Tinajero v. Balfour Beatty Infrastructure, Inc. , 233 N.C. App. 748 ( 2014 )

NO. COA13-9
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
SANTOS TINAJERO,
Employee,
Plaintiff,
v. North Carolina
Industrial Commission
BALFOUR BEATTY INFRASTRUCTURE, I.C. No. 091464
INC.,
Employer,
ZURICH AMERICAN INSURANCE COMPANY,
Carrier,
Defendants.
Appeal by plaintiff and defendants from opinions and awards
entered by the North Carolina Industrial Commission on 13
September 2010 and 16 October 2012. Heard in the Court of
Appeals 9 May 2013.
R. James Lore, Attorney at Law, by R. James Lore, for
plaintiff.
Stiles, Byrum & Horne, L.L.P., by Henry C. Byrum, Jr., for
defendants.
GEER, Judge.
Plaintiff Santos Tinajero and defendants Balfour Beatty
Infrastructure, Inc. and Zurich American Insurance Company each
appeal from opinions and awards entered by the North Carolina
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Industrial Commission arising out of Mr. Tinajero's admittedly
compensable injury by accident that resulted in Mr. Tinajero's
being a quadriplegic. The primary issue on appeal is whether
the Commission properly required defendants to pay the rental
cost of reasonable handicapped accessible housing for Mr.
Tinajero.
Applying Derebery v. Pitt Cnty. Fire Marshall, 318 N.C.
192, 347 S.E.2d 814 (1986), and Espinosa v. Tradesource, Inc.,
___ N.C. App. ___, 752 S.E.2d 153 (2013), we hold that the
Commission did not abuse its discretion in making this award
given that (1) Mr. Tinajero had no dwelling of his own that
could be renovated to provide handicapped accessible housing,
(2) defendants had continuously paid the full cost of housing
for Mr. Tinajero since his injury by accident so long as he
resided in a skilled nursing home or long-term care facility,
and (3) the Commission found that living in such facilities was
not in Mr. Tinajero's medical best interest. The Commission was
free to conclude that defendants should not be allowed to
condition their payment of Mr. Tinajero's housing costs on his
agreeing to live in a facility that the Commission had found,
based on competent evidence, was harmful to him physically and
mentally and not in his medical best interests.
Facts
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On 11 August 2008, Mr. Tinajero, an undocumented worker
from Mexico, was employed by Balfour Beatty Infrastructure, Inc.
While Mr. Tinajero was working on a barge, a crane cable broke
and knocked him into the water. Immediately following the
accident, Mr. Tinajero was transported to Pitt County Memorial
Hospital where he was treated surgically for his injuries. Mr.
Tinajero, who was 26 years old at the time of the hearing before
the deputy commissioner, had suffered a C4-5 fracture
dislocation, leaving him an ASIA A-B quadriplegic.
On 15 August 2008, Mr. Tinajero was transferred to Shepherd
Center in Atlanta, Georgia for continuing treatment and
rehabilitation. The Shepherd Center provides rehabilitative
services for patients with significant neurologic injuries and
illnesses, predominately spinal cord and brain injuries. Mr.
Tinajero's condition required attendant care 24 hours per day,
seven days per week.
Mr. Tinajero remained at the Shepherd Center until 5
December 2008. Mr. Tinajero's nurse case manager was unable to
locate an appropriate apartment, but recommended against Mr.
Tinajero's being placed in a nursing home upon his discharge
from Shepherd Center because, in her experience, such a setting
reinforces a "sick" mentality and leads to depression. A
subsequent nurse case manager ultimately found one assisted
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living facility willing to accept someone his age, Briarcliff
Haven. Mr. Tinajero was then placed in the sub acute
rehabilitation unit at Briarcliff Haven beginning on 5 December
2008.
On 27 February 2009, Mr. Tinajero filed an "Emergency
Motion for Medical Treatment" with the Commission. In the
motion, Mr. Tinajero asserted that his placement at Briarcliff
Haven was not a suitable living environment and that any delay
in relocating him would unjustifiably jeopardize his health.
Mr. Tinajero requested that the Commission order defendants to
pay for his placement in a suitable apartment with 24-hour
attendant care.
In response to Mr. Tinajero's motion, the Commission issued
an order on 20 March 2009 in which it referred the case to the
regular docket for an expedited evidentiary hearing. Before the
scheduled hearing date, the parties submitted a "Pre–Trial
Agreement guided by Rule 16 of the North Carolina Rules of Civil
Procedure." In the pre-trial agreement, the parties set forth a
number of issues to be determined at the subsequent hearing.
Included among these issues, Mr. Tinajero requested a
determination whether defendants were obligated to provide
adaptive housing, as well as what type of housing and attendant
care were required. On 10 April 2010, Mr. Tinajero, on his own,
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located an apartment across the street from Shepherd Center and
moved into that apartment.
In the hearing before the deputy commissioner, Mr. Tinajero
submitted a life care plan created by Michael Fryar. After
reviewing Mr. Fryar's credentials, experience, and life care
plan, the deputy commissioner determined that the report
prepared by Mr. Fryar was not an objective and unbiased
assessment of Mr. Tinajero's needs.
The deputy commissioner concluded that Mr. Tinajero was
entitled to lifetime workers' compensation benefits. However,
the deputy commissioner also determined that "[d]efendants
[were] not obligated to purchase, construct or lease adaptive
housing for [Mr. Tinajero] . . . ." According to the deputy
commissioner, defendants were already providing Mr. Tinajero
with suitable housing at Briarcliff Haven, and the medical
evidence presented at the hearing failed to establish that it
was necessary for Mr. Tinajero to leave the Briarcliff Haven
facility.
Mr. Tinajero appealed to the Full Commission. On 13
September 2010, the Commission entered an opinion and award
affirming in part, reversing in part, and modifying in part the
deputy commissioner's opinion and award. With respect to Mr.
Tinajero's housing, the Full Commission determined that Mr.
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Tinajero's placement at Briarcliff Haven was not appropriate in
that it endangered his physical and psychological health.1 The
Full Commission found that the evidence supported Mr. Tinajero's
concerns about infections due to inadequate medical care,
including medical orders not being followed regarding the
timeliness of required intermittent catheterizations. Because
of Briarcliff Haven's inability to assure that they could
properly follow Mr. Tinajero's medical orders and timely perform
the catheterizations, defendants had to contract with outside
nurses to provide necessary nursing care.
The Full Commission further found that the greater weight
of the lay and medical evidence established that living in
Briarcliff Haven was having a negative impact on Mr. Tinajero's
mental health. Based on the medical evidence, the Full
Commission found that "it was in plaintiff's medical best
interest for defendants to provide housing suitable for the
maximum possible level of independence, which means someplace
other than a skilled nursing home or long-term care facility."
