Court: Court of Appeals of North Carolina; November 17, 2009; North Carolina; State Appellate Court
Sheryl Boylan, the plaintiff, sustained a compensable injury on July 21, 2003, while employed by Verizon Wireless when she tripped over a box, resulting in a back injury. Verizon Wireless accepted responsibility for the injury, and their insurer, Sedgwick CMS, began compensating Boylan at $370.98 weekly. Despite undergoing a year of treatment, including MRIs and surgery for a degenerative disk, Boylan continued to experience severe pain and functional limitations, necessitating assistance with daily activities.
In August 2004, Boylan's daughter, Misty, moved in to provide significant care, averaging 56 hours of assistance weekly until her relocation in October 2007. Following this, Boylan moved closer to her sister, Regina Locklear, who, along with her husband, provided an additional 32 hours of care weekly. A rehabilitative nurse confirmed Boylan's need for daily assistance.
In 2006, a physician ordered a home assessment to identify necessary modifications for accessibility. The defendants challenged their obligation under the Workers' Compensation Act to cover the costs of these modifications, leading them to file a request for a hearing. The North Carolina Court of Appeals affirmed in part and dismissed in part the Industrial Commission's award to Boylan.
A hearing was conducted on January 16, 2008, before Deputy Commissioner Bradley W. Houser, where five issues were identified: 1) whether the plaintiff was permanently and totally disabled; 2) entitlement to attendant care services; 3) compensation for past family-provided attendant care; 4) entitlement to Life Care Planning; and 5) implementation of a home modification plan. On April 28, 2008, the Deputy Commissioner issued an opinion and award stating that the defendants must continue paying total disability compensation of $370.98 weekly, determined the plaintiff was not permanently and totally disabled, acknowledged medical benefits from family-provided attendant care, and mandated payments to family members Misty Boylan, Regina Locklear, and Nathan Locklear for their services at $8.00 per hour. Additionally, the defendants were ordered to cover all related medical expenses tied to the plaintiff's compensable injury, including specific treatments upon Industrial Commission approval, and a 25% attorney fee was to be deducted from the awarded amounts. Defendants appealed, while the plaintiff cross-appealed.
On December 9, 2008, the Full Commission upheld the Deputy Commissioner's award with modifications, maintaining the total disability compensation and payment rates for family caregivers, and confirming coverage for medical expenses. The Commission also awarded the plaintiff a 25% attorney fee based on temporary total disability compensation and mandated that the defendants cover all costs. The defendants' appeal raised issues regarding the retroactive payment for attendant care services, the award of such services, and the assessment of required hours. In contrast, the plaintiff's cross-appeal questioned the disturbance of attorney's fees, the finding of no permanent total disability, and the failure to conclude the need for life care planning. Regarding the defendants' argument against retroactive payments, it was noted that the plaintiff's lack of prior approval did not preclude her entitlement to attendant care benefits, as the appeal's review standard focuses on the presence of competent evidence and the justification of legal conclusions.
Under the Workers' Compensation Act, specifically section 97-90(a) of the North Carolina General Statutes, attorney fees and healthcare provider charges for medical compensation require Commission approval, but physicians and medical facilities cannot collect fees from employers or insurers until they submit required reports. In the case of Ruiz v. Belk Masonry Co., the plaintiff, injured while working, received benefits for attendant care provided by his brother after hospitalization. Defendants challenged the award, arguing that prior approval for care was necessary. The court clarified that pre-approval was only mandated for licensed healthcare providers, not for family members offering care, thus upholding the Commission's decision.
The defendants also contended that the Commission improperly awarded benefits for attendant care due to lack of competent medical evidence demonstrating the necessity of such services. However, the court found substantial evidence supporting the Commission's findings. The plaintiff's brother, despite lacking formal medical training, testified to his significant caregiving role. Additionally, a registered nurse with relevant qualifications prepared a life care plan indicating the need for ongoing attendant care. The court concluded that this evidence justified the Commission's determination of the plaintiff's need for attendant care, affirming the award and overruling the defendants' objections.
The Commission found that the Plaintiff continues to suffer significant pain and limitations in mobility due to a compensable injury, requiring ongoing assistance for daily activities. Plaintiff experiences difficulty in personal care, meal preparation, and household tasks, leading to reliance on family members, specifically her daughter, Misty Boylan, and Ms. Regina Locklear, for care. These family members assist with cooking, cleaning, hygiene, and transportation. The rehabilitation nurse, Ms. Cheryl Yates, confirmed that Plaintiff requires assistance in daily living activities due to her physical condition.
The Commission determined there was credible evidence supporting that Plaintiff benefitted from the care provided by her family, and it affirmed the findings regarding the amount of care needed—56 hours per week from Ms. Boylan and 32 hours per week from Ms. Locklear and Mr. Locklear. Furthermore, the Commission noted a recommendation from Dr. Bartko for an occupational therapy evaluation regarding Plaintiff's assistance needs, which had yet to be conducted. The findings were deemed sufficient to establish past and future care requirements, leading to the overruling of the defendants' objections. In a cross-appeal, the Plaintiff's challenge to the reduction of attorney's fees was dismissed.
Section 97-90(c) outlines the appeal process for attorney fee awards under the Workers' Compensation Act, distinguishing between cases with a fee agreement and those without. If an attorney has a fee agreement deemed unreasonable by the Commission, they may appeal to the senior resident superior court judge in the relevant county, who will assess the agreement's reasonableness or establish a new fee. In instances without a fee agreement, the attorney can also appeal to the same court regarding the fee awarded by the Commission. The excerpt references *Davis v. Trus Joist MacMillan*, where the court found it lacked jurisdiction to hear an appeal regarding attorney fees because the appeal process must follow Section 97-90(c). Consequently, similar to *Davis*, the current appeal regarding the attorney fee award must be dismissed for lack of jurisdiction.
Additionally, the plaintiff contests the Commission's decision not to declare them permanently and totally disabled. The Industrial Commission is the sole judge of witness credibility and weighs their testimony, and its findings, supported by competent evidence, are conclusive on appeal. Under the Workers' Compensation Act, an employee is considered disabled if an injury incapacitates them from earning wages comparable to those received at the time of injury. The burden of proof for establishing disability lies with the claimant, who may do so through various means, including medical evidence or proof of unsuccessful job searches. The deputy commissioner and Full Commission reviewed expert testimony from Dr. Otis Delano Curling, Jr., who indicated that the plaintiff was not at maximum medical improvement during his examinations.
Plaintiff, aged fifty, with a high school education and prior experience as a receptionist at Verizon Wireless, testified regarding her work capability. The Full Commission determined that, based on the totality of credible evidence, Plaintiff is not permanently and totally disabled, affirming the finding of fact and conclusion of law. The court found competent evidence supporting this conclusion and overruled Plaintiff's assignment of error.
Additionally, Plaintiff contended that the Commission abused its discretion by not recognizing her need for life care planning. The North Carolina General Statutes allow the Industrial Commission to order necessary medical treatments when there is a dispute between the employer and employee. The Commission holds exclusive jurisdiction over treatment appropriateness and is not obligated to provide exhaustive findings for each witness statement.
Dr. Bartko testified that an evaluation by a life care planner would be appropriate to assess Plaintiff's future assistance needs and indicated willingness to recommend such an evaluation. However, the Commission concluded there was insufficient evidence to mandate the development of a life care plan or to require Defendants to provide one for Plaintiff. The Commission's findings regarding life care planning were deemed adequate, leading to the overruling of Defendants' assignments of error. The decision was affirmed in part and dismissed in part by Judges WYNN and McGEE.
