Chandler v. Atl. Scrap & Processing , 244 N.C. App. 155 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1351
Filed: 1 December 2015
North Carolina Industrial Commission, No. 375716
CONNIE CHANDLER, by her Guardian Ad Litem CELESTE M. HARRIS, Employee,
Plaintiff,
v.
ATLANTIC SCRAP AND PROCESSING, Employer, and LIBERTY MUTUAL
INSURANCE CO., Carrier, Defendants.
Appeal by defendants from opinion and award entered on 11 August 2014 by
the North Carolina Industrial Commission. Heard in the Court of Appeals on 6 May
2015.
Walden & Walden, by Daniel S. Walden, for plaintiff-appellee.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Hatcher Kincheloe and M.
Duane Jones, for defendant-appellants.
STROUD, Judge.
Following this Court’s prior opinion affirming the Industrial Commission’s
award of compensation for attendant care services provided to Connie Chandler
(“plaintiff”) by her husband, Lester Chandler, and our Supreme Court’s affirmance of
that opinion, Atlantic Scrap and Processing (“Atlantic Scrap”) and Liberty Mutual
Insurance Co. (“Liberty Mutual,” collectively “defendants”) appeal from the opinion
and award of the Industrial Commission entered on remand, which awarded plaintiff
CHANDLER V. ATL. SCRAP & PROCESSING
Opinion of the Court
interest on the unpaid portions of attendant care compensation and attorneys’ fees
for the prior appeal. Defendants argue that on remand the Commission failed to
follow our Supreme Court’s mandate because it did not make additional findings of
fact on the reasonableness of plaintiff’s delay in requesting compensation for Mr.
Chandler’s attendant care services. Because the Industrial Commission complied
fully with the mandates of the Supreme Court and this Court, we affirm and grant
plaintiff’s motion for attorneys’ fees.
I. Background
We have previously set forth the factual and procedural background of this
case in this Court’s previous opinion:
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 bruise 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
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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 due 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 recommended that plaintiff be re-evaluated
concerning her cognitive functioning and memory
problems.
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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
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Opinion of the Court
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 December 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. Yuson again discussed Dr.
Naylor’s 20 July 2004 report with Nurse Wilson, including
that plaintiff required constant attendant care services due
to her cognitive and emotional impairments resulting from
her fall. However, defendants elected not to secure
attendant care services or pay Mr. Chandler for the
attendant care services he provided to plaintiff.
In the period from January 2005 through October
2007, plaintiff’s cognitive and emotional condition
continued to slowly become worse, regressing to that of a
four-year-old child due to her brain injury from her fall at
work. In April 2008, Dr. Yuson opined in a written note
that plaintiff was permanently totally disabled due to her
brain injury from her fall at work.
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Opinion of the Court
Chandler v. Atl. Scrap & Processing, 217 N.C. App. 417, 418-21, 720 S.E.2d 745, 747-
49 (2011) (“Chandler I”), aff’d per curiam and remanded, 367 N.C. 160-61, 749 S.E.2d
278 (2013).
On 10 December 2008, the Clerk of Court for Stokes County determined that
plaintiff was incompetent and appointed Mr. Chandler as guardian of the person of
plaintiff. On 11 December 2008, the Commission entered an order appointing Celeste
Harris as plaintiff’s guardian ad litem for this action.
In March 2009, Dr. Yuson again noted that plaintiff
had continued to get worse in her cognitive and emotional
conditions. On 3 April 2009, occupational therapist and life
care planner Vickie Pennington (“Ms. Pennington”)
prepared a life care plan concerning plaintiff. Ms.
Pennington’s recommendations concerning plaintiff’s care
included, inter alia, that plaintiff needs constant attendant
care for her lifetime, that plaintiff needs attendant care
services in her home rather than in an institution or
outside facility, and that it is not healthy or reasonable or
best for plaintiff that Mr. Chandler continue to care for
plaintiff exclusively. Dr. Yuson reviewed Ms. Pennington’s
life care plan, which he opined was medically necessary
and reasonable for plaintiff.
On 27 August 2008, plaintiff filed a Form 33 Request
that Claim be Assigned for Hearing, seeking “payment of
attendant care services by her husband Lester Chandler
beginning 20 July 2004 forward,” and an award of
permanent total disability. On 12 April 2009, defendants
filed a Form 33R response denying plaintiff’s claim for the
following reasons: (1) plaintiff’s “current medical
condition” was not causally related to her accident; (2)
plaintiff was not permanently and totally disabled; and (3)
plaintiff was not entitled to payment for attendant care
services “rendered prior to written approval of the
Commission, which has yet to be obtained.”
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Id. at 421-22, 720 S.E.2d at 749 (brackets omitted).
Plaintiff prevailed at her initial hearing before the Deputy Commissioner on
13 April 2009. Id. at 422, 720 S.E.2d at 749. The Deputy Commissioner found that
plaintiff was permanently totally disabled and that defendants must provide all
medical compensation, including payment at the rate of $15.00 per hour for Mr.
Chandler’s around-the-clock attendant care services starting on 28 June 2004, as well
as payment for additional services as noted in plaintiff’s life care plan. Id., 720 S.E.2d
at 749.