1
The Commission found that Mr. Tinajero's nurse case manager
had specifically advised defendants that she did not recommend a
nursing home because it would not optimize his learning and
rehabilitation, would expose him to infections, and leads to
depression. The Commission further noted that the case manager,
when deposed, expressed her expert opinion that the best housing
environment for plaintiff would be an apartment with 24-hour
caregivers.
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The Full Commission found that at the time of his injury by
accident, Mr. Tinajero did not own a dwelling, but rather shared
a rented apartment with two other people in New Bern, North
Carolina. Mr. Tinajero, therefore, owned no property that could
be made handicapped accessible for use by him in his post-injury
condition. The Full Commission noted, however, that a 27 May
2010 progress report by his nurse case manager indicated he was
living in an apartment. The Full Commission observed that
defendants contended "that they provided suitable accommodations
for plaintiff at Briarcliff Haven and that they are not
obligated to pay for the lease of plaintiff's handicapped
accessible apartment," but pointed out "that for many years
defendants have in effect paid for the entire cost of
plaintiff's housing at both Shepherd Center and Briarcliff
Haven." (Emphasis added.)
The Full Commission, therefore, found:
[B]ecause plaintiff has no dwelling that can
be renovated to provide handicapped
accessible housing, defendants are
responsible for providing handicapped
accessible housing for plaintiff. In this
case, the greater weight of the evidence
shows that plaintiff should be placed in
housing that will allow him to have as much
independence as possible. Reasonable
handicapped accessible housing for plaintiff
at this time is an apartment which can
accommodate the necessary 24-hour daily
attendant care for plaintiff. Although
defendants are obligated to pay for the
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lease of such apartment, the selection of an
apartment must be reasonable under the
circumstances. An assessment by a certified
life care planner of plaintiff's current
living quarters is necessary to ascertain
whether the apartment is appropriate
handicapped accessible housing to
accommodate plaintiff's physical needs.
With respect to Mr. Tinajero's request that defendants be
required to provide adaptive transportation, the Full Commission
found that Mr. Tinajero had never possessed a driver's license
or owned a motor vehicle. Since his discharge from Shepherd
Center, defendants had provided transportation through a private
company for medical visits, therapy, recreation at the Shepherd
Center, and social activities. In addition, defendants had
assisted Mr. Tinajero in obtaining a pass for the public
transportation system in Atlanta. The Full Commission found
that two of Mr. Tinajero's doctors considered these
transportation options to be reasonable for Mr. Tinajero. The
Full Commission, therefore, determined that "[d]efendants are
not obligated to purchase a vehicle for plaintiff, but would be
obligated to modify any vehicle plaintiff purchases for his own
transportation to make it accessible to plaintiff's needs. The
Full Commission finds that the transportation services currently
being provided plaintiff by defendants are reasonable."
Based on the findings of fact, the Full Commission
concluded that Mr. Tinajero was totally disabled and entitled to
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total disability compensation as well as medical treatment for
his lifetime. The Full Commission also ordered that Mr.
Tinajero receive attendant care 24 hours per day, seven days per
week to be provided by qualified nursing personnel.
With respect to housing, the Full Commission concluded,
citing Derebery and Timmons v. N.C. Dep't of Transp., 123 N.C.
App. 456, 473 S.E.2d 356 (1996), aff'd per curiam, 346 N.C. 173,
484 S.E.2d 551 (1997) (Timmons I):
In this case, because plaintiff owns no
dwelling that can be renovated to provide
handicapped accessible housing, defendants
are responsible for providing handicapped
accessible housing for plaintiff. While the
case law has held that the provision of
ordinary housing is an expense of daily life
to be paid from an injured worker's
disability compensation, the additional cost
of renting handicapped accessible housing is
not an ordinary expense and should be borne
by defendants, who have up to this point
continuously provided accommodated housing
for plaintiff at Shepherd Center and
Briarcliff Haven since plaintiff's
compensable injury by accident. Therefore,
defendants shall pay the rental cost of
reasonable handicapped accessible housing
for plaintiff, which at this time is an
apartment which can accommodate the
necessary 24-hour daily attendant care for
plaintiff.
(Emphasis added.)
The Full Commission concluded that "[d]efendants are not
required to purchase or lease adaptive transportation for
plaintiff or for his use. McDonald v. Brunswick Elec.
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Membership Corp., 77 N.C. App. 753, 336 S.E.2d 407 (1985)."
Instead, the Full Commission concluded that defendants had
already provided reasonable transportation, although if Mr.
Tinajero purchased a vehicle, defendants were obligated to
modify it to accommodate his disability.
The Full Commission agreed with the deputy commissioner
that the "life care plan prepared by Michael Fryar in this case
was not an unbiased, objective, fair, and balanced assessment."
The Full Commission concluded that defendants were not required
to pay for Mr. Fryar's report because it did not constitute a
valid "'rehabilitative service'" within the meaning of N.C. Gen.
Stat. § 97-2(19). The Full Commission concluded, however, that
Mr. Tinajero was entitled to have defendants pay for the
preparation of a life care plan "by a well-qualified and
certified life care planner with long-standing experience
dealing with catastrophic life care planning. Plaintiff is also
entitled to an assessment by the life care planner of his
current housing arrangements and whether the apartment is
appropriate to accommodate plaintiff's physical needs."
Finally, the Full Commission concluded that "[d]efendants
did not defend this claim in an unreasonable manner or without
reasonable grounds and, therefore, plaintiff is not entitled to
attorney's fees pursuant to N.C. Gen. Stat. §97-88.1; Sparks v.
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Mountain Breeze Restaurant, 55 N.C. App. 663, 286 S.E.2d 575(1982)."
Defendants filed notice of appeal from the opinion and
award of the Full Commission, and Mr. Tinajero cross-appealed.
This Court dismissed the appeal as interlocutory since complete
resolution of the medical issues in the case required, as the
Full Commission had concluded, completion of a satisfactory life
care plan for Mr. Tinajero. See Tinajero v. Balfour Beatty
Infrastructure, Inc., 214 N.C. App. 563, 714 S.E.2d 867, 2011
N.C. App. LEXIS 1832, 2011 WL 3570046 (2011) (unpublished).
On remand, the parties agreed to have Susan Caston assess
Mr. Tinajero's needs although she was not a certified life care
planner. Ms. Caston completed her report on 21 May 2012. Ms.
Caston's rehabilitation plan addressed Mr. Tinajero's housing,
transportation, and vocational/employment status. Mr. Tinajero
filed a motion to depose Ms. Caston on 28 June 2012.
