Chandler v. Atlantic Scrap & Processing

720 S.E.2d 745, 217 N.C. App. 417, 2011 N.C. App. LEXIS 2601
CourtCourt of Appeals of North Carolina
DecidedDecember 20, 2011
DocketNo. COA11-618
StatusPublished
Cited by8 cases

This text of 720 S.E.2d 745 (Chandler v. Atlantic Scrap & Processing) 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
Chandler v. Atlantic Scrap & Processing, 720 S.E.2d 745, 217 N.C. App. 417, 2011 N.C. App. LEXIS 2601 (N.C. Ct. App. 2011).

Opinion

McCullough, Judge.

Plaintiff Connie Chandler (“plaintiff’) appeals from an opinion and award of the North Carolina Industrial Commission (the “Commission”) declining to award interest to plaintiff on an award of unpaid attendant care services. Defendants Atlantic Scrap & Processing (“Atlantic Scrap”) and Liberty Mutual Insurance Company (“Liberty Mutual,” collectively, “defendants”) cross-appeal the Commission’s decision awarding plaintiff compensation for attendant care services and attorneys’ fees pursuant to N.C. Gen. Stat. § 97-88.1 (2009). We reverse the Commission’s order declining to award interest to plaintiff, and we otherwise affirm the Commission’s order awarding plaintiff compensation for attendant care services and attorneys’ fees. We also grant plaintiff’s motion for attorneys’ fees incurred during the pendency of this appeal pursuant to N.C. Gen. Stat. § 97-88 (2009).

I. Background

Plaintiff began working for Atlantic Scrap, a metal recycling facility, in 1994. Plaintiff was hired to clean Atlantic Scrap’s three buildings. On 11 August 2003, plaintiff began her work duties with Atlantic Scrap at 7:00 a.m. As plaintiff was walking down a flight of concrete steps, she accidentally fell backwards, striking the posterior portion of her head and neck on the steps. When EMS personnel arrived at the scene, plaintiff was confused and agitated and had a [419]*419bruise with swelling on the back of her head. Plaintiff’s primary complaints at that time were headache and neck pain. Upon arriving at the hospital, plaintiff related to the treating physician that she went up a flight of stairs to begin her work when she slipped and fell, hitting her head on the stairs. Plaintiff also mistakenly stated that the month was January and that it was cold outside, despite that the month was August, and plaintiff was unaware of the year. Nonetheless, all radiological tests were negative. Plaintiff was determined to have sustained a concussion or closed head injury, a neck injury, and a right partial rotator cuff tear, all due to her fall.

After her fall, during the period from 13 August 2003 through November of that year, plaintiff treated with her primary care physician, Dr. Norman Templon (“Dr. Templon”). Plaintiff’s primary symptoms from her fall continued to be global headaches, right shoulder pain, neck pain, dizziness, and insomnia. Plaintiff also developed depression dire to her injuries.

In October 2003, plaintiff’s husband, Lester Chandler (“Mr. Chandler”), advised Dr. Templon that plaintiff had been having significant memory problems, sensitivity to light, and some nausea and vomiting almost every day since her fall. On 31 October 2003, a brain MRI revealed that plaintiff had evidence of small vessel ischemic changes in her white matter. By November 2003, plaintiff had constant occipital headaches and frequent crying spells.

In November 2003, Dr. Templon diagnosed plaintiff as suffering from cognitive impairments secondary to post-concussive syndrome. Dr. Templon referred plaintiff to neuropsychologist Cecile Naylor (“Dr. Naylor”) for evaluation of plaintiff’s cognitive functioning and memory. On 3 December 2003, testing by Dr. Naylor revealed that plaintiff had selective deficit in verbal memory, impaired mental flexibility, depression, and a low energy level.