On 25 August 2009, defendants appealed Deputy
Commissioner Rideout’s opinion and award to the Full
Commission. On 20 November 2009, plaintiff moved the
Commission to award interest on the past due attendant
care pursuant to N.C. Gen. Stat. § 97-86.2 (2009), to be paid
by defendants directly to Mr. Chandler. On 25 February
2010, the Commission filed its opinion and award,
generally affirming Deputy Commissioner Rideout’s
opinion and award, but changing the hourly rate for
attendant care services payable to Mr. Chandler to $11.00
per hour for 15 hours per day, rather than $15.00 per hour
for 24 hours per day. The Commission declined to award
interest to Mr. Chandler “in its discretion.”
On 26 February 2010, plaintiff filed a motion to
amend the Commission’s 25 February 2010 opinion and
award, this time seeking an order of mandatory payment
of interest to plaintiff, instead of to Mr. Chandler, pursuant
to N.C. Gen. Stat. § 97-86.2. On 7 February 2011, the
Commission filed an order declining to award plaintiff the
interest. Plaintiff and defendants filed timely notices of
appeal to this Court.
Id. at 422-23, 720 S.E.2d at 749-50.
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In the first appeal, defendants’ main argument was that the Commission erred
in compensating Mr. Chandler for attendant care services because plaintiff failed to
request prior approval from the Commission for these services. Id. at 425, 720 S.E.2d
at 751. On 20 December 2011, this Court disagreed with defendant and held that Mr.
Chandler was entitled to compensation for attendant care services, because
“defendants had notice of plaintiff’s required attendant care services, which out of
necessity, were being provided by Mr. Chandler.” Id. at 427, 720 S.E.2d at 752. On
8 November 2013, on discretionary review, our Supreme Court affirmed per curiam
this Court’s decision but remanded the case to the Commission “for further
proceedings not inconsistent with [Mehaffey v. Burger King, 367 N.C. 120, 749 S.E.2d
252 (2013)].” Chandler v. Atl. Scrap & Processing, 367 N.C. 160-61, 749 S.E.2d 278
(2013).
On 11 August 2014, on remand, the Commission noted the “lengthy procedural
history” of this case and concluded that
the only matters before the Commission pursuant to the
remand by the appellate courts and the 9 January 2012
and 30 December 2013 mandates of the Court of Appeals
are for the Commission to (1) enter an award of interest on
the unpaid balance of the attendant care compensation
that defendants owe to plaintiff pursuant to N.C. Gen. Stat.
§ 97-86.2 and (2) determine the amount of attorneys’ fees
to be awarded to plaintiff’s counsel pursuant to N.C. Gen.
Stat. § 97-88 for defending against defendants’ appeal to
the Court of Appeals.
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Opinion of the Court
The Commission accordingly awarded interest on the unpaid balance of attendant
care compensation and attorneys’ fees. On or about 18 August 2014, defendants
moved to reconsider. On 29 August 2014, the Commission denied the motion. On 24
September 2014, defendants gave timely notice of appeal.
II. The North Carolina Supreme Court’s Mandate
Defendants argue that on remand the Commission failed to follow our Supreme
Court’s mandate by failing to make additional findings of fact on the issue of the
reasonableness of plaintiff’s delay in requesting compensation for Mr. Chandler’s
attendant care services. Defendants point out that in its mandate, our Supreme
Court referenced its holding in Mehaffey:
For the reasons stated in [Mehaffey v. Burger King,
367 N.C. 120, 749 S.E.2d 252 (2013)], the decision of the
Court of Appeals is affirmed as to the matter on appeal to
this Court, and this case is remanded to that court for
further remand to the Industrial Commission for further
proceedings not inconsistent with Mehaffey.
Id., 749 S.E.2d 278. Defendants essentially argue that because the Mehaffey case
was remanded for additional findings of fact as to the reasonableness of that
plaintiff’s delay in requesting compensation, the Supreme Court must have intended
the same for this case. See Mehaffey, 367 N.C. at 128, 749 S.E.2d at 257. We disagree,
based on the wording of the Supreme Court’s mandate, its affirmance of this Court’s
prior opinion, and the differences in the factual situations and findings made in
Mehaffey as compared to this case.
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Opinion of the Court
A. Standard of Review
We review de novo the Industrial Commission’s conclusions of law. Lewis v.
Sonoco Prods. Co., 137 N.C. App. 61, 68, 526 S.E.2d 671, 675 (2000).
B. Analysis
Our Supreme Court’s mandate is somewhat cryptic, so we must review the
mandate carefully, along with the exact procedural posture of this case and the ruling
in Mehaffey, to understand what it was directing the Commission to do. Essentially
the Supreme Court issued two directives in its mandate:
1. For the reasons stated in [Mehaffey v. Burger King,
367 N.C. 120, 749 S.E.2d 252 (2013)], the decision of the
Court of Appeals is affirmed as to the matter on appeal to
this Court, and
2. this case is remanded to that court for further
remand to the Industrial Commission for further
proceedings not inconsistent with Mehaffey.
Chandler, 367 N.C. 160-61, 749 S.E.2d 278.
i. Our Supreme Court’s Affirmance
First, the Supreme Court affirmed the prior Court of Appeals opinion, “as to
the matter on appeal to [the Supreme] Court[.]” Id., 749 S.E.2d 278 (emphasis added).