Mr. Tinajero also sought to take the deposition of V.
Robert May, III, Chief Executive Officer of the International
Commission on Health Care Certification, the international
organization that provides accreditation for life care planners.
Mr. Tinajero asserted that after the Full Commission had found
that Mr. Fryar's life care plan did not conform to industry
standards, that life care plan had been submitted to the
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International Commission on Health Care certification for peer
review. According to the motion, the blind evaluation of Mr.
Fryar's plan had resulted in its being used as "'one of our
preferred examples'" in Mr. May's presentations. Mr. Tinajero
sought Mr. May's deposition for the limited purpose of
authenticating the report reviewing Mr. Fryar's life care plan.
The Full Commission denied Mr. Tinajero's motion to depose Ms.
Caston and Mr. May in its opinion and award entered on 16
October 2012.
Pertinent to this appeal, the Full Commission's 16 October
2012 opinion and award found, based on Ms. Caston's evaluation,
that "the geographical location of [Mr. Tinajero's] current
apartment adequately [met] his needs to access the community."
With respect to parking, the Commission found that "[i]nasmuch
as plaintiff cannot legally drive in the United States and does
not now own a handicap-accessible vehicle, it is presently
irrelevant whether his apartment provides a parking space for
him."
As for Mr. Tinajero's housing, the Full Commission found:
Placing plaintiff in a position which
maximizes his independence is a goal
repeatedly expressed throughout the medical
evidence in this case. While plaintiff's
current living situation is preferable to a
skilled nursing home or long-term care
facility, plaintiff cannot reach the maximum
possible level of independence in a housing
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situation in which he cannot maneuver or
fully access the kitchen, bathroom, and
laundry room. Therefore, it is reasonable
and medically necessary that an occupational
therapist with experience in addressing
accessibility issues for the
catastrophically injured be consulted to
identify and make recommendations to the
parties regarding accessibility options for
plaintiff given his current functional
status.
Mr. Tinajero filed a notice of appeal of the 16 October
2012 opinion and award on 18 October 2012 and of the interim 13
September 2010 order in a supplemental notice of appeal on 19
November 2012. Defendants filed notice of appeal of the 16
October 2012 order on 30 October 2012, and supplemental notice
of appeal of the 13 September 2010 order on 30 November 2012.
Discussion
Our review 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." Cross v. Blue Cross/Blue
Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991).
"The findings of the Commission are conclusive on appeal when
such competent evidence exists, even if there is plenary
evidence for contrary findings." Hardin v. Motor Panels, Inc.,
136 N.C. App. 351, 353, 524 S.E.2d 368, 371 (2000). As the
fact-finding body, "'[t]he Commission is the sole judge of the
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credibility of the witnesses and the weight to be given their
testimony.'" Deese v. Champion Int'l Corp., 352 N.C. 109, 115,
530 S.E.2d 549, 552 (2000) (quoting Adams v. AVX Corp., 349 N.C.
676, 680, 509 S.E.2d 411, 413 (1998)).
I. Defendants' Appeal
A. Timeliness of Appeal
As a preliminary matter, we address Mr. Tinajero's
contention that defendants did not timely appeal the entry of
the 13 September 2010 opinion and award and, therefore, this
Court lacks jurisdiction to consider defendants' arguments
regarding the Commission's requirement that they pay for Mr.
Tinajero's housing. Mr. Tinajero points out that defendants' 30
October 2012 notice of appeal stated only that defendants were
appealing from the 16 October 2012 opinion and award.
Defendants' timely first notice of appeal did not mention
the 13 September 2010 opinion and award. Defendants'
supplemental notice of appeal, indicating that they were also
appealing the 13 September 2010 opinion and award, was filed
more than 30 days after defendants' receipt of the final opinion
and award of the Commission. See N.C.R. App. P. 3(c)(1), (2)
(providing that in order to be timely, notice of appeal must be
filed either within 30 days of entry of judgment if the judgment
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was served with three days, or within 30 days of service to a
party if service was not effected within three days).
We note that while Rule 3(d) of the Rules of Appellate
Procedure provides that the notice of appeal "shall designate
the judgment or order from which appeal is taken," N.C. Gen.
Stat. § 1-278 (2013) provides: "Upon an appeal from a judgment,
the court may review any intermediate order involving the merits
and necessarily affecting the judgment." This Court has held
that even when a notice of appeal fails to reference an
interlocutory order, in violation of Rule 3(d), appellate review
of that order pursuant to N.C. Gen. Stat. § 1-278 is proper
under the following circumstances: (1) the appellant must have
timely objected to the order; (2) the order must be
interlocutory and not immediately appealable; and (3) the order
must have involved the merits and necessarily affected the
judgment. Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637,
641, 535 S.E.2d 55, 59 (2000). All three conditions must be
met. Id. at 642, 535 S.E.2d at 59.
Here, defendants immediately objected to the 13 September
2010 opinion and award by appealing it. See Sellers v. FMC
Corp., 216 N.C. App. 134, 139, 716 S.E.2d 661, 665 (2011)
(holding, in workers' compensation case, that claim in reply
brief that Commission's prior ruling was in error was sufficient
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objection to meet first requirement of N.C. Gen. Stat. § 1-278).
In addition, this Court already concluded, when dismissing
defendants' appeal, that the order was interlocutory and not
immediately appealable. Tinajero, 214 N.C. App. 563, 714 S.E.2d
867, 2011 N.C. App. LEXIS 1832, 2011 WL 3570046 (2011).
Finally, the 13 September 2010 opinion and award involved
the merits and necessarily affected the final opinion and award
because the 13 September 2010 opinion and award substantially
decided the primary issues in contention, including Mr.
Tinajero's housing and transportation. Since defendants' appeal
of the 13 September 2010 opinion and award meets the
requirements of N.C. Gen. Stat. § 1-278, this Court has
jurisdiction to consider defendants' arguments. See, e.g.,
Yorke v. Novant Health, Inc., 192 N.C. App. 340, 348, 666 S.E.2d
127, 133 (2008) (holding that even though notice of appeal
referenced only final judgment and post-trial order denying
motion for new trial, Court had jurisdiction to review denial of
motion for directed verdict under N.C. Gen. Stat. § 1-278 when
defendant objected at trial and denial of directed verdict
involved merits and affected final judgment); Brooks, 139 N.C.
App. at 642-43, 535 S.E.2d at 59 (finding requisites of N.C.
Gen. Stat. § 1-278 satisfied when directed verdict dismissing
all counterclaims against co-defendants was objected to at
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trial, was implicated by motion specifically appealed, was
interlocutory, and order deprived defendant of potential
claims).