On 23 December 2003, Dr. Templon recommended that plaintiff also see a neurologist. Defendants directed plaintiff to see neurologist Carlo P. Yuson (“Dr. Yuson”). Plaintiff presented to Dr. Yuson on 14 January 2004, complaining primarily of frequent headaches and memory problems since her fall. Dr. Yuson diagnosed plaintiff as suffering from post-concussive syndrome from her fall, along with depression secondary to her fall. Plaintiff continued to see Dr. Yuson throughout March, April, and May 2004, presenting the following continuing symptoms: severe headaches, memory problems, dizziness, crying spells, insomnia, cognitive problems, and depression. Dr. Yuson [420]*420recommended that plaintiff be re-evaluated concerning her cognitive functioning and memory problems.

On 3 May 2004, Liberty Mutual assigned Nurse Bonnie Wilson (“Nurse Wilson”) to provide medical case management services for plaintiff’s claim. Nurse Wilson arranged for plaintiff’s cognitive functioning and memory to be re-evaluated by Dr. Naylor. Plaintiff presented to Dr. Naylor for testing on 28 June 2004, tearful and clinging to Mr. Chandler. Testing revealed the following: (1) plaintiff’s intellectual functioning had fallen from the borderline to impaired range; (2) plaintiff’s memory functioning revealed a sharp decline into the impaired range in all areas; (3) plaintiff had a significant compromise in her conversational speech, i. e., plaintiff only spoke when spoken to, her responses were often short and often fragmented and confused, and plaintiff had difficulty responding to questions. Plaintiff also exhibited the following symptoms: (1) inability to answer questions; (2) fearful and reliant on Mr. Chandler; (3) hears people in the home without any basis; (4) is afraid to go anywhere alone, even in her own home; (5) is easily upset; (6) has significant confusion, as her speech makes no sense; (7) has poor concentration and memory; (8) her moods change quickly; (9) is incapable of performing even simple tasks of daily living; (10) is unable to cook anything; (11) takes naps during the day due to frequent insomnia at night; (12) has decreased appetite and poor energy; (13) cries easily; and (14) feels worthless. All of these test results and symptoms indicated that as of 28 June 2004, plaintiff suffered from severe and global cognitive deficits in higher cortical functioning, all as a result of her 11 August 2003 fall at work.

Beginning on or before 28 June 2004, plaintiff has been incapable of being alone and has been unable to perform most activities of daily living without assistance from Mr. Chandler. Plaintiff has required constant supervision and attendant care services on a 24-hours-a-day/7-days-a-week basis, including at night, due to her severe cognitive impairments, insomnia, paranoia, and fear of being alone. Mr. Chandler has provided the required constant attendant care services to plaintiff for the period beginning at least 28 June 2004 and continuously thereafter, without any compensation for his services.

On 20 July 2004, Dr. Naylor reported plaintiff’s severe cognitive and memory impairments to Nurse Wilson, discussing Dr. Naylor’s written evaluation report and conclusions with Nurse Wilson. Dr. Naylor informed Nurse Wilson that plaintiff’s cognitive and mental condition had greatly deteriorated since prior testing in early Decern[421]*421ber 2003 and that plaintiff was no longer capable of caring for herself and needed constant supervision, which out of necessity was being provided by Mr. Chandler. On 23 August 2004, plaintiff was determined to have reached maximum medical improvement in relation to her traumatic brain injury resulting from her fall. On 21 September 2004, defendants filed a Form 60 Employer’s Admission of Employee’s Right to Compensation for a “concussion to the back of the head,” reporting payment of temporary total disability compensation at $239.37 per week from the date of 11 August 2003.

On 27 October 2004, plaintiff presented to Dr. Yuson, accompanied by Nurse Wilson. Dr. Yuson notified Nurse Wilson that, in his opinion, plaintiff would never get any better mentally than she was as of 23 August 2004, when plaintiff was determined to have reached maximum medical improvement. Dr.

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Bluebook (online)
720 S.E.2d 745, 217 N.C. App. 417, 2011 N.C. App. LEXIS 2601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chandler-v-atlantic-scrap-processing-ncctapp-2011.