It affirmed the opinion “[f]or the reasons stated in Mehaffey[.]” Id., 749 S.E.2d 278.
Since “the matter on appeal to” the Supreme Court was affirmed, we must determine
what “matter” was “on appeal[.]” See id., 749 S.E.2d 278. In Chandler I, both plaintiff
and defendants appealed the Commission’s opinion and award. Chandler I, 217 N.C.
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App. at 418, 720 S.E.2d at 747. The plaintiff’s “sole issue” on appeal before the Court
of Appeals was “whether the Commission erred as a matter of law in denying interest
to plaintiff on the award of unpaid attendant care, accruing from the date of the initial
hearing until paid by defendants.” Id. at 423, 720 S.E.2d at 750. This Court agreed
with plaintiff and ruled that the Commission did err by failing to award interest. Id.
at 425, 720 S.E.2d at 751.
In Chandler I, defendants also appealed from the Commission’s opinion and
award and their appeal to this Court raised three issues. The first argument was
“that the Commission erred in awarding plaintiff compensation for attendant care
services” because “plaintiff was required to obtain written authority from the
Commission to recoup fees associated with the rendition of attendant care services by
Mr. Chandler” and that “they were not advised of plaintiff’s attendant care needs[.]”
Id., 720 S.E.2d at 751. We rejected this argument in Chandler I. Id. at 427, 720
S.E.2d at 752. Defendant’s second issue in Chandler I was the hourly rate of
compensation which the Commission awarded for the attendant care services, and
the third issue was the Commission’s award of attorneys’ fees to plaintiff. Id. at 427,
429, 720 S.E.2d at 752-53. We rejected both of these arguments as well, and thus
affirmed the Commission’s opinion and award except as to the issue raised in
plaintiff’s appeal, the award of interest, and we remanded to the Commission “for a
determination as to the proper award of interest to plaintiff on the unpaid portion of
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Opinion of the Court
attendant care services pursuant to the terms of N.C. Gen. Stat. § 97-86.2.” Id. at
430, 720 S.E.2d at 754.
The opinion of this Court in Chandler I was unanimous, so defendants
petitioned the Supreme Court for discretionary review on issues of “interpretation
and application of section 14 of the Workers’ Compensation medical fee schedule as
it relates to a claimant’s entitlement to attendant care services[.]” (Original in all
caps.) In their petition, defendants noted some confusion in this area of law based
upon some “inconsistent decisions by the Supreme Court and Court of Appeals” on
the issue of “whether a workers’ compensation claimant must seek pre-approval of
attendant care services before these services are compensable[.]” Defendants stated
the issue to be briefed on discretionary review as follows: “Whether the Court of
Appeals erred in affirming the Full Commission’s award of retroactive attendant care
benefits even though Plaintiff failed to seek prior approval for attendant care?” The
Supreme Court granted discretionary review. Chandler v. Atl. Scrap & Processing,
366 N.C. 232, 731 S.E.2d 141 (2012).
Before the Supreme Court, the defendants presented the following arguments:
I. THE COURT OF APPEALS ERRED IN
AFFIRMING THE FULL COMMISSION’S AWARD OF
RETROACTIVE ATTENDANT CARE BENEFITS EVEN
THOUGH PLAINTIFF FAILED TO SEEK PRIOR
APPROVAL FOR ATTENDANT CARE.
A. The Court of Appeals’ Decision Ignores the
Directive of N.C. Gen. Stat. § 97-25 Allowing
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Opinion of the Court
Defendants to Direct Medical Treatment.
B. The Court of Appeals’ Decision is Inconsistent
with the Industrial Commission’s Fee Schedule.
C. The Court of Appeals’ Decision is Inconsistent
with This Court’s Decision in [Hatchett v. Hitchcock
Corp., 240 N.C. 591, 83 S.E.2d 539 (1954)].
D. The Court of Appeals Erred in Basing its
Decision on N.C. Gen. Stat. § 97-90.
(Portion of original underlined and page numbers omitted.)
In the first clause of its mandate, the Supreme Court’s ruling upon these
arguments was as follows: “For the reasons stated in [Mehaffey v. Burger King, 367
N.C. 120, 749 S.E.2d 252 (2013)], the decision of the Court of Appeals is affirmed as
to the matter on appeal to this Court[.]” Chandler, 367 N.C. 160-61, 749 S.E.2d 278.
The “matter on appeal” was quite specifically the award of compensation for
attendant care services provided by Mr. Chandler, and defendants had challenged
the legal and factual basis for this award. In Mehaffey, the Supreme Court addressed
essentially the same arguments as to N.C. Gen. Stat. § 97-25, the fee schedule, and
the interpretation of Hatchett, and rejected those arguments; for the same reasons,
the Supreme Court affirmed the Court of Appeals’ opinion in this case. Id., 749 S.E.2d
278; Mehaffey, 367 N.C. at 124-28, 749 S.E.2d at 255-57. Thus we will now consider
the second part of the mandate, which is the remand to this Court for “further remand
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Opinion of the Court
to the Industrial Commission for further proceedings not inconsistent with Mehaffey.”