B. Commission's Requirement that Defendants Pay for
Plaintiff's Housing
Defendants first contend that the Commission erred in
ordering that defendants "provide handicapped accessible housing
for [Mr. Tinajero], which at [that] time [was] a handicapped
accessible apartment that [could] accommodate the necessary 24-
hour daily attendant care for plaintiff. Defendants shall pay
for the lease of such apartment, but the selection of an
apartment must be reasonable under the circumstances."
Defendants contend that rent is an ordinary expense of life
required to be paid from wages.
Because Mr. Tinajero is totally and permanently disabled,
N.C. Gen. Stat. § 97-29 (2007) controls, and "compensation,
including medical compensation, shall be paid for by the
employer during the lifetime of the injured employee." Medical
compensation, in turn, was defined in N.C. Gen. Stat. § 97-2(19)
(2007) as:
medical, surgical, hospital, nursing, and
rehabilitative services, 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 . . . .
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(Emphasis added.)
In Derebery, our Supreme Court, in applying a prior version
of N.C. Gen. Stat. § 97-29, construed what compensation falls
within the scope of "other treatment." 318 N.C. at 199-200, 347
S.E.2d at 819. The plaintiff in Derebery had presented evidence
that he had lived with his parents in their rented home and that
the owner of the home refused to allow the plaintiff's family to
modify the house structurally to accommodate the plaintiff's
wheelchair. Id. at 198, 347 S.E.2d at 818. The Commission had
ordered the defendants, pursuant to N.C. Gen. Stat. § 97-29, to
provide the plaintiff with a wheelchair-accessible place to
live. Id. at 195-96, 347 S.E.2d at 816-17.
This Court reversed, holding that the provision requiring
payment for "'other treatment or care'" could not "be reasonably
interpreted to extend the employer's liability to provide a
residence for an injured employee." Derebery v. Pitt Cnty. Fire
Marshall, 76 N.C. App. 67, 72, 332 S.E.2d 94, 97 (1985). The
Supreme Court reversed this Court, holding "that the employer's
obligation to furnish 'other treatment or care' may include the
duty to furnish alternate, wheelchair accessible housing." 318
N.C. at 203-04, 347 S.E.2d at 821. Specifically, "an employer
must furnish alternate, wheelchair accessible housing to an
injured employee where the employee's existing quarters are not
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satisfactory and for some exceptional reason structural
modification is not practicable." Id. at 203, 347 S.E.2d at
821.
Defendants, in this case, however, urge this Court to
follow Justice Billings' dissent in Derebery, in which she
concluded that housing is an ordinary necessity of life that the
employee is required to pay for out of his disability
compensation. Id. at 205-06, 347 S.E.2d at 822 (Billings, J.,
dissenting). Defendants contend that this Court previously
adopted that dissent in Timmons I.
The plaintiff in Timmons I was a paraplegic who initially
lived with his parents. 123 N.C. App. at 458, 473 S.E.2d at
357. The defendant paid to modify the plaintiff's parents' home
to make it accessible for the plaintiff's use. Id.Subsequently, the plaintiff moved to a handicapped-accessible
apartment where he lived for approximately eight and a half
years. Id. When the rent increased, the plaintiff moved back
to his parents' home. Id. Ultimately, however, unlike the
plaintiff in Derebery or Mr. Tinajero in this case, the
plaintiff in Timmons I returned to full-time employment with the
defendant. Id. He was able to purchase land and requested that
the Commission order the defendant to finance the construction
of a new, handicapped-accessible home on that land. Id. at 458-
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59, 473 S.E.2d at 357-58. The Commission, however, refused to
order that the defendant pay for the construction of a new
house, but rather ordered only that the defendant pay the
expense of making the plaintiff's new home handicapped
accessible. Id. at 459, 473 S.E.2d at 358.
Both the plaintiff and the defendant appealed to this
Court. On appeal, the defendant argued that it should not be
required to provide any assistance in constructing the
plaintiff's residence. Id. at 460, 473 S.E.2d at 358. The
plaintiff in turn contended that the defendant should be
required to bear the entire cost of constructing his residence.
Id. This Court affirmed the Commission, concluding based on
Derebery, that "the Commission's finding that the accommodations
at plaintiff's parents' home are no longer suitable supports its
conclusion that plaintiff is entitled to have defendant pay for
adding to plaintiff's new home those accessories necessary to
accommodate plaintiff's disabilities." Id. at 461, 473 S.E.2d
at 359 (internal quotation marks omitted).
However, the Court rejected the plaintiff's argument that
Derebery required the defendant to pay the entire cost of
constructing the plaintiff's residence:
As pointed out by Justice (later Chief
Justice) Billings in her dissent in
Derebery, the expense of housing is an
ordinary necessity of life, to be paid from
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the statutory substitute for wages provided
by the Worker's Compensation Act. The costs
of modifying such housing, however, to
accommodate one with extraordinary needs
occasioned by a workplace injury, such as
the plaintiff in this case, is not an
ordinary expense of life for which the
statutory substitute wage is intended as
compensation. Such extraordinary and
unusual expenses are, in our view, properly
embraced in the "other treatment" language
of G.S. § 97-25, which the basic costs of
acquisition or construction of the housing
is not.
Id. at 461-62, 473 S.E.2d at 359. Accordingly, the Court
affirmed the Commission's opinion and award that defendant only
"'pay for adding to plaintiff's new home those accessories
necessary to accommodate plaintiff's disabilities.'" Id. at
462, 473 S.E.2d at 359.
From that unanimous decision of this Court, the defendant
filed a petition for discretionary review, asking the Supreme
Court to consider "[w]hether an employer [was] required by G.S.
97-25 to pay the cost of construction of a house, in whole or in
part, for an employee who is a paraplegic due to a work related
injury where the employee has returned to full-time employment
and the employer has previously modified one house for
employee's use." After the Supreme Court allowed the petition,
Timmons v. N.C. Dep't. of Transp., 344 N.C. 739, 478 S.E.2d 13(1996), the defendant urged the Court to overturn Derebery or to
"consider the well reasoned dissent of Justice Billings in
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Derebery and perhaps now adopt it as the rule of law." The
plaintiff, however, argued that Derebery mandated payment for
the cost of the entirety of the construction of his home.
The Supreme Court affirmed this Court's order in a per
curiam decision. Timmons v. N.C. Dep't of Transp., 346 N.C.
173, 484 S.E.2d 551 (1997). "'Per curiam decisions stand upon
the same footing as those in which fuller citations of
authorities are made and more extended opinions are written.'"
