An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA12-1238 NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
JOSEPH E. BURROUGHS, Employee, Plaintiff,
v. North Carolina Industrial Commission I.C. No. 584372 LASER RECHARGE OF CAROLINAS, INC., Employer, and NORGUARD INSURANCE COMPANY, Carrier, Defendants.
Appeal by defendants from opinion and award entered 27 June
2012 by the Full Commission of the North Carolina Industrial
Commission. Heard in the Court of Appeals 8 April 2014.
Lennon, Camak & Bertics, PLLC, by Michael W. Bertics and S. Neal Camak, for plaintiff-appellee.
Teague Campbell Dennis & Gorham, L.L.P., by John A. Tomei, for defendants-appellants.
HUNTER, Robert C., Judge.
Laser Recharge of Carolinas, Inc., (“Laser Recharge”)
together with its insurance carrier Norguard Insurance Company
(collectively “defendants”), appeal from an opinion and award
entered by the Full Commission of the North Carolina Industrial -2- Commission ordering defendants to pay compensation for 2,726
hours of attendant care services performed by plaintiff Joseph
E. Burroughs’s family members. On appeal, defendants argue
that: (1) this case must be remanded so that the Full Commission
may enter findings as to the timeliness of plaintiff’s request
for attendant care compensation; (2) certain aspects of
plaintiff’s need for attendant care are not compensable as a
matter of law; and (3) the Full Commission erred by awarding
reimbursement to plaintiff directly rather than to the specific
family members who performed the attendant care services.
After careful review, we reverse and remand to the Full
Commission.
Background
Defendants do not contest any of the Full Commission’s
findings of fact. Thus, the Full Commission’s findings are
presumed to be supported by competent evidence and are binding
on appeal. See Chaisson v. Simpson, 195 N.C. App. 463, 470, 673
S.E.2d 149, 156 (2009). The relevant findings of fact entered
by the Full Commission are as follows: Plaintiff began working
for Laser Recharge in 1997 as a delivery driver. On 30 November
2005, plaintiff suffered a compensable work-related injury to
his neck which required a multi-level cervical fusion surgery. -3- Plaintiff was found to be permanently and totally disabled as a
result of this injury.
Due to pain in his neck following the initial surgery in
November 2005, plaintiff had trouble performing many of the
household chores he was accustomed to doing, such as moving
trash to the curb and driving himself to medical appointments.
Defendants provided a transportation service to drive plaintiff
to medical appointments, but the drivers were unreliable, and
defendants discontinued this service at plaintiff’s wife’s
request. Based on the opinion of Dr. Steven Prakken (“Dr.
Prakken”), plaintiff’s pain management physician, the Full
Commission found as fact that plaintiff required two hours of
attendant care per day from 30 November 2005 to 31 May 2006 and
that this attendant care was provided by plaintiff’s wife and
other family members.
Beginning in the summer of 2006, plaintiff’s health began
to deteriorate. He no longer felt he could perform routine
household tasks, like yard work. He experienced increased pain
emanating from his neck into his arms. In September 2007,
plaintiff’s neurosurgeon, Dr. Russell Margraf (“Dr. Margraf”),
recommended additional neck surgery if plaintiff’s condition did
not improve. Over the next year, plaintiff continued to -4- experience pain in his neck, tingling in both hands, and
weakness in his right hand. Dr. Prakken opined that during this
period, plaintiff required between two and four hours of
attendant care per day. Based on this opinion, the Full
Commission found that from 1 June 2006 to 30 September 2008,
plaintiff required two hours of attendant care per day, and this
care was provided by plaintiff’s wife and other family members.
Specifically, the Full Commission found that “[plaintiff’s
family members] performed tasks plaintiff used to perform
himself such as yard work, cleaning the gutters, washing the
house and cars, vacuuming and taking out the trash. Plaintiff
was also unable to help his wife with the laundry and cooking,
tasks for which they had previously shared responsibility.”
Plaintiff underwent an additional multi-level cervical
fusion surgery on 7 May 2009. From October 2008 through the
date of this procedure, plaintiff was forced to use a cane to
walk due to difficulty with his gait; he also suffered from
urinary urgency. Based on Dr. Prakken’s opinion, the Full
Commission found that from 1 October 2008 through 6 May 2009,
plaintiff required three hours of attendant care per day, which
was provided by plaintiff’s wife and other family members. -5- Plaintiff remained in the hospital until 13 June 2009 after
undergoing the additional surgery on 7 May.
