Workers’ Compensation – Unpaid Attendant Care Services – Interest

Chandler v. Atlantic Scrap & Processing. (Lawyers Weekly No. 11-07-1276, 25 pp.) (Douglas McCullough, J.) Appealed from the Industrial Commission. N.C. App. Click here for the full-text opinion.

Holding: An injured plaintiff was entitled to interest on the unpaid portion of attendant care services provided to her by her husband under G.S. § 97-86.2.

Background

Plaintiff began working for Atlantic Scrap, a metal recycling facility, in 1994. She was hired to clean Atlantic Scrap’s three buildings.

On Aug. 11, 2003, 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. She 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 fall.

In October 2003, plaintiff’s husband, 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. In November 2003, Dr. Templon diagnosed plaintiff as suffering from cognitive impairments secondary to post-concussive syndrome. On Dec. 23, 2003, Dr. Templon recommended that plaintiff also see a neurologist.

Plaintiff’s test results and symptoms indicated that as of June 28, 2004, she suffered from severe and global cognitive deficits in higher cortical functioning, all as a result of her Aug. 11, 2003 fall at work.

Beginning on or before June 28, 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/seven-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 June 28, 2004 and continuously thereafter, without any compensation for his services.

On Aug. 27, 2008, plaintiff filed a Form 33 Request that Claim be Assigned for Hearing, seeking “payment of attendant care services by Mr. Chandler beginning July 20, 2004 going forward,” and an award of permanent total disability. On April 12, 2009, defendants filed a Form 33R response denying plaintiff’s claim.

On Aug. 10, 2009, the commissioner concluded that plaintiff’s injuries were caused by her August 2003 fall at work; that she is permanently totally disabled; and that she is entitled to have defendants provide all medical compensation due to her accident, including the constant around-the-clock attendant care services provided by Mr. Chandler for the period beginning June 28, 2004 and the services set out in the life care plan.

The commissioner also awarded Mr. Chandler $15 per hour for the constant attendant care services he has provided to plaintiff for the period beginning June 28, 2004 and each day thereafter. On Aug. 25, 2009, defendants appealed to the full Commission. On Nov. 20, 2009, plaintiff moved the Commission to award interest on the past due attendant care pursuant to G.S. § 97- 86.2 , to be paid by defendants directly to Mr. Chandler.

On Feb. 25, 2010, the Commission affirmed the commissioner’s opinion and award, but changed the hourly rate for attendant care services payable to Mr. Chandler to $11 per hour for 15 hours per day, rather than $15 per hour for 24 hours per day. The Commission declined to award interest to Mr. Chandler “in its discretion.” On Feb. 26, 2010, plaintiff filed a motion to amend the Commission’s Feb. 25, 2010 opinion and award, this time seeking an order of mandatory payment of interest to plaintiff, instead of to Mr. Chandler, pursuant to G.S. § 97-86.2. The Commission declined to award plaintiff the interest. Both parties appealed.

Discussion

The language of G.S. § 97-86.2 confers no “degree of discretion” on the Commission in determining an interest award “given the presence of the circumstances delineated in the relevant statutory language,” under Puckett v. Norandal USA, Inc.,No. COA10-805 (N.C. Ct. App. May 3, 2011). Moreover, in Palmer v. Jackson, 161 N.C. App. 642, 590 S.E.2d 275 (2003), this court upheld an award of interest on a plaintiff’s outstanding medical expenses in the form of attendant care services where the Commission awarded the benefits directly to the family members who were taking care of the plaintiff, instead of to the plaintiff himself.

Here, after the initial hearing on April 13, 2009, the commissioner awarded plaintiff the cost of attendant care services, from which defendants appealed to the full Commission. The Commission likewise awarded plaintiff the costs of attendant care services, although the Commission modified the award amount. According to the statutory mandate, the Commission was required to determine an award of interest to plaintiff on the amount of unpaid attendant care services, accruing from the date of the initial hearing in this matter, to be paid by defendants.

Further, because we see no meaningful distinction in the facts of Palmer and the facts of this case, we hold the Commission may award such interest directly to Mr. Chandler given plaintiff’s significant cognitive impairments. Therefore, we must reverse the Commission’s order denying such interest and remand the matter to the Commission on this issue.

Affirmed in part, reversed in part, and remanded.