Total Renal Care of N.C., LLC v. N.C. Dep't of Health & Human
Servs., 195 N.C. App. 378, 386, 673 S.E.2d 137, 143 (2009)
(quoting Bigham v. Foor, 201 N.C. 14, 15, 158 S.E.2d 548, 549
(1931)). Although defendants urge us to adopt a reading of
Timmons by which Justice Billings' dissent in that case has been
adopted as the governing rule of law in North Carolina, our
Supreme Court's rejection of that argument on discretionary
review in Timmons I precludes such a reading of the case.
This Court has since addressed both Derebery and Timmons I
in a case in which the parties both made arguments nearly
identical to those in this case:
As a preliminary point, we note that
the parties' arguments assume rules that are
rigid and broadly applicable in the cases
discussed above. A reading of section 97–252
2
This Court noted in Espinosa that Derebery's construction
of the phrase "other treatment" applies equally to cases under
N.C. Gen. Stat. § 97-29 and to cases under N.C. Gen. Stat. § 97-
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makes it clear, however, that an award of
"other treatment" is in the discretion of
the Commission. 2005 N.C. Sess. Laws ch.
448, § 6.2 ("[T]he [Commission] may order
such further treatments as may in the
discretion of the Commission be
necessary."). Section 97–2(19), as written
at the time of Plaintiff's injury, further
explained that the type of medical
compensation the employer must pay is "in
the judgment of the Commission" as long as
it is "reasonably . . . required to effect a
cure or give relief." 1991 N.C. Sess. Laws
Ch. 703, § 1. The Supreme Court's decision
in Derebery and our own decision in Timmons
represent the outer limits of the
Commission's authority under those statutes,
not entirely new rules to be followed in
place of or in addition to the statutes
created by our legislature.
Espinosa, ___ N.C. App. at ___, 752 S.E.2d at 160-61.
In Espinosa, the Commission had determined that the
defendants should pay the pro rata difference between the rent
required for the plaintiff's new, handicapped-accessible home
and the rent the plaintiff had to pay as an ordinary expense of
life before his injury. Id. at ___, 752 S.E.2d at 161. In
upholding the Commission's decision, this Court explained:
The Commission sensibly reasoned that living
arrangements constitute an ordinary expense
of life and, thus, should be paid by the
employee. The Commission also recognized,
however, that a change in such an expense,
which is necessitated by a compensable
injury, should be compensated for by the
employer. Because Plaintiff did not own his
own home in this case, he was required to
25. ___ N.C. App. at ___ n.6, 752 S.E.2d at 159 n.6
-24-
find new rental accommodations that would
meet his needs. In this factual
circumstance, it was appropriate for the
Commission to require the employer to pay
the difference between the two.
While circumstances may occur in which
an employer is required to pay the entire
cost of the employee's adaptive housing,
neither the Supreme Court's opinion in
Derebery nor our holding in Timmons support
Plaintiff's assertion that such a
requirement is necessary whenever an injured
worker does not own property or a home.
Such a ruling would reach too far.
Id. at ___, 752 S.E.2d at 161.
In this case, in contrast, the Commission concluded that
defendants should pay the full cost of Mr. Tinajero's adaptive
house. Consistent with Derebery, Timmons I, and Espinosa, the
Commission noted first that "because plaintiff owns no dwelling
that can be renovated to provide handicapped accessible housing,
defendants are responsible for providing handicapped accessible
housing for plaintiff. While the case law has held that the
provision of ordinary housing is an expense of daily life to be
paid from an injured worker's disability compensation, the
additional cost of renting handicapped accessible housing is not
an ordinary expense . . . ."
While defendants urge that they should only have to pay
that portion of the rent that exceeds the amount Mr. Tinajero
was paying prior to his injury -- the approach adopted by the
-25-
Commission in Espinosa -- the Commission, in this case, although
acknowledging that Mr. Tinajero, prior to his injury, had shared
the cost of an apartment with two other people, rejected
defendants' contention. The Commission pointed out that
defendants were fully willing to pay "for many years . . . the
entire cost of plaintiff's housing at both Shepherd Center and
Briarcliff Haven." Moreover, while Mr. Tinajero was housed at
Briarcliff Haven, defendants also had to pay for outside nursing
care to supplement the care provided by the facility because the
facility was consistently unable to "properly follow plaintiff's
medical orders and timely perform his intermittent
catheterizations." Thus, as the Commission found, defendants
were completely willing to pay the cost of a skilled nursing
home or long-term care facility, even if they had to also pay
for additional outside nursing care, but they were unwilling to
pay the cost of leasing an apartment.
The Commission expressly found that the housing chosen by
defendants, Briarcliff Haven, was not suitable in that (1)
living in that facility was "having a negative impact on [Mr.
Tinajero's] mental health"; (2) the medical care he was
receiving in the facility was inadequate; and (3) moving Mr.
Tinajero from the nursing facility to an apartment served the
interests of the repeatedly stated medical priority of
-26-
"[p]lacing [Mr. Tinajero] in a position to maximize his
independence . . . ." Although defendants argue with the
Commission's findings that Mr. Tinajero needed to leave
Briarcliff Haven, those findings are supported by ample evidence
in the record.
Consequently, defendants' position before the Commission
was that they would pay fully for housing that the Commission
determined was not in Mr. Tinajero's best medical interests and
was not suitable, but they would not pay for housing -- in the
form of an apartment with attendant care -- that the Commission
found, based on competent evidence, was in Mr. Tinajero's best
medical interests. In other words, defendants conditioned their
full payment of housing costs on Mr. Tinajero's accepting
housing contrary to his medical interests.
Under the particular circumstances of this case, we hold
that the Commission properly exercised its discretion in
concluding that defendants should not be allowed to force such a
choice on an injured employee. Rather, under the circumstances
found by the Commission, the Commission acted within its
authority as set out in Derebery, Timmons I, and Espinosa, in
determining that because defendants had previously been willing
to pay the full cost for Mr. Tinajero's housing in a skilled
nursing facility, which was not in Mr. Tinajero's medical best
-27-
interests, they were obligated to "pay the rental cost of
reasonable handicapped accessible housing," which was in Mr.
Tinajero's medical best interests. We, therefore, affirm the
Commission's ruling on Mr. Tinajero's housing.3
II. Plaintiff's Appeal
A. Denial of Mr. Tinajero's Request for Depositions
Mr. Tinajero contends that the Commission erred in refusing
to allow him to depose Ms. Caston and Mr. May. Under N.C. Gen.
Stat. § 97-85(a) (2013), the Full Commission may, upon
application by a party, "receive further evidence." However, a
party "does not have a substantial right to require the
Commission to hear additional evidence, and the duty to do so
only applies if good ground is shown." Allen v. Roberts Elec.