Chandler, 367 N.C. 160-61, 749 S.E.2d 278.
ii. Our Supreme Court’s Remand
In Mehaffey, on 13 August 2007, the plaintiff suffered a compensable injury to
his left knee while working as a restaurant manager. Mehaffey, 367 N.C. at 121, 749
S.E.2d at 253. The Supreme Court summarized plaintiff’s medical history as follows:
As a result of his injury, plaintiff underwent a “left knee
arthroscopy with a partial medial meniscectomy” at
Transylvania Community Hospital. Plaintiff’s condition
failed to improve after surgery, and he ultimately
developed “reflex sympathetic dystrophy” (“RSD”). Despite
undergoing a number of additional procedures, plaintiff
continued to suffer pain. Plaintiff eventually was
diagnosed with depression related to the injury and
resulting RSD, and his psychiatrist concluded that it was
unlikely plaintiff’s “mood would much improve until his
pain is under better control.”
Likely due to pain, plaintiff increasingly attempted
to limit his movements following his diagnosis of RSD. By
8 April 2008, plaintiff was using “an assistive device” to
move or walk around. On 21 April 2008, John Stringfield,
M.D., plaintiff’s family physician, prescribed a mobility
scooter for plaintiff, and medical records show that by 20
June 2008, plaintiff was using a walker. On 18 December
2008, plaintiff requested a prescription for a hospital bed
from Eugene Mironer, M.D., a pain management specialist
with Carolina Center for Advanced Management of Pain,
to whom plaintiff had been referred as a result of his
diagnosis with RSD. Dr. Mironer’s office declined to
recommend a hospital bed, instructing plaintiff to see his
family physician instead. That same day plaintiff visited
his family physician, Dr. Stringfield, who prescribed both
a hospital bed and a motorized wheelchair.
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Id., 749 S.E.2d at 253 (brackets omitted). Beginning in March 2009, a nurse
consultant and other individuals recommended that the plaintiff receive attendant
care services. Id. at 122, 749 S.E.2d at 254. On 6 April 2009, the plaintiff requested
a hearing to determine the defendants’ liability for these attendant care services.
Mehaffey v. Burger King, 217 N.C. App. 318, 320, 718 S.E.2d 720, 722 (2011), rev’d in
part, 367 N.C. 120, 749 S.E.2d 252 (2013). The Commission compensated the
plaintiff’s wife for attendant care services that she provided beginning 15 November
2007, the date of the plaintiff’s RSD diagnosis. Id. at 320-21, 718 S.E.2d at 722. In
other words, the Commission decided to award compensation for attendant care
services that began more than one year before attendant care services were
recommended by a medical professional or the plaintiff made a request for such
compensation. Id., 718 S.E.2d at 722.
Our Supreme Court held that the Commission had authority to award
retroactive compensation for the plaintiff’s wife’s attendant care services. Mehaffey,
367 N.C. at 127, 749 S.E.2d at 256-57. But the Court did not affirm the Commission’s
opinion and award; rather, it remanded the case for additional findings of fact and
conclusions of law as to the issue of the reasonableness of the plaintiff’s delay in
requesting compensation for attendant care services:
Nonetheless, we are unable to affirm the
Commission’s award of compensation for Mrs. Mehaffey’s
past attendant care services. As plaintiff concedes, to
receive compensation for medical services, an injured
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Opinion of the Court
worker is required to obtain approval from the Commission
within a reasonable time after he selects a medical
provider. Schofield v. Tea Co., 299 N.C. 582, 593, 264
S.E.2d 56, 63 (1980). If plaintiff did not seek approval
within a reasonable time, he is not entitled to
reimbursement. Here, defendants have challenged the
reasonableness of the timing of plaintiff’s request, and the
opinion and award filed by the Full Commission does not
contain the required findings and conclusions on this issue.
Accordingly, we remand to the Court of Appeals for further
remand to the Commission to make the necessary findings
of fact and conclusions of law on this issue.
Id. at 128, 749 S.E.2d at 257. The Court based its decision to remand on Schofield.
Id., 749 S.E.2d at 257.
In Schofield, the plaintiff suffered from a medical emergency late in the
evening when he was away from home, and he sought the services of a physician who
had not been selected by the defendant. Schofield, 299 N.C. at 588-89, 264 S.E.2d at
61. Even after the emergency was over, this physician continued to treat the
defendant for seventeen months, but “neither he nor plaintiff made any attempt to
notify defendant or the Commission.” Id. at 592, 264 S.E.2d at 63. Our Supreme
Court held that the plaintiff did not need prior approval from the Commission to
procure his own doctor. Id., 264 S.E.2d at 63. The Court relied on N.C. Gen. Stat. §
97-25 (1979), which included the proviso: “Provided, however, if he so desires, an
injured employee may select a physician of his own choosing to attend, prescribe and
assume the care and charge of his case, subject to the approval of the Industrial
Commission.” Id. at 591-92, 264 S.E.2d at 62-63 (quoting N.C. Gen. Stat. § 97-25
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(1979)). But the Court rejected the plaintiff’s argument that he could indefinitely
delay giving notice to the defendant or the Commission:
The Court of Appeals interpreted [N.C. Gen. Stat. §
97-25 (1979)] as imposing no time limits whatsoever on the
giving of notice or seeking of approval by an employee who
changes physicians. Such a reading of the statute suggests
that an employee may wait an indefinite period of time
before obtaining authorization and approval from the
Industrial Commission. However, it is inconceivable to us
that the legislature intended to authorize an employee in
this situation to give notice at his whim. Moreover,
construing the statute as plaintiff urges would work a
burden and an injustice on all parties involved. In fairness
to everyone concerned, including the injured employee and
his doctor, an employer who is subject to liability for
medical costs ought to be apprised of the fact, as soon as is
practicable, that the employee is undergoing treatment and
that he has procured a doctor of his own choosing to
administer the treatment.