Following release from the hospital, plaintiff was no
longer able to perform any activities around the house,
including bathing, feeding, dressing, or toileting on his own.
For the time period beginning with plaintiff’s release from the
hospital and going through 31 October 2009, Dr. Margraf
prescribed two hours of attendant care per day, five days per
week, which defendants provided. In early 2010, plaintiff
underwent additional surgery to remove a vocal cord growth
related to the May 2009 surgery. On 30 April 2010, Dr. Prakken
prescribed two weeks of attendant care, which defendants
provided. The Full Commission found that during the times when
attendant caretakers provided by defendants were not at
plaintiff’s home, plaintiff’s wife would constantly monitor him
to manage his medications and ensure that he did not fall.
Based on Dr. Prakken’s opinion, the Full Commission found that
from 13 June 2009 until the date of the hearing before the
Commission on 1 May 2012 and continuing, plaintiff required four
hours of direct attendant care and eight hours of passive
attendant care per day, which has been and continues to be
provided by plaintiff’s wife and other family members. -6- Thus, the Full Commission found that plaintiff’s wife and
family members are entitled to reimbursement for the attendant
care that they have provided since November 2005. In total,
these amounted to 2,726 hours of compensable attendant care from
30 November 2005 through 6 May 2009. Additionally, the Full
Commission ordered that beginning 13 June 2009 and continuing
until further order of the Commission, defendants are to pay for
twelve hours of attendant care per day, seven days a week. The
Full Commission concluded that although plaintiff’s family
members are entitled to reimbursement for these hours, the
record did not contain sufficient evidence of the market hourly
rate for an unskilled attendant care provider. Thus, it noted
that the parties must stipulate to the appropriate hourly rate
or request Commission approval to take depositions or submit
other evidence to resolve the rate amount. Defendants filed
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA12-1238 NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
JOSEPH E. BURROUGHS, Employee, Plaintiff,
v. North Carolina Industrial Commission I.C. No. 584372 LASER RECHARGE OF CAROLINAS, INC., Employer, and NORGUARD INSURANCE COMPANY, Carrier, Defendants.
Appeal by defendants from opinion and award entered 27 June
2012 by the Full Commission of the North Carolina Industrial
Commission. Heard in the Court of Appeals 8 April 2014.
Lennon, Camak & Bertics, PLLC, by Michael W. Bertics and S. Neal Camak, for plaintiff-appellee.
Teague Campbell Dennis & Gorham, L.L.P., by John A. Tomei, for defendants-appellants.
HUNTER, Robert C., Judge.
Laser Recharge of Carolinas, Inc., (“Laser Recharge”)
together with its insurance carrier Norguard Insurance Company
(collectively “defendants”), appeal from an opinion and award
entered by the Full Commission of the North Carolina Industrial -2- Commission ordering defendants to pay compensation for 2,726
hours of attendant care services performed by plaintiff Joseph
E. Burroughs’s family members. On appeal, defendants argue
that: (1) this case must be remanded so that the Full Commission
may enter findings as to the timeliness of plaintiff’s request
for attendant care compensation; (2) certain aspects of
plaintiff’s need for attendant care are not compensable as a
matter of law; and (3) the Full Commission erred by awarding
reimbursement to plaintiff directly rather than to the specific
family members who performed the attendant care services.
After careful review, we reverse and remand to the Full
Commission.
Background
Defendants do not contest any of the Full Commission’s
findings of fact. Thus, the Full Commission’s findings are
presumed to be supported by competent evidence and are binding
on appeal. See Chaisson v. Simpson, 195 N.C. App. 463, 470, 673
S.E.2d 149, 156 (2009). The relevant findings of fact entered
by the Full Commission are as follows: Plaintiff began working
for Laser Recharge in 1997 as a delivery driver. On 30 November
2005, plaintiff suffered a compensable work-related injury to
his neck which required a multi-level cervical fusion surgery. -3- Plaintiff was found to be permanently and totally disabled as a
result of this injury.
Due to pain in his neck following the initial surgery in
November 2005, plaintiff had trouble performing many of the
household chores he was accustomed to doing, such as moving
trash to the curb and driving himself to medical appointments.