Contractors, 143 N.C. App. 55, 65-66, 546 S.E.2d 133, 141
(2001). "'[T]he question of whether to reopen a case for the
taking of additional evidence rests in the sound discretion of
the Industrial Commission, and its decision will not be
disturbed on appeal in the absence of an abuse of discretion.'"
Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 29, 514
3
Defendants also argue that Mr. Tinajero could not lawfully
lease an apartment in Atlanta because he is undocumented.
Defendants contend that they cannot legally pay rent for an
apartment that Mr. Tinajero cannot lawfully lease. Defendants
cite no legal authority for this position and, therefore, we do
not address it.
-28-
S.E.2d 517, 522 (1999) (quoting Schofield v. Tea Co., 299 N.C.
582, 596, 264 S.E.2d 56, 65 (1980)).
1. Susan Caston
With respect to Ms. Caston, Mr. Tinajero argues more
specifically that his due process rights and the Rules of the
Industrial Commission were violated when the Full Commission
admitted Ms. Caston's report, but denied Mr. Tinajero's motion
to depose Ms. Caston. Our courts have long held, based on
principles of due process and court procedure, that "[w]here the
Commission allows a party to introduce new evidence which
becomes the basis for its opinion and award, it must allow the
other party the opportunity to rebut or discredit that
evidence." Goff v. Foster Forbes Glass Div., 140 N.C. App. 130,
134-35, 535 S.E.2d 602, 605-06 (2000).
In Allen v. K-Mart, 137 N.C. App. 298, 302, 528 S.E.2d 60,
63 (2000), the defendants argued that the Commission had abused
its discretion in considering two independent medical
examinations as evidence without permitting the defendants to
depose or cross-examine either physician. This Court agreed,
holding that "[d]efendants should have been allowed the
opportunity to discredit the doctors' reports." Id.This Court observed that "[t]he opportunity to be heard and
the right to cross-examine another party's witnesses are
-29-
tantamount to due process and basic to our justice system." Id.
at 304, 528 S.E.2d at 64. Based on these principles, the Court
"agree[d] with defendants that the Commission manifestly abused
its discretion by allowing significant new evidence to be
admitted but denying defendants the opportunity to depose or
cross-examine the physicians, or requiring plaintiff to be
examined by experts chosen by defendants." Id. The Court,
therefore held "that where the Commission allows a party to
introduce new evidence which becomes the basis for its opinion
and award, it must allow the other party the opportunity to
rebut or discredit that evidence." Id., 528 S.E.2d at 64-65.
Here, the Commission specifically ordered that the parties
agree on a person to prepare a life care plan and conduct an
assessment of Mr. Tinajero's current living arrangements at
defendants' expense. This Court concluded that the prior appeal
was interlocutory and dismissed it so that additional
proceedings related to the life care plan could take place. The
parties ultimately agreed upon Susan Caston as the person to
conduct the further assessment. In denying Mr. Tinajero's
motion to depose Ms. Caston following completion of her report,
the Commission found "that her report provides sufficient
information for the Full Commission to rule upon the remaining
issues in the case, and therefore, that a deposition at this
-30-
point would only serve to further delay the entry of a final
Opinion and Award."
The Commission then ordered that "plaintiff's motion to
depose Ms. Caston is hereby DENIED, and Ms. Caston's report is
received into evidence." In the opinion and award that followed
this ruling, the Commission repeatedly referenced Ms. Caston's
report as the support for various findings of fact. Further,
even though Ms. Caston had not addressed all of the
recommendations made by Mr. Tinajero's life care planner, Mr.
Fryar, and Mr. Tinajero, in his motion to depose Ms. Caston, had
indicated that a deposition was necessary to obtain her opinion
regarding the appropriateness of those recommendations, the
Commission denied those recommendations. Mr. Tinajero was given
no opportunity to establish through Ms. Caston that those
recommendations were appropriate.
This case is indistinguishable from Allen and Goff.
Defendants, however, argue that Mr. Tinajero waived his request
for a deposition and agreed to the Commission's proceeding
without deposition of the experts in the case. Defendants point
to an 8 August 2012 letter from Mr. Tinajero's counsel to the
Full Commission that highlighted Mr. Tinajero's need for a
speedy resolution of his case and requested a ruling from the
-31-
Commission on the motion for depositions to further the final
resolution of the case:
What the Plaintiff prays for now is the
most expeditious ruling possible. We
respectfully request that you promptly enter
an order allowing us to notice the defense
with the depositions outlined in our motion.
Having more information and an expanded
opinion from Caston can only help the
Commission make a better ruling without
causing further delays. . . . We were
disappointed that Caston's report did not
have the quality and depth that a
quadriplegic plaintiff deserves -- given the
large number of spinal cord injury protocols
to be followed -- so our intention was to
flesh out those opinions through an
expedited deposition.
Otherwise, we respectfully request that
our motion be denied and that the Commission
rule on the balance of the case as
expeditiously as possible. We venture to
guess that Zurich American Insurance Co.
will continue to appeal the case back to the
Court of Appeals, and we would like to get
that process underway as soon as possible.
We do not want any further delay to be
experienced by this very young man who
suffers the consequences of this drawn out
legal proceeding.
(Emphasis added.)
We hold that this letter -- essentially simply asking the
Commission to allow or deny the motion as soon as possible --
cannot reasonably be read as a waiver of Mr. Tinajero's request
to take the deposition of Ms. Caston. Although the language of
the letter suggests frustration with the delay, it does not
-32-
suggest that Mr. Tinajero was acquiescing in the admission of
the contents of Ms. Caston's report without objection.
In sum, Mr. Tinajero properly requested leave to take Ms.
Caston's deposition once he received Ms. Caston's report. Under
Allen and Goff, the Commission erred in admitting Ms. Caston's
report without allowing Mr. Tinajero an opportunity to depose
Ms. Caston. We, therefore, reverse the 16 October 2012 opinion
and award and remand for further proceedings, including the
entry of a new opinion and award following the deposition of Ms.
Caston.
2. V. Robert May
Mr. Tinajero also argues that the Commission erred in
denying his request to depose Mr. May. As to this request, Mr.
Tinajero's motion asked that Mr. May's deposition be taken "for
the limited purpose of authenticating the attached submissions
and resulting report of the peer review of [Mr. Tinajero's] life
care plan [created by Mr. Fryar] by the International Commission
on Health Care Certification." The Commission found as to that
motion that Mr. Tinajero sought "to rehabilitate Mr. Fryar and
his life care plan, an issue that has already been ruled upon by
the Commission."