We therefore construe the statute to require an
employee to obtain approval of the Commission within a
reasonable time after he has selected a physician of his own
choosing to assume treatment. In this case, plaintiff
procured the services of Dr. Klenner during an emergency.
Upon termination of the emergency, plaintiff should have
given prompt notice that he was electing to have Dr.
Klenner assume further treatment. Furthermore, as we
construe the statute, plaintiff was required to obtain
approval of the Commission within a reasonable time. We
so hold.
Id. at 592-93, 264 S.E.2d at 63 (emphasis added). In other words, the Court held that
a plaintiff must obtain the Commission’s approval “within a reasonable time” after
he has selected a new physician without the employer’s knowledge, and the Court
based its holding on the policy view that an employer should be seasonably notified
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Opinion of the Court
when an injured employee selects a new physician since it is responsible for the
employee’s medical expenses. Id., 264 S.E.2d at 63. The Court remanded the case to
the Commission to make findings of fact as to the reasonableness of the plaintiff’s
delay in seeking approval from the Commission. Id. at 594, 264 S.E.2d at 64.
The factual situation as found by the Commission here is quite different from
Mehaffey and Schofield. In those cases, the plaintiffs had selected care providers
without the participation or knowledge of their employers or workers’ compensation
carriers. Id. at 592, 264 S.E.2d at 63; Mehaffey, 217 N.C. App. at 319-20, 718 S.E.2d
at 722. Neither of them suffered from any cognitive impairment requiring the
appointment of a guardian or a guardian ad litem. Mehaffey, 367 N.C. at 121, 749
S.E.2d at 253; Schofield, 299 N.C. at 588-89, 264 S.E.2d at 61. Additionally, in
Mehaffey, two doctors indicated that the plaintiff would “derive greater benefit if he
attempted to move under his own strength, which would force him to rehabilitate his
injury.” Mehaffey, 367 N.C. at 122, 749 S.E.2d at 253-54. But in this case, defendants
directed and provided all of the medical care for plaintiff, and the physicians selected
by defendants made the determination that plaintiff needed full-time attendant care.
Defendants were aware of this determination essentially as soon as it was made, since
Nurse Wilson, Liberty Mutual’s designated medical case manager, was fully and
promptly advised of plaintiff’s deteriorating situation and consequent need for
constant attendant care services. She was also aware that plaintiff’s husband was,
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Opinion of the Court
of necessity, providing the attendant care services. In addition, neither a guardian
of plaintiff’s person nor a guardian ad litem had been appointed until after plaintiff
requested compensation for Mr. Chandler’s attendant care services. Moreover, there
was never any difference of opinion among the medical providers about plaintiff’s
severe cognitive impairment and consequent need for attendant care services.
In its 25 February 2010 opinion and award, the Commission made the
following findings of fact, which address the issue of the reasonableness of plaintiff’s
delay in requesting compensation for attendant care services and which defendants
do not challenge on appeal:
12. On December 23, 2003 Dr. Templon also recommended
plaintiff see a neurologist. Defendants arranged for
plaintiff to see neurologist Carlo P. Yuson in Winston-
Salem, NC.
13. On January 14, 2004, plaintiff saw Dr. Yuson,
complaining primarily of frequent headaches and memory
problems since the fall. Dr. Yuson diagnosed, and the Full
Commission so finds, that plaintiff suffers from post-
concussive syndrome from the fall, along with depression
secondary to her fall.
14. Plaintiff saw Dr. Yuson in March, April and May 2004.
Plaintiff continued to have the following symptoms due to
her closed head injury from the fall: severe headaches,
memory problems, dizziness, crying spells, insomnia,
cognitive problems, and depression. On April 6, 2004, Dr.
Yuson recommended that plaintiff be re-evaluated
concerning her cognitive functioning and memory problems.
15. On May 3, 2004 carrier Liberty Mutual assigned its
nurse Bonnie Wilson to provide medical case management
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Opinion of the Court
services in plaintiff’s claim. Nurse Wilson arranged for
plaintiff to be reevaluated by Dr. Naylor on June 28, 2004.
16. On June 28, 2004 Dr. Naylor re-evaluated plaintiff’s
cognitive functioning and memory. Plaintiff was tearful
and clinging to her husband. Testing revealed, and the
Full Commission finds, as follows: (i) plaintiff’s intellectual
functioning had fallen from the borderline to the impaired
range; (ii) plaintiff’s memory function revealed a sharp
decline into the impaired range in all areas—verbal,
nonverbal, structured, and unstructured; (iii) plaintiff had
a significant compromise in her conversational speech, that
is, plaintiff only spoke when spoken to, her responses were
short and often fragmented and confused, and she had
difficulty responding to questions. All of the above
conditions are due to plaintiff’s closed head injury from her
fall. Plaintiff’s additional symptoms were as follows and
are also due to her closed head injury from her fall: 1)
inability to answer questions; 2) fearful and reliant on her
husband; 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, e.g., puts a fitted sheet on
top of a flat sheet when trying to make a bed; 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
the foregoing test results and plaintiff’s symptoms indicate
that as of June 28, 2004, plaintiff suffered from severe and
global cognitive deficits in higher cortical functioning.
