Workers’ Compensation – Retroactive Attendant Care – Disability Compensation

Defendant’s contentions concerning the award of retroactive attendant care, a 10% late penalty on indemnity, Plaintiff’s compliance with medical treatment requested, and the refusal to award attorneys’ fees against Plaintiff were addressed by the North Carolina Industrial Commission in its clearly supported findings of fact, which support the Commission’s conclusions of law. However, the Commission erred in mandating an offset to Plaintiff’s disability award because the payments at issue were contractual in nature.

We affirmed the Commission’s Opinion and Award in part, reversed the portion that awards an offset credit to Defendant, and remanded for recalculation of the amount of Plaintiff’s workers’ compensation award.

Plaintiff employee, Defendant employer, and Defendant The Phoenix Insurance Company appealed from the decision entered in 2023 by the North Carolina Industrial Commission. Defendants contended that the Commission erred in: (1) awarding retroactive attendant care; (2) awarding a 10% late penalty on indemnity; (3) failing to suspend benefits for failure to comply with the medical treatment requested; and (4) failing to award attorneys’ fees against Plaintiff. In contrast, Plaintiff asserted the Commission erred in mandating an offset for his disability award and contends that even if Defendants are entitled to an offset the Commission miscalculated the offset amount.

Plaintiff, a former civil trial lawyer and former equity partner in the law firm of Cranfill, Sumner & Hartzog, had preexisting back issues prior to his injury at work. In 2006, Plaintiff re-injured his back at Charlotte Douglas International Airport while on a work trip. The initial Form 18, Notice of Accident and Claim of Employee, was filed in April 2007. In March 2008, Defendants admitted liability for this compensable injury in an Industrial Commission Form 60 Employer’s Admission of Employee’s Right to Compensation. Since the onset of the injury in 2007, Plaintiff and Defendants have disputed numerous related issues.

In appealing the award of retroactive attendant care, Defendants asserted the findings are insufficient to support the award of retroactive attendant care. Therefore, Defendants believe the Commission’s order awarding medical care including attendant care for four hours per day beginning January 2022 and its supporting conclusion of law are also in error. We disagreed and affirmed the Commission’s determination that attendant care is reasonably medically necessary citing, among other things, a doctor’s testimony that Plaintiff needs support from his wife while dressing and completing other life tasks; and a certified life care planner’s testimony that Plaintiff reported limited ability to cook or fix meals, do laundry, change sheets, and other self-care tasks that require standing and mobility.

Next, Defendants contended the Full Commission made no findings regarding Plaintiff’s continued delaying of the indemnity payment and whether that fact should or should not have any bearing on the timeliness of the payments. Therefore, Defendants argued Plaintiff should not be entitled to a 10% late payment penalty due to his own denial of the need for these payments and his multiple statements that disability payments were not in issue. We disagreed. The Commission clearly made findings that Defendants admitted Plaintiff’s right to compensation and were aware of the compensation laws in place. Pursuant to N.C. Gen. Stat. § 97-18(g) a 10% late penalty is statutorily required when compensation is past due. Thus, we affirmed the Commission’s order.

Defendants contended that because of Plaintiff’s ongoing non-compliance with the home modification order, Plaintiff must be barred from receiving any additional compensation, including attendant care, or from receiving any past, present, or future indemnity until his unreasonable and unjustifiable refusal ceases. The Commission’s determination that a reasonable man would be justified in refusing a home modification that does not align with his doctor’s assessments of his needs and whose architect has told him, “this does not work” is supported by competent evidence. We affirmed the Commission’s determination that Plaintiff’s refusal was reasonable.

Finally, Plaintiff asserted that the Full Commission erred in mandating an offset for his disability award. Plaintiff further contended that the offset amount, if allowed, was miscalculated. We agreed. Because we determined that Defendants are not entitled to offset credit based on equity payments to Plaintiff, it is unnecessary to address Plaintiff’s remaining argument concerning credit miscalculations.

Affirmed in part, reversed in part, and remanded.

Thompson v. Cranfill, Sumner & Hartzog LLP (Lawyers’ Weekly No. 011-094-25, 24 pp.) (April Wood, J.) Appealed from the North Carolina Industrial Commission. The Sumwalt Group, by Vernon Sumwalt and Fink & Hayes, PLLC, by Steven B. Hayes for Plaintiff-Appellee/Cross-Appellant; Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones and Neil P. Andrews, for Defendants-Appellants/Cross-Appellees. North Carolina Court of Appeals