Defendants provided a transportation service to drive plaintiff
to medical appointments, but the drivers were unreliable, and
defendants discontinued this service at plaintiff’s wife’s
request. Based on the opinion of Dr. Steven Prakken (“Dr.
Prakken”), plaintiff’s pain management physician, the Full
Commission found as fact that plaintiff required two hours of
attendant care per day from 30 November 2005 to 31 May 2006 and
that this attendant care was provided by plaintiff’s wife and
other family members.
Beginning in the summer of 2006, plaintiff’s health began
to deteriorate. He no longer felt he could perform routine
household tasks, like yard work. He experienced increased pain
emanating from his neck into his arms. In September 2007,
plaintiff’s neurosurgeon, Dr. Russell Margraf (“Dr. Margraf”),
recommended additional neck surgery if plaintiff’s condition did
not improve. Over the next year, plaintiff continued to -4- experience pain in his neck, tingling in both hands, and
weakness in his right hand. Dr. Prakken opined that during this
period, plaintiff required between two and four hours of
attendant care per day. Based on this opinion, the Full
Commission found that from 1 June 2006 to 30 September 2008,
plaintiff required two hours of attendant care per day, and this
care was provided by plaintiff’s wife and other family members.
Specifically, the Full Commission found that “[plaintiff’s
family members] performed tasks plaintiff used to perform
himself such as yard work, cleaning the gutters, washing the
house and cars, vacuuming and taking out the trash. Plaintiff
was also unable to help his wife with the laundry and cooking,
tasks for which they had previously shared responsibility.”
Plaintiff underwent an additional multi-level cervical
fusion surgery on 7 May 2009. From October 2008 through the
date of this procedure, plaintiff was forced to use a cane to
walk due to difficulty with his gait; he also suffered from
urinary urgency. Based on Dr. Prakken’s opinion, the Full
Commission found that from 1 October 2008 through 6 May 2009,
plaintiff required three hours of attendant care per day, which
was provided by plaintiff’s wife and other family members. -5- Plaintiff remained in the hospital until 13 June 2009 after
undergoing the additional surgery on 7 May.
Following release from the hospital, plaintiff was no
longer able to perform any activities around the house,
including bathing, feeding, dressing, or toileting on his own.
For the time period beginning with plaintiff’s release from the
hospital and going through 31 October 2009, Dr. Margraf
prescribed two hours of attendant care per day, five days per
week, which defendants provided. In early 2010, plaintiff
underwent additional surgery to remove a vocal cord growth
related to the May 2009 surgery. On 30 April 2010, Dr. Prakken
prescribed two weeks of attendant care, which defendants
provided. The Full Commission found that during the times when
attendant caretakers provided by defendants were not at
plaintiff’s home, plaintiff’s wife would constantly monitor him
to manage his medications and ensure that he did not fall.
Based on Dr. Prakken’s opinion, the Full Commission found that
from 13 June 2009 until the date of the hearing before the
Commission on 1 May 2012 and continuing, plaintiff required four
hours of direct attendant care and eight hours of passive
attendant care per day, which has been and continues to be
provided by plaintiff’s wife and other family members. -6- Thus, the Full Commission found that plaintiff’s wife and
family members are entitled to reimbursement for the attendant
care that they have provided since November 2005. In total,
these amounted to 2,726 hours of compensable attendant care from
30 November 2005 through 6 May 2009. Additionally, the Full
Commission ordered that beginning 13 June 2009 and continuing
until further order of the Commission, defendants are to pay for
twelve hours of attendant care per day, seven days a week. The
Full Commission concluded that although plaintiff’s family
members are entitled to reimbursement for these hours, the
record did not contain sufficient evidence of the market hourly
rate for an unskilled attendant care provider. Thus, it noted
that the parties must stipulate to the appropriate hourly rate
or request Commission approval to take depositions or submit
other evidence to resolve the rate amount. Defendants filed
timely notice of appeal from the Full Commission’s opinion and
award.
By order of this Court entered 30 October 2012, defendants’
appeal was held in abeyance pending resolution of two North
Carolina Supreme Court cases – Chandler ex re. Harris v.
Atlantic Scrap & Processing, __ N.C. __, 749 S.E.2d 278 (2013),
and Mehaffey v. Burger King, __ N.C. __, 749 S.E.2d 252 (2013). -7- Both cases were filed by the Supreme Court in November 2013, and
the parties to this suit filed briefs within thirty days
thereafter.