17. Based on the totality of the evidence of record, the Full
Commission finds that plaintiff’s above listed conditions
and symptoms and her severe and global cognitive deficits
in higher cortical functioning are all a result of her closed
head injury or traumatic brain injury due to her August 11,
2003 work-related fall.
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Opinion of the Court
18. On July 20, 2004, Dr. Naylor gave her written
evaluation report concerning plaintiff’s severe cognitive and
memory impairments to carrier’s nurse Bonnie Wilson and
also discussed the report and its conclusions with her. Dr.
Naylor informed Ms. Wilson that plaintiff’s cognitive and
mental condition had greatly deteriorated since prior
testing in early December 2003, and that plaintiff was no
longer capable of caring for herself and needed constant
supervision which out of necessity was being provided by
her husband.
19. By at least July 20, 2004, the carrier was well aware
that plaintiff required constant attendant care services, and
that plaintiff’s husband was providing constant attendant
care services to plaintiff without any compensation for his
services.
20. Beginning on at least June 28, 2004, and continuing,
plaintiff has been incapable of being alone and has been
unable to perform most activities of daily living without
assistance from her husband. She has required constant
supervision and attendant care services, that is, 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, all due to her traumatic brain injury
from her fall.
21. Dr. Yuson has continued to treat plaintiff for her severe
headache condition, as well as her insomnia, emotional
state, and depression resulting from her accident, with
various medications which have provided some relief.
22. By on or about August 23, 2004 plaintiff reached
maximum medical improvement in relation to her
traumatic brain injury resulting from her fall.
23. On September 21, 2004 defendants completed I.C.
Form 60 “Employer’s Admission of Employee’s Right to
Compensation Pursuant to N.C. Gen. Stat. § 97-18(b)”
admitting plaintiff’s right to compensation for her August
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Opinion of the Court
11, 2003 injury by accident.
24. On October 27, 2004, plaintiff saw Dr. Yuson, with Ms.
Wilson in attendance. By this date, Dr. Yuson notified Ms.
Wilson that, in his opinion, plaintiff would never get any
better mentally than she was as of August 23, 2004. At
this meeting Dr. Yuson discussed Dr. Naylor’s July 20,
2004 report with Ms. Wilson, including that plaintiff
required constant attendant care services due to her
cognitive and emotional impairments resulting from her
fall.
25. On October 27, 2004, the carrier was well aware that
plaintiff required constant attendant care services as
provided by her husband due to her traumatic brain injury
resulting from her August 11, 2003 fall. Defendants elected
not to secure attendant [care] services or pay plaintiff’s
husband for the attendant care services he provided
plaintiff.
26. On November 4, 2004, Ms. Wilson wrote Dr. Yuson,
explaining that carrier’s claim representative had
requested that Dr. Yuson provide his written opinion
concerning [plaintiff’s] permanent work restrictions. Since
at least May 2004, one of Ms. Wilson’s primary functions
was to assist plaintiff in receiving the medical treatment
recommended by Dr. Yuson.
27. On December 1, 2004, Dr. Yuson responded to Nurse
Wilson’s November 4, 2004 correspondence with the
following:
“This in reply to your inquiry regarding
[plaintiff’s] disability rating.
The biggest problem that [plaintiff] still is
experiencing is related to the cognitive and
emotional impairment which is adequately
documented in her previous
neuropsychological evaluations. Based on
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Opinion of the Court
these, she has persisting moderate to severe
emotional impairment even under minimal
stress as well as an impairment of complex
integrated higher cortical functioning
necessitating constant supervision and
direction on a daily basis. In light of above
difficulties, the AMA disability rating list[s] a
disability rating of 80% permanent disability.
I hope that this . . . information is helpful in
her further evaluation.”
28. By early December 2004, Dr. Yuson again notified
defendant Liberty Mutual that plaintiff required constant
supervision due to her cognitive and emotional
impairments resulting from her brain injury due to her fall.
29. In the period since at least July 20, 2004, Liberty
Mutual made no effort whatsoever to provide plaintiff with
the attendant care services she required due to her brain
injury.
....
34. On August 27, 2008, plaintiff filed a motion seeking an
order compelling defendants to pay plaintiff’s husband,
Lester Chandler, for providing attendant care services to
plaintiff for the period beginning July 20, 2004, forward.
This request was amended in the Pre-trial Agreement to be
for the period beginning June 28, 2004, the date Dr. Naylor
reevaluated plaintiff’s cognitive and memory functioning.
Plaintiff also sought an award of permanent total disability
benefits.
35. Plaintiff’s husband Lester Chandler has provided the
required constant attendant care services to plaintiff for
the period beginning at least on June 28, 2004, and
continuously thereafter without any compensation for his
services.
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Opinion of the Court
....
