The North Carolina Court of Appeals heard two workers’ compensation cases on appeal and decided them earlier this month.

The first, Mehaffey v. Burger King involved a manager at Burger King who suffered a compensable knee injury while at work.  In the North Carolina Industrial Commission’s Opinion and Award, the Plaintiff was awarded retroactive attendant care fees for his wife, home modifications for a power wheel chair, a hospital bed, and transportation to doctors appointments.   Defendants argued that the Commission erred in awarding retroactive payments for attendant care because they were not pre-approved.  Shockingly, the Court agreed, even though the it recently held in the Boylan and Ruiz cases that pre-approval was not necessary for attendant care services.  The Court relied on the out-dated Hatchett case from 1954, which has been superceded by later Supreme Court decisions and legislative changes.  Perhaps the Court will agree to rehear the case, which appears to be a clear mistake.

Next, in Keeton v. Circle K, the Court affirmed the Industrial Commission’s Opinion and Award, which granted the defendants’ application to suspend benefits.  Keeton appealed the Commission’s decision, contending that she should be entitled to continuing benefits because she made a reasonable effort to return to work and there was no actual refusal to work.  The Court rejected these contentions, concluding there was sufficient evidence to show that the available manager position with Circle K fit within her physical restrictions, was “suitable employment,” and the Plaintiff made no effort to return to work at Circle K.  Thus, deeming the Plaintiff’s actions to be a voluntary refusal to accept suitable employment, the Court affirmed the denial of benefits under N.C. Gen. Stat. 97-32.

Categories: Judicial Decisions Tags: Appeals, Attendant Care, Case Commentary, Industrial Commission, NC Court of Appeals, Pre-Approval, Seagraves, Suitable Employment, Workers' Compensation

The North Carolina Court of Appeals recently issued several workers’ compensation opinions, though they were all unpublished and did not break any new ground.  In Pope v. Johns Manville, the Court upheld the Industrial Commission’s decision that the plaintiff had developed asbestosis from asbestos exposure during the 50′s and 60′s, that the testimony of plaintiff’s rebuttal expert was properly considered, and that the plaintiff was disabled due to his asbestosis under N.C.G.S. 97-54.  In Bricker v. Rhoney Furniture House, the Court upheld the Commission’s conclusion that the plaintiff had shown that she had a compensable change of condition under N.C.G.S. 97-47, and that she was now totally disabled instead of partially disabled due to her back pain and depression.

In Sperry v. Koury Corp, the Court upheld the Commission’s conclusion that the plaintiff had failed to show that she was totally disabled.  Finally, in Arce v. Mt. Wood Forestry, the Court concluded that the plaintiff — a paraplegic due to a car accident — was entitled to retroactive and prospective payment for attendant care provided by his family, handicapped accessible housing if his landlord will not agree to modification of his current housing, and other elements of a life care plan prepared by a certified life care planner.

Categories: Judicial Decisions Tags: Asbestosis, Attendant Care, Case Commentary, Change of Condition, Industrial Commission, Life Care Plan, NC Court of Appeals, Workers' Compensation

When workers are severely injured, they may required attendant care, i.e. assistance in the home such as help with household tasks and personal nursing. Workers’ compensation can cover the costs of this care, if required, even if it is provided by a family member. In recent years, the Industrial Commission, pursuant to its Fee Schedule, has sometimes said that attendant care provided by family members is not compensable, though, if approval is not obtained beforehand. The North Carolina Court of Appeals hopefully put a stop to such rulings this week.

In Boylan v. Verizon Wireless, the plaintiff had fallen and injured her back at work.  After back surgery, she continued to have difficulty maneuvering around her home and suffered frequent falls.  She was unable to get into or out of a bathtub by herself, dress herself, prepare her own meals, clean, do yard work, run errands or drive herself to medical appointments.  Her daughter moved in and provided live-in care and, later, plaintiff’s sister also provided attendant care.  After a hearing in 2008, the Commission ruled that plaintiff was disabled, and that defendants had to pay for past and future attendant care.

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Categories: Judicial Decisions Tags: Attendant Care, Case Commentary, Industrial Commission, NC Court of Appeals, Workers' Compensation