We cannot conclude that the Commission abused its
discretion in denying a request to take a deposition for the
-33-
sole purpose of asking the Commission to reconsider a prior
ruling. Nevertheless, because we acknowledge that it is
possible Ms. Caston's testimony may provide a basis for renewing
the motion, our holding is without prejudice to Mr. Tinajero's
filing a new motion to take Mr. May's deposition following Ms.
Caston's deposition.
B. Transportation
We next address Mr. Tinajero's contention that the
Commission erred in refusing to order defendants to provide Mr.
Tinajero with the use of an adaptive van. The Commission made
the following conclusion of law regarding Mr. Tinajero's
transportation needs:
Defendants are not required to purchase or
lease adaptive transportation for plaintiff
or for his use. McDonald v. Brunswick Elec.
Membership Corp., 77 N.C. App. 753, 336
S.E.2d 407 (1985). Defendants have provided
reasonable transportation for plaintiff
through a private transportation service,
access to public transportation, and a
motorized wheelchair and shall continue to
do so. N.C. Gen. Stat. §97-2(19). Should
plaintiff purchase his own vehicle,
defendants are obligated to modify the same
to accommodate plaintiff's disability.
McDonald v. Brunswick Elec. Membership
Corp., supra, at 753, 336 S.E.2d at 407.
Mr. Tinajero argues that the Commission improperly relied
upon McDonald. While we agree with Mr. Tinajero that McDonald
can no longer stand for the proposition that an employer may
-34-
never be required to provide a plaintiff with a specially-
equipped van, we do not agree that the Commission applied such a
rigid rule.
In McDonald, 77 N.C. App. at 753, 336 S.E.2d at 407, the
plaintiff suffered a compensable injury by accident arising out
of his employment that resulted in the amputation of both of his
legs and his left arm. The Commission concluded that the
defendants were required to provide the plaintiff with a
specially-equipped van on the grounds that it was a reasonable
and necessary rehabilitative service within the meaning of N.C.
Gen. Stat. § 97-29. 77 N.C. App. at 754, 366 S.E.2d at 407.
On appeal, this Court reversed. Relying solely on Derebery
v. Pitt Cnty. Fire Marshall, 76 N.C. App. 67, 332 S.E.2d 94(1985), this Court "conclude[d] that neither the phrase 'other
treatment or care' nor the term 'rehabilitative services' in
G.S. 97-29 can reasonably be interpreted to include a specially-
equipped van. This language in the statute plainly refers to
services or treatment, rather than tangible, non-medically
related items such as a van; thus, it would be contrary to the
ordinary meaning of the statute to hold that it includes the van
purchased by plaintiff." McDonald, 77 N.C. App. 756-57, 336
S.E.2d at 409.
-35-
Of course, subsequently, our Supreme Court reversed this
Court's decision on which McDonald's holding was founded and
expressly rejected the reasoning adopted by McDonald. Following
the Supreme Court's decision in Derebery, there can no longer be
a black letter rule that a defendant cannot be required to
provide a specially-adapted van and can only be required to
modify a van already owned by a plaintiff. This Court
subsequently recognized that McDonald was superseded by Derebery
in Grantham v. Cherry Hosp., 98 N.C. App. 34, 39-40, 389 S.E.2d
822, 825 (1990).
Under the Supreme Court's decision in Derebery, an employer
may be required to provide adaptive transportation, including
use of a specially-adapted van, if the plaintiff's existing
access to transportation is not satisfactory and "for some
exceptional reason" modification of those modes of
transportation to make it satisfactory "is not practicable."
318 N.C. at 203, 347 S.E.2d at 821. Our review of the
Commission's opinion and award indicates that the Commission
made the findings required by Derebery even though it cited
McDonald as support for its conclusion.
The Commission found regarding Mr. Tinajero's
transportation needs:
Plaintiff has never possessed a driver's
license or owned a motor vehicle. Since his
-36-
discharge from Shepherd Center, defendants
have provided transportation for plaintiff
through a private company for medical
visits, therapy, and recreation at Shepherd
Center, and social activities. Defendants
also assisted plaintiff in obtaining his
MARTA pass for the public transportation
system in Atlanta. He has an electric
wheelchair he uses for local trips. Dr.
Bilsky and Dr. Scelza considered these
reasonable transportation options for
plaintiff. Defendants are not obligated to
purchase a vehicle for plaintiff, but would
be obligated to modify any vehicle plaintiff
purchases for his own transportation to make
it accessible to plaintiff's needs. The
Full Commission finds that the
transportation services currently being
provided plaintiff by defendants are
reasonable.
In other words, the Commission found that Mr. Tinajero's
access to transportation is satisfactory at this time. This
finding is supported by competent evidence and, therefore, is
binding. Under Derebery and given this finding, the Commission
was not required to mandate that defendants purchase a vehicle
for Mr. Tinajero. We, therefore, affirm this portion of the
Commission's opinion and award.4
C. Taxation of Attorneys' Fees and Costs
Mr. Tinajero next contends that the Full Commission erred
by failing to tax defendants with attorneys' fees for
4
We note that on remand, the Commission's decision regarding
transportation may be affected by Mr. Tinajero's deposition of
Ms. Caston since her report specifically addressed
transportation.
-37-
unreasonably pursuing their defense of this action before the
Commission pursuant to N.C. Gen. Stat. § 97-88.1 (2013). Under
that statute, "[i]f the Industrial Commission shall determine
that any hearing has been brought, prosecuted, or defended
without reasonable ground, it may assess the whole cost of the
proceedings including reasonable fees for defendant's attorney
or plaintiff's attorney upon the party who has brought or
defended them." Id. (emphasis added).
The purpose of N.C. Gen. Stat. § 97-88.1 is to prevent
"'stubborn, unfounded litigiousness' which is inharmonious with
the primary purpose of the Workers' Compensation Act to provide
compensation to injured employees." Beam v. Floyd's Creek
Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192
(1990) (quoting Sparks, 55 N.C. App. at 664, 286 S.E.2d at 576).
The statute's reference to the Commission's assessing "the whole
cost" reveals the legislature's intent that the Commission would
decide this issue at the end of the litigation when "the whole
cost" would be known.
Here, the Commission concluded in its interlocutory order
of 13 September 2010 with regard to defendants' liability under
N.C. Gen. Stat. § 97-88.1:
Defendants did not defend this claim in an
unreasonable manner or without reasonable
grounds and, therefore, plaintiff is not
entitled to attorney's fees pursuant to N.C.
-38-
Gen. Stat. §97-88.1; Sparks v. Mountain
Breeze Restaurant, 55 N.C. App. 663, 286
S.E.2d 575 (1982).
Especially since the Commission's 13 September 2010 opinion and
award ordered the preparation of a life care plan, the
Commission should not, at that stage, have decided whether Mr.