43. On December 10, 2008 the Clerk of Court for Stokes
County, N.C. determined that plaintiff was incompetent
and appointed Lester Chandler to be her guardian.
(Emphasis added.)
In April 2004, defendants’ selected physician, Dr. Yuson, recommended that
another physician reevaluate plaintiff’s cognitive functioning and memory problems.
Nurse Wilson, whom Liberty Mutual selected to provide medical case managements
services and assist plaintiff in receiving any medical treatment recommended by Dr.
Yuson, arranged for Dr. Naylor to conduct this reevaluation on 28 June 2004. Based
on this 28 June 2004 reevaluation, Dr. Naylor determined that plaintiff required
constant attendant care services, which out of necessity Mr. Chandler was providing.
On 20 July 2004, Dr. Naylor discussed this conclusion with Nurse Wilson. The
Commission thus found that less than a month after 28 June 2004, the beginning of
the period for which plaintiff requests compensation for attendant care services,
Liberty Mutual had actual notice that plaintiff required constant attendant cares
services and that Mr. Chandler was providing those services without any
compensation. Liberty Mutual neither elected to secure a different provider, nor did
it compensate Mr. Chandler for these services. Neither a guardian of plaintiff’s
person nor a guardian ad litem had been appointed until after plaintiff requested
compensation for Mr. Chandler’s attendant care services. We also note that in
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Opinion of the Court
September 2004, defendants filed Form 60 admitting plaintiff’s right to compensation
for her August 2003 injury.
In addition, in defendants’ first appeal, this Court arrived at this same
conclusion that “defendants had notice of plaintiff’s required attendant care services,
which out of necessity, were being provided by Mr. Chandler” and affirmed the
Commission’s award of compensation to Mr. Chandler for attendant care services.
Chandler, 217 N.C. App. at 427, 720 S.E.2d at 752. We further note that our Supreme
Court affirmed per curiam the Court’s decision. Chandler, 367 N.C. 160-61, 749
S.E.2d 278.
Defendants continue to argue, as they have twice before the Industrial
Commission, previously before this Court in Chandler I, and before the Supreme
Court, that plaintiff’s delay in formally requesting attendant care services, until 27
August 2008, over four years after 28 June 2004, was unreasonable. They argue that
in light of Mehaffey, the Commission needed to make a finding of fact as to whether
this delay was reasonable. See Mehaffey, 367 N.C. at 128, 749 S.E.2d at 257. But the
Supreme Court’s mandate did not say this; it said “[f]or the reasons stated in
[Mehaffey v. Burger King, 367 N.C. 120, 749 S.E.2d 252 (2013)], the decision of the
Court of Appeals is affirmed as to the matter on appeal to this Court[.]” Chandler,
367 N.C. 160-61, 749 S.E.2d 278. This Court and the Supreme Court have already
rejected defendants’ argument. Id., 749 S.E.2d 278; Chandler I, 217 N.C. App. at 427,
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Opinion of the Court
720 S.E.2d at 752. The Supreme Court remanded the case to the Commission only to
enter an award of interest on the unpaid balance of the attendant care compensation
and to determine the amount of attorneys’ fees to be awarded to plaintiff for defending
against defendants’ first appeal, and on remand the Commission properly addressed
both those issues.
The Mehaffey Court based its holding on Schofield, and the Schofield Court, in
turn, based its holding on the policy view that an employer should be seasonably
notified when an injured employee seeks new or different medical treatment since it
is responsible for the employee’s medical expenses. Mehaffey, 367 N.C. at 128, 749
S.E.2d at 257; Schofield, 299 N.C. at 592-93, 264 S.E.2d at 63. In Schofield, the
plaintiff did not make any attempt to notify the defendant or the Commission of his
selection of a new physician for a period of seventeen months. Schofield, 299 N.C. at
592, 264 S.E.2d at 63. Similarly, nothing in Mehaffey suggests that the defendants
were aware of the plaintiff’s need for attendant care services or that his wife had been
providing those services until the plaintiff requested compensation more than one
year after the beginning of the period for which he requested compensation. See
Mehaffey, 367 N.C. at 121-23, 749 S.E.2d at 253-54; Mehaffey, 217 N.C. App. at 320,
718 S.E.2d at 722. Additionally, medical professionals did not begin recommending
that the plaintiff receive attendant care services until more than one year after the
beginning of the plaintiff’s requested period, and two doctors indicated that the
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Opinion of the Court
plaintiff would “derive greater benefit if he attempted to move under his own
strength, which would force him to rehabilitate his injury.” Mehaffey, 367 N.C. at
122-23, 749 S.E.2d at 253-54. Because the Commission had not already made
findings on this issue, the Supreme Court remanded for additional findings of fact as
to the delay in requesting compensation for attendant care services. Id. at 128, 749
S.E.2d at 257.
In contrast, here, both Dr. Yuson and Dr. Naylor were selected either by
defendants or by Nurse Wilson, Liberty Mutual’s selected medical case manager.
