6584422, 2012 N.C. App. LEXIS 1467 (N.C. Ct. App. 2012).

Opinions

STROUD, Judge.

[438]*438I. Background

On 21 July 2003, Sheryl Boylan (“plaintiff’) was injured while working for Verizon Wireless, which is insured by Sedgwick CMS (“defendants”). The facts surrounding plaintiff’s injury and subsequent treatment are laid out in Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155 (2009) (“Boylan I”), disc. rev. denied, 363 N.C. 853, 693 S.E.2d 918 (2010), and we will not repeat them here.

The only issues on appeal concern plaintiff’s entitlement to attendant care, the details thereof, whether plaintiff is entitled to home modifications relating to her disability, and whether she is entitled to interest on her prior attendant care award.

On 23 April 2004, Misty Boylan, plaintiff’s daughter, began taking care of her mother’s daily needs, including cooking, cleaning, and other daily chores that plaintiff could not do on her own because of her compensable back injury. When Misty. Boylan moved away in October 2007, Regina and Nathan Locklear began providing plaintiff’s attendant care. On 16 January 2008, the initial hearing in this matter was held before Deputy Commissioner Houser. A hearing was then held before the Full Commission, which, by Opinion and Award entered on 9 December 2008, awarded all of plaintiff’s attendant care providers $8 per hour for past attendant care provided and stated that the Locklears were entitled to that same amount for ongoing attendant care provided to plaintiff. Defendants appealed on this issue, among others, to this Court and we affirmed the award of attendant care. Boylan I, 201 N.C. App. at 88, 685 S.E.2d at 160.

On 12 April 2009, Misty Boylan moved back into her mother’s house and took over attendant care responsibilities from the Locklears. As the Commission had not provided for any future changes in attendant care providers, defendants did not pay Misty Boylan for her attendant care services. Plaintiff and defendants both filed a Form 33 requesting a hearing on this issue.

A hearing was held on 14 January 2011 before Deputy Commissioner Houser. The parties then appealed to the full Industrial Commission which entered its Opinion and Award on 7 March 2012. The Commission awarded plaintiff $8 per hour for eight hours per day for attendant care services provided before 12 April 2009 by Misty Boylan, and $10 per hour for eight hours per day for ongoing care, whether provided by Misty Boylan, the Locklears, or if they were [439]*439unable to provide care, a professional caregiver.1 The Commission also awarded plaintiff modifications to her home at defendants’ expense. The Commission denied plaintiff’s request for interest on her attendant care award from 23 August 2004 to 12 April 2009. Defendant appeals from the award of attendant care and home modifications; plaintiff appeals from the denial of interest on the prior attendant care award.

II. Standard of Review

[Rjeview of a decision of the Industrial Commission is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law. The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings. This court reviews the Commission’s conclusions of law de novo.

McLaughlin v. Staffing Solutions, 206 N.C. App. 137, 143, 696 S.E.2d 839, 844 (2010) (citation and quotation marks omitted).

III. Defendant’s Appeal

Defendant appeals from the Award and Opinion of the Full Commission awarding plaintiff attendant care from 12 April 2009 onward and awarding plaintiff replacement wheelchair ramps for her home, claiming there was insufficient competent evidence to support the Commission’s factual findings and that the factual findings did not support the conclusions of law.

A. Attendant Care

This Court has previously addressed nearly the same question between these two parties. In Boylan I, this Court affirmed the Industrial Commission’s 2008 Award and Opinion ordering defendants to pay for plaintiff’s attendant care. In its October 2008 Award and Order, affirmed by this Court in Boylan I, the Industrial Commission found that attendant care, which had previously been performed by Misty Boylan, Regina Locklear, and Nathan Locklear, was medically beneficial. Because Misty Boylan had ceased providing care for her mother at the time of the 2008 award, the Full Commission only awarded her compensation for past attendant care services, while [440]*440awarding past and ongoing attendant care compensation to the Locklears. On 19 October 2009, defendants filed a Form 33 Request for Hearing alleging that plaintiffs claim for attendant care has been “rendered moot by Defendant’s modifications to plaintiff’s home and Plaintiff’s medical improvements.” When the Locklears stopped providing attendant care to Mrs. Boylan, Misty Boylan resumed caring for her mother, but Defendants refused to compensate her for ongoing attendant care, as it had not been specifically addressed in the prior award.

Defendants argue that there was no competent evidence to support the Commission’s finding that plaintiff would “benefit medically” from Misty Boylan’s attendant care. Defendants challenge findings of fact 21, 22, 24, 31, 32, and 33. Defendants do not challenge any other finding of fact and therefore they are binding on appeal. Garner v. Capital Area Transit, 208 N.C. App. 266, 271, 702 S.E.2d 319, 323 (2010). Defendants also assert that “the Commission failed to make the necessary findings of fact and conclusions of law as to whether Plaintiff’s medical improvement from the spinal cord stimulator and home improvements nullified any medical need for the attendant care requested.” For the following reasons, we hold that there was competent evidence to support the Commission’s findings of fact and that the findings of fact justify the conclusions of law as to attendant care for plaintiff.

The Commission made the following relevant findings of fact2:

5. Plaintiff’s back pain and other symptoms vary daily
8. Regarding the activities of daily living, due to her physical disabilities plaintiff testified that she requires assistance while getting into the shower, dressing, ambulation, taking her medication, preparing meals, cleaning, doing laundry, and performing yard work. When not assisted by her family, plaintiff is unable to safely prepare food or meals. Also, plaintiff is currently [441]*441unable to drive, and she requires assistance running errands, shopping, and filling her prescriptions.
15. On April 12, 2009, Ms. Misty Boylan moved back into plaintiffs home and resumed the role of assisting plaintiff with the activities of daily living.
32.

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736 S.E.2d 773, 224 N.C. App. 436, 2012 WL 6584422, 2012 N.C. App. LEXIS 1467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boylan-v-verizon-wireless-ncctapp-2012.