Tinajero was entitled to attorneys' fees under N.C. Gen. Stat. §
97-88.1. Instead, the proper point in the proceedings for the
Commission to address this issue was in the Commission's final
disposition of the case in its 16 October 2012 order.
We, therefore, reverse the Commission's determination that
Mr. Tinajero is not entitled to fees under N.C. Gen. Stat. § 97-
88.1. On remand, following the taking of Ms. Caston's
deposition, the Commission shall revisit whether such an award
is appropriate and, if so, what the amount of any award should
be, in its final opinion and award.
Mr. Tinajero further argues that the Commission erred by
failing to tax all costs against defendants, including the costs
related to Mr. Tinajero's certified life care plan. The
Commission concluded in its 13 September 2010 opinion and award:
The report and life care plan prepared by
Michael Fryar in this case was not an
unbiased, objective, fair, and balanced
assessment and is not accepted by the Full
Commission as such. . . . Defendants are
not required to pay for Mr. Fryar's report,
because the same does not constitute a valid
-39-
"rehabilitative service" within the meaning
of N.C. Gen. Stat. §97-2(19).
Because we have remanded for the taking of Ms. Caston's
deposition and Mr. Tinajero has indicated his intent to question
Ms. Caston regarding various components of Mr. Fryar's plan, the
Commission should, following that deposition, revisit whether
Mr. Fryar's report constituted a valid "rehabilitative service"
and whether defendants should pay for the cost of the
preparation of that report.
Finally, Mr. Tinajero argues that defendants should be
assessed attorney's fees for pursuing the prior interlocutory
appeal. As Mr. Tinajero acknowledges, he requested in his
motion to dismiss filed with this Court in the prior appeal that
this Court instruct the Commission on remand to determine what
amount of attorneys' fees and costs should be taxed against
defendants as sanctions. Although this Court granted the motion
to dismiss, it did not address Mr. Tinajero's request for
attorneys' fees and costs and, therefore, implicitly denied that
request. We are bound by the prior panel's failure to award
attorneys' fees and costs based on the interlocutory appeal and
cannot, in this later appeal, determine that fees and costs
should have been awarded.
Conclusion
-40-
In sum, we affirm the Commission's determination that
defendants were required to provide Mr. Tinajero with
handicapped accessible housing and affirm its determination that
defendants currently are providing reasonable transportation for
Mr. Tinajero. We reverse the Commission's 16 October 2012
opinion and award for failure to allow Mr. Tinajero to take the
deposition of Ms. Caston and remand to allow the taking of that
deposition and entry of a new opinion and award taking into
account not only Ms. Caston's report but also her deposition.
Finally, we reverse the Commission's determination that Mr.
Tinajero was not entitled to attorneys' fees under N.C. Gen.
Stat. § 97-88.1 and was not entitled to have defendants pay for
the cost of the preparation of Mr. Fryar's life care plan and
remand for a determination of those two issues at the completion
of the proceedings on remand.
Affirmed in part; reversed in part.
Judge ELMORE concurs.
Judge DILLON concurs in part and dissents in part by
separate opinion.
NO. COA13-9
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
SANTOS TINAJERO,
Employee,
Plaintiff,
v. North Carolina
Industrial Commission
I.C. No. 091464
BALFOUR BEATTY INFRASTRUCTURE, INC.,
Employer,
ZURICH AMERICAN INSURANCE COMPANY,
Carrier,
Defendants.
DILLON, Judge, concurring in part and dissenting in part.
I agree with the majority on all issues except with regard
to the issue addressed in Section II.B. of its opinion, which
addresses the Full Commission’s requirement that Defendants pay
for Plaintiff’s housing. Accordingly, I concur, in part, and
dissent, in part.
On the housing issue, Defendants contend, in part, that the
Commission erred by ordering Defendants to pay for the entire
lease expense of Plaintiff’s handicapped accessible apartment.
The Commission ordered Defendants to pay, inter alia, weekly,
wage-replacement benefits of “$496.77 for the remainder of
Plaintiff’s lifetime as provided by N.C. Gen. Stat. § 97-31(17)”
and the full amount of Plaintiff’s lease payments for a
-2-
handicapped accessible apartment as “other treatment” under N.C.
Gen. Stat. § 97-25. The majority concluded that the Commission
did not err. I agree with the majority that Defendants are,
indeed, obligated to provide benefits to cover Plaintiff’s lease
payment in this case. However, I believe a portion of the lease
payment is being provided through the weekly benefits Defendants
are paying to cover Plaintiff’s ordinary expenses of life; and,
therefore, I believe the Commission erred by classifying
Plaintiff’s entire lease payment as “other treatment” under G.S.
97-25.
It is certainly within the discretion of the Commission to
make an award for “other treatment” under G.S. 97-25. Espinosa
v. Tradesource, Inc., __ N.C. App. __, __, 752 S.E.2d 153, 159
(2013). However, the Commission’s discretion to make such an
award is limited to that which is reasonably “required to effect
a cure or give relief[.]” Id. at __, 752 S.E.2d at 163
(citations omitted). In this case, Plaintiff’s accident
required his housing arrangement to be modified. Prior to the
accident, he rented an apartment, living with two other people.
Now, he requires a more expensive apartment that is handicapped
accessible and which allows for 24-hour attendant care. I
believe in this case that some portion of Plaintiff’s lease
-3-
payments is an ordinary expense of life and some portion is an
expense designed to “effect a cure and give relief.” By
classifying the entire amount as “other treatment,” the
Commission is, in effect, providing Plaintiff a double recovery
of that portion of his lease expense which represents an
ordinary expense of life, since he is already being compensated
for this portion from the weekly benefits. I believe this is
unreasonable and is not a result that was intended by our
General Assembly or required by decisions of our appellate
courts.
The majority differentiates this case from Espinosa, supra,
in which we affirmed the Full Commission’s approach to classify
a portion of the injured worker’s adaptive housing as an
ordinary expense of life. Specifically, the majority points out
that, unlike Espinosa, Defendants in this case were paying
Plaintiff’s entire housing expenses while Plaintiff was housed
at a long-term care facility and were willing to continue paying
his entire housing costs if he remained at the long-term care
facility, rather than move into an apartment. Whether
Defendants were, in fact, legally obligated to pay the entire
housing cost of a nursing home or long-term care facility for
Plaintiff is not before this Court, since the Commission has
-4-
determined that Plaintiff should live in an apartment. However,
I do not believe that Defendants’ prior willingness to pay the
entire cost for Plaintiff’s housing while he remained in a long-
term care facility is dispositive on the issue of whether
Defendants are legally obligated to pay the entire rental
expense of Plaintiff’s apartment as “other treatment” under G.S.
97-25.