State News : North Carolina

NC Risk Handling Hint -Attendant Care Services; Home Modifications; Post Award Interest

Sheryl Boylan suffered a compensable back injury in 2003 and was awarded past and future attendant care services, at $8 per hour, for care provided by her daughter and her sister’s family in the past and her sister’s family in the future. This was affirmed by the Court of Appeals.Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155 (2009).

Boylan’s daughter moved back into Boylan’s home in April 2009 and resumed providing attendant care. As the Commission had not provided for future changes in attendant care providers, Defendants did not pay her. Defendants also argued Boylan’s claim for attendant care had been rendered moot by Defendants’ modifications to Boylan’s home and Boylan’s own medical improvement. Both parties filed Form 33s and, after a hearing, both parties appealed to the Full Commission. The Full Commission awarded $8 per hour for all services provided by Boylan’s daughter from April 2009 to the date of its Opinion and Award and $10 per hour for ongoing attendant care provided by either Boylan’s daughter or her sister’s family or, if they were unable, professionals. The Full Commission also awarded Boylan costs for modifications to her home, but denied Boylan’s request for interest on attendant care between August 2004 and April 2009 because Boylan had not suffered any prejudice or out of pocket expenses.

On December 18, 2012, inBoylan v. Verizon Wireless, the Court of Appeals first found that the Full Commission did not err in awarding Boylan attendant care from April 2009 onward as there was competent evidence to support the Commission’s finding that such care was ‘medically beneficial’ to Boylan including testimony from a certified life care planner and registered nurse. Their testimony was that Boylan needed eight hours of care daily and was at risk of falling if she did not receive it. In finding attendant care medically beneficial, the Full Commission dismissed the idea that Boylan’s medical condition had improved to the point that such care was unnecessary.

The Court also affirmed the Full Commission’s determination that the cost of skilled nursing care was competent evidence to determine the rate for unskilled attendant care provided by family members. Judge Beasley, however, dissented in part on this issue, stating that evidence of the cost of skilled nursing care was not competent evidence which supported the hourly rate awarded by the Full Commission.

Although home modifications were not expressly recommended by Boylan’s physicians, the Court concluded that the Full Commission did not err in awarding Boylan home modifications since her occupational therapist, life care planner and occupational nurse all testified that she would benefit from further modifications, including wheelchair ramps and a handicapped accessible pantry. In addition, the Court found that the Full Commission did not err in preventing Defendants from choosing Boylan’s attendant care provider despite their right to direct medical treatment in this accepted claim because Defendants had not directed care to their chosen provider in a prompt and adequate manner and fought Boylan’s claims for attendant care at every step.

The Court also concluded that the Full Commission erred in failing to award Boylan interest on the portion of attendant care awarded from August 2004 until April 2009 because the Commission incorrectly required a show out of pocket expenses or prejudice. According to the Court, there is no discretion in the application of N.C.G.S. § 97-86.2 which requires interest be paid on the final award from the date of the initial hearing until the award is paid. The purpose of the statute is to compensate Plaintiffs for the lost time value of money, to prevent unjust enrichment to Defendants by delaying payment, and to promote settlement. There is no requirement that Plaintiffs show prