Case Law Update: Attendant Care
Thompson v. International Paper Co.
On February 23, 2012, Darrell Thompson was involved in an at-work accident and suffered severe burns that covered more than 23% of his body, mostly to his left shoulder and arm. Following the injury, Mr. Thompson underwent three major skin graft surgeries and received treatment from several providers at the UNC Burn Center. During this time, Mr. Thompson’s wife took leave from her job as a social worker to assist with his care. Defendants paid for Ms. Thompson’s room and board while Mr. Thompson recovered at the Burn Center, but she was not compensated for any care or services she provided. Ms. Thompson testified at the hearing that, after Mr. Thompson’s discharge from the Burn Center, she spent almost all of her time each day caring for him. Over time, Mr. Thompson recovered and regained his independence, but had not yet returned to all his pre-injury activities and had not returned to work.
On June 1, 2012, Ms. Thompson returned to work but arranged an alternate work schedule so she could continue to care for her husband. Dr. Hultman began treating Mr. Thompson in November 2012. He testified during his deposition that some level of attendant care would be required for the rest of Mr. Thompson’s life, but he also confirmed that he had never provided written a prescription for attendant care. Ms. Thompson testified that, after 2012, she spent approximately 30 minutes per day to assist with compression garments and to apply lotion. In addition, she indicated she spent approximately 10 minutes per day to apply creams and an additional 15 to 30 minutes per day to attend to Mr. Thompson’s wounds.
Defendants filed a Form 60 accepting Mr. Thompson’s claim as compensable, but denied that Ms. Thompson was entitled to reimbursement for attendant care services. The Deputy Commissioner issued an Opinion and Award finding that attendant care was medically necessary and compensable, and that Ms. Thompson was entitled to reimbursement for attendant care services. Defendants appealed and the Full Commission affirmed that Ms. Thompson was entitled to reimbursement for prior attendant care services starting April 12, 2012 when Mr. Thompson was discharged from the Burn Center, but denied her entitlement to reimbursement after December 31, 2012. Mr. Thompson appealed to the Court of Appeals.
On January 17, 2017, in Thompson v. International Paper Co., the Court reversed and remanded. The Court reviewed N.C.G.S. § 97-2(19) and held that a written prescription for attendant care services is not required in order for these services to be found compensable. The Court looked at the North Carolina Pharmacy Practice Act to locate a definition of “prescription order,” and concluded that a prescription order included both a written and verbal order. Though the Court acknowledged the Commission cannot rely solely on the lay testimony of the claimant and his family member(s) to support an award for attendant care, it cited the doctor’s testimony that Mr. Thompson would continue to require attendant care for his injuries. The Court then held that Mr. Thompson’s doctor had provided a verbal order for attendant care after his release from the hospital and on an ongoing basis. Therefore, the December 31, 2012 date for termination of attendant care services was arbitrary, and the Court instead held that Mr. Thompson would require some level of attendant care services for the rest of his life.
Risk Handling Hint: Thompson is clear that a written prescription for attendant care is not needed. It also suggests that some minimal level of pre-hearing evidence, along with post-hearing deposition testimony from the injured worker’s doctors, can be enough to establish that ongoing attendant care is necessary.
Reed v. Carolina Holdings, Wolseley Mgmt.
Christopher Reed sustained a traumatic brain injury and injuries to his shoulder, back and other body parts on June 26, 1998 when a stack of building supplies fell on him. Defendants accepted his claim as compensable and provided indemnity and medical benefits. Mr. Reed also later received psychological treatment as a part of his claim. On March 18, 2011, Mr. Reed filed a Form 33 hearing request seeking attendant care compensation. Based on the lay and medical testimony, the Deputy Commissioner concluded attendant care was necessary since the date of Mr. Reed’s accident and awarded attendant care reimbursement to Mr. Reed’s mother from the date of injury to present and ongoing. The Deputy Commissioner denied Mr. Reed’s attorney’s request to deduct 25% from the award of attendant care compensation as an attorney’s fee.
Both parties appealed to the Full Commission. The Full Commission received additional evidence regarding Mr. Reed’s need for attendant care, and, thereafter, entered an Opinion and Award denying Mr. Reed’s request for attendant care between March 19, 2007 and March 17, 2011, but awarding attendant care from March 18, 2011 and ongoing. In reaching its conclusions, the Full Commission emphasized that defendants had no actual or written notice that Mr. Reed needed attendant care services due to his compensable injury and Mr. Reed did not seek approval of attendant care services until he filed a Form 33 on March 18, 2011. Defendants appealed to the Court of Appeals.
On February 7, 2017, in Reed v. Carolina Holdings, Wolseley Mgmt., the Court ultimately upheld the Commission’s award of attendant care. The Court relied on the hearing testimony of Mr. Reed’s mother and the post-hearing deposition testimony of Mr. Reed’s doctor to find that attendant care was medically necessary beginning the date of Mr. Reed’s hearing request, putting defendants on notice of his request for attendant care. In reaching its holding, the Court relied on its prior opinion from early 2011, Shackleton v. Southern Flooring & Acoustical Company, which was decided before the General Assembly reformed the Workers Compensation Act in 2011 and modified the requirements to demonstrate that attendant care was compensable. Citing Shackleton, the Court noted that competent evidence on which the Commission can rely on when ordering attendant care includes, “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.”
Risk Handling Hint: As with Thompson, the Court’s decision in Reed demonstrates the tension between previous precedent regarding what is required to prove the medical necessity of attendant care and the new prerequisites outlined in the changes to N.C.G.S. § 97-2 (19) enacted by the General Assembly in mid-2011. Given the lack of clarity from the courts on this issue, employers and carriers are encouraged to obtain early clarification regarding the need for attendant care services and extent of such services to help mitigate exposure.