Discussion
I. Timeliness of Plaintiff’s Request
Defendants first argue that, pursuant to the holding in
Mehaffey, the Full Commission’s opinion and award must be
remanded for entry of factual findings and legal conclusions
related to the timeliness of plaintiff’s request for
reimbursement. We agree.
Plaintiff argues that defendants failed to preserve this
issue on appeal because they did not properly present this
contention in the first instance before the Full Commission.
See Floyd v. Executive Personnel Grp., 194 N.C. App. 322, 329,
669 S.E.2d 822, 828 (2008) (holding that a party may not raise
an argument for the first time on appeal that was not brought
first before the Industrial Commission). However, we believe
that defendants presented this issue before the Commission and
therefore preserved it for appellate review. On page six of
defendants’ brief to the Full Commission, they argued that:
To permit an employee to wait years after a family member begins providing post-accident care before bringing the issue of reimbursement to the attention of the -8- employer, carrier, and Commission would frustrate the second of the two goals reflected in § 97-25.4(a): the containment of medical costs.
Although defendants did not explicitly request that the Full
Commission enter findings and conclusions as to the
reasonableness of the length of time it took plaintiff to
request reimbursement for these attendant care services, they
did argue that the length of time was an additional reason to
deny plaintiff’s request. Thus, we conclude defendants raised
and argued this point before the Full Commission and the issue
is properly preserved for appellate review. See Floyd, 194 N.C.
App. at 329, 669 S.E.2d at 828.
Turning to the merits of defendants’ argument, we agree
that under Mehaffey, this matter must be remanded. The Mehaffey
Court noted that “to receive compensation for medical services,
an injured worker is required to obtain approval from the
Commission within a reasonable time after he selects a medical
provider.” Mehaffey, __ N.C. at __, 749 S.E.2d at 257.
Therefore, “[i]f [a] plaintiff did not seek approval within a
reasonable time, he is not entitled to reimbursement.” Id.
Because the defendants in Mehaffey challenged the reasonableness
of the timing of the plaintiff’s request and the Full Commission
did not resolve that issue in its findings of fact or -9- conclusions of law, the Supreme Court remanded for entry of such
findings and conclusions. Id.
Here, like in Mehaffey, defendants challenged the
reasonableness of the timing of plaintiff’s request for
reimbursement for attendant care services, and the Full
Commission failed to enter findings of fact or conclusions of
law resolving that issue. Accordingly, pursuant to the Mehaffey
holding, we remand for entry of further findings of fact and
conclusions of law as to the timeliness of plaintiff’s request
for reimbursement.1
II. Compensability of Attendant Care Services
Defendants next argue that some of the services for which
plaintiff was reimbursed are not compensable as a matter of law.
Because the Full Commission entered findings of fact that would
1 Plaintiff also argues that defendants are barred from challenging the timeliness of plaintiff’s request because defendants waived their right to direct medical care by denying plaintiff’s need for care in the past. We disagree for two reasons: (1) nothing in Mehaffey indicates that defendants’ previous denial of care affects the Full Commission’s duty to enter findings of fact and conclusions of law as to the timeliness of a request where defendants have properly raised that issue before the Commission; and (2) defendants did not completely deny plaintiff’s attendant care. To the contrary, defendants provided all attendant care that was prescribed in 2009 and 2010. In their brief, defendants concede that there is competent evidence to support an award of “some ongoing attendant care services for [p]laintiff.” Thus, plaintiff’s argument regarding waiver is without merit. -10- support an erroneous conclusion of law, but did not specify
whether those facts were taken into account in its award, we
remand for clarification on this issue.
N.C. Gen. Stat. § 97-25 (2013) states that “[m]edical
compensation shall be provided by the employer.” Medical
compensation is defined in relevant part as:
medical, surgical, hospital, nursing, and rehabilitative services, including, but not limited to, attendant care services prescribed by a health care provider authorized by the employer or subsequently by the Commission, vocational rehabilitation, and medicines, sick travel, and other treatment, including medical and surgical supplies, as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will tend to lessen the period of disability[.]
N.C. Gen. Stat. § 97-2(19) (2013). This Court has previously
held that “ordinary expense[s] of life” are not included in the
definition of “medical compensation” and therefore are not
required to be provided or reimbursed by the employer. See
Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488,
494, 665 S.E.2d 781, 786 (2008).
