Attendant Care in Post-Reform North Carolina Workers’ Compensation Claims
In recent years, attendant care provided under North Carolina’s Workers’ Compensation Act has gotten quite a bit of attention in the appellate courts and at the General Assembly. In particular, the Court of Appeals’ 2011 decision in Shackleton v. Southern Flooring & Acoustical Company presented a challenge for employers. Reversing the Commission’s denial of an attendant care claim by the injured worker’s spouse, Shackleton adopted a “flexible case-by-case approach,” which allowed the Commission to consider a wide variety of evidence, including: “a prescription or report of a healthcare provider; the testimony or a statement of a physician, nurse, or life care planner; the testimony of the claimant or the claimant’s family member; or the very nature of the injury.”
Shackleton was seen as a departure from existing case law because attendant care claims could be proven with only the testimony of the claimant or the claimant’s family, or the nature of the injury itself. The decision also suggested that there was no time limit on when attendant care services could be requested, causing concern for significant retroactive attendant care awards. Partly in response to Shackleton, the General Assembly revised N.C.G.S. § 97-2 (19) in 2011 to require that attendant care be, “prescribed by a health care provider authorized by the employer or subsequently by the Commission[.]” This revision was intended to put more parameters on when attendant care is provided, by requiring a prescription.
Recent decisions by the Court of Appeals, in Thompson v. International Paper Co. and Reed v. Carolina Holdings, Wolseley Mgmt., reveal how the courts may treat attendant care going forward, but leave many questions for employers.
On February 23, 2012, Darrell Thompson suffered severe burns at work, required three major skin graft surgeries and received treatment at the UNC Burn Center. Mr. Thompson’s doctor testified following a hearing that Mr. Thompson would require some level of attendant care the rest of his life, but confirmed that he had never written a prescription for attendant care. Instead, the doctor testified that he left these decisions to the hospital social worker who wrote that Ms. Thompson would provide Mr. Thompson’s “attendant and wound care.”
Ms. Thompson was awarded attendant care services by the Deputy Commissioner, and the Full Commission affirmed, but terminated attendant care services in 2012. On January 17, 2017, in Thompson v. International Paper Co., the Court of Appeals reversed the termination of attendant care, holding that a written prescription for attendant care services is not required under N.C.G.S. § 97-2(19) and a verbal prescription can suffice. The Court acknowledged the Commission cannot rely solely on lay testimony to award for attendant care, but concluded that Mr. Thompson’s social worker’s letter was a “written expression” of his physician’s verbal directive for attendant care.
Christopher Reed sustained a traumatic brain injury in 1998, which Defendants accepted as compensable. On March 18, 2011, Mr. Reed filed a hearing request seeking attendant care. Based on lay and medical testimony, the Deputy Commissioner awarded attendant care reimbursement to Mr. Reed’s mother from the date of injury to present and ongoing.
The Full Commission denied Mr. Reed’s request for attendant care before the hearing request, because he did not seek approval of attendant care services or provide defendants with notice of this request until the hearing request. Attendant care was awarded from March 18, 2011, and ongoing.
On February 7, 2017, in Reed v. Carolina Holdings, Wolseley Mgmt., the Court of Appeals affirmed, relying on hearing testimony by Mr. Reed’s mother and post-hearing deposition testimony by Mr. Reed’s doctor. The Court cited Shackleton, stating the Commission can rely on, “a prescription or report of a healthcare provider; the testimony or a statement of a physician, nurse, or life care planner; the testimony of the claimant or the claimant’s family member; or the very nature of the injury[,]” when awarding attendant care.”
Thompson and Reed demonstrate the tension between the 2011 reforms to § 97-2 (19) and the Court of Appeals’ prior decision in Shackleton. Thompson acknowledges that § 97-2 (19) rejects the flexible case-by-case approach announced in Shackleton. However, in Reed, the Court did not discuss and it does not appear the parties argued that § 97-2 (19) changes the law. Also, both cases suggest that a written prescription is not necessary for attendant care and that the Commission may rely on lay and physician testimony to establish that ongoing attendant care is necessary.
Until the appellate courts clarify the application of § 97-2 (19), employers and insurers will continue to face uncertainty. Where attendant care issues arise, or are anticipated, employers should consult with defense counsel to proactively develop strategies to reasonably resolve these issues.