Nurse Wilson arranged for the 28 June 2004 evaluation in which the severity of
plaintiff’s brain injury and plaintiff’s consequent need for constant attendant care
services became abundantly evident. The physicians’ opinions on plaintiff’s condition
and need for constant attendant care services were unanimous. And it is not
surprising that plaintiff herself might fail to promptly request attendant care
services, since her mental functioning was at the level of a four-year-old child and
neither a guardian of plaintiff’s person nor a guardian ad litem were appointed until
December 2008, four months after plaintiff requested compensation. The
Commission found that Liberty Mutual had actual notice less than one month after
the 28 June 2004 evaluation, which is the beginning of the period for which plaintiff
requests compensation. Despite plaintiff’s severe cognitive disability and need for
constant attendant care, Liberty Mutual made no efforts to secure a different
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Opinion of the Court
provider, nor did it compensate Mr. Chandler for these services. The policy concern
expressed in Schofield is entirely absent here, because within a matter of weeks,
defendants had actual notice of Mr. Chandler’s attendant care services and chose not
to seek alternative treatment.
Defendants essentially request that we impose a “magic words” requirement,
such that to award compensation to Mr. Chandler, the Commission must state the
following in its opinion and award: “Plaintiff’s delay in requesting compensation was
reasonable because defendants had prompt actual notice of Mr. Chandler’s attendant
care services from both her treating physician and another physician, that they were
further aware that plaintiff’s mental functioning was at the level of a four-year-old
child, and they chose not to offer alternative attendant care services.” We do not
believe that the Supreme Court’s ruling in Mehaffey imposes any such requirement.
The Commission’s extensive findings of fact, quoted above, demonstrate that the
Commission has already carefully analyzed this issue and concluded in favor of
plaintiff. Accordingly, we hold that the Commission’s decision on remand not to make
additional findings of fact on this issue was entirely consistent with Mehaffey. See
Chandler, 367 N.C. 160-61, 749 S.E.2d 278. This holding is based narrowly on the
facts of this case and is in accord with the holding in Mehaffey that “an injured worker
is required to obtain approval from the Commission within a reasonable time after
he selects a medical provider.” Mehaffey, 367 N.C. at 128, 749 S.E.2d at 257 (citing
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Opinion of the Court
Schofield, 299 N.C. at 593, 264 S.E.2d at 63). “If plaintiff did not seek approval within
a reasonable time, he is not entitled to reimbursement.” Id., 749 S.E.2d at 257. We
therefore hold that the Commission properly followed our Supreme Court’s mandate.
III. Motion for Attorneys’ Fees
Under N.C. Gen. Stat. § 97-88, plaintiff moves that we order defendants to pay
her attorneys’ fees incurred in defending against this appeal. N.C. Gen. Stat. § 97-
88 provides:
If the Industrial Commission at a hearing on review
or any court before which any proceedings are brought on
appeal under this Article, shall find that such hearing or
proceedings were brought by the insurer and the
Commission or court by its decision orders the insurer to
make, or to continue payments of benefits, including
compensation for medical expenses, to the injured
employee, the Commission or court may further order that
the cost to the injured employee of such hearing or
proceedings including therein reasonable attorney’s fee to
be determined by the Commission shall be paid by the
insurer as a part of the bill of costs.
N.C. Gen. Stat. § 97-88 (2013). In Cox v. City of Winston-Salem, this Court
interpreted this statute:
The Commission or a reviewing court may award an
injured employee attorney’s fees under section 97-88, if (1)
the insurer has appealed a decision to the [F]ull
Commission or to any court, and (2) on appeal, the
Commission or court has ordered the insurer to make, or
continue making, payments of benefits to the employee.
Section 97-88 permits the Full Commission or an appellate
court to award fees and costs based on an insurer’s
unsuccessful appeal. Section 97-88 does not require that
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Opinion of the Court
the appeal be brought without reasonable ground for
plaintiff to be entitled to attorney’s fees.
Cox, 157 N.C. App. 228, 237, 578 S.E.2d 669, 676 (2003) (citations, quotation marks,
brackets, and ellipsis omitted). In determining whether to award attorneys’ fees
under this statute, we must exercise our discretion. See Brown v. Public Works
Comm., 122 N.C. App. 473, 477, 470 S.E.2d 352, 354 (1996).
Because defendants have unsuccessfully appealed and we affirm the
Commission’s decision to award compensation to Mr. Chandler, the statutory
requirements of N.C. Gen. Stat. § 97-88 have been satisfied. See N.C. Gen. Stat. §
97-88; Cox, 157 N.C. App. at 237, 578 S.E.2d at 676. We note that on defendants’ first
appeal, this Court awarded plaintiff attorneys’ fees incurred in defending against that
appeal under N.C. Gen. Stat. § 97-88. See Chandler, 217 N.C. App. at 418, 720 S.E.2d
at 747. The Supreme Court affirmed per curiam that opinion. See Chandler, 367
N.C. 160-61, 749 S.E.2d 278. In our discretion, we again grant plaintiff’s motion for
attorneys’ fees and remand the case to the Commission to determine a reasonable
amount for appellate attorneys’ fees. See Brown, 122 N.C. App. at 477, 470 S.E.2d at
354.
IV. Conclusion
For the foregoing reasons, we affirm the Commission’s opinion and award. We
also grant plaintiff’s motion for attorneys’ fees and remand the case to the
Commission to determine a reasonable amount for appellate attorneys’ fees.
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Opinion of the Court
AFFIRMED AND REMANDED.
Chief Judge MCGEE and Judge TYSON concur.
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