The holding in Scarboro is instructive here. In that case,
the Full Commission found as fact that because of a work-related
back injury, the plaintiff was unable to perform yard work that -11- was required by his homeowners’ association. Scarboro, 192 N.C.
App. at 494, 665 S.E.2d at 786. The plaintiff sought to have
his employer reimburse him for the costs of hiring an outside
company to perform the yard work on the theory that such
services were an “extraordinary and unusual expense included in
the ‘other treatment’ language of N.C. Gen. Stat. § 97-25.” Id.
at 492, 665 S.E.2d at 784. However, the Court held that
“providing plaintiff with the resources to comply with this
restrictive covenant [to perform certain yard work] does not
rise to the level of ‘other treatment.’ [The Full Commission’s]
factual findings support the conclusion that the lawn care
services are an ordinary expense of life, which is not included
in medical compensation, pursuant to N.C. Gen. Stat. § 97-2(19)
and N.C. Gen. Stat. § 97-25.” Id.
Here, the Full Commission found as fact that:
8. During the summer of 2006, plaintiff was still unable to perform some of the activities of daily living that he had been able to perform prior to his injury. Plaintiff could no longer care for his yard, and his wife had to take the trash out because he was unable to do so.
. . .
11. Plaintiff’s condition continued to decline over the next year. During his first appointment with Dr. Prakken on September 29, 2008, plaintiff reported pain -12- in his neck and back, tingling in both hands, and weakness in his right hand which limited his ability to work around his house. As a result of this, family members including plaintiff’s daughter, brother-in- law and son-in-law performed tasks plaintiff used to perform himself such as yard work, cleaning the gutters, washing the house and cars, vacuuming and taking out the trash. Plaintiff was also unable to help his wife with the laundry and cooking, tasks for which they had previously shared responsibility.
It is clear that some of the activities identified by the Full
Commission as being performed by plaintiff’s family members on
his behalf, specifically yard work and other household chores,
fall under the definition of “ordinary expenses of life” and are
therefore not compensable. See Scarboro, 192 N.C. App at 492,
665 S.E.2d at 784. However, it is unclear to what extent the
Full Commission relied on these factual findings in its opinion
and award. Although the Full Commission’s conclusion that
plaintiff is entitled to reimbursement for attendant care is
supported by competent evidence, we have no way of knowing how
many of these hours were comprised of non-compensable “ordinary
expenses of life” activities.
Accordingly, pursuant to Scarboro, we remand to the Full
Commission for clarification in its findings of fact and
conclusions of law as to this distinction, and we instruct the -13- Full Commission to award reimbursement only for those
“extraordinary and unusual expenses” that are compensable under
section 97-25.
III. Payment Recipients
Defendants’ final argument on appeal is that the Full
Commission erred by awarding reimbursement directly to plaintiff
rather than to the family members who actually performed the
attendant care services. However, defendants cite no authority
for the proposition that this failure to specify recipients and
connect their award to the attendant care provided amounts to
reversible error. Thus, this argument is deemed abandoned. See
Hackos v. Goodman, Allen & Filetti, PLLC, __ N.C. App. __, __,
745 S.E.2d 336, 341 (2013).
Furthermore, we disagree with defendants’ contention that
plaintiff’s wife should not be awarded compensation solely
because she herself is also disabled. Defendants assert that
plaintiff’s wife “has not had to alter her routine at all in
order to provide [p]laintiff with this ‘passive care.’ Due to
her own disability, she has not worked since before [p]laintiff
was injured and would be at home with him regardless of his need
for someone to be within shouting distance.” We expressly
reject this line of argument. Neither defendants nor this Court -14- have any basis to assume how plaintiff’s wife would have spent
her time had plaintiff not been seriously injured. Defendants’
argument is overruled.
Conclusion
For the reasons stated above, we reverse the opinion and
award and remand to the Full Commission for entry of findings of
fact and conclusions of law: (1) addressing the reasonableness
of the amount of time it took plaintiff to request reimbursement
for the attendant care services plaintiff’s family provided; and
(2) resolving what portion of the attendant care to which
plaintiff is entitled was comprised of valid medical
compensation under the meaning of section 97-25.
REVERSED AND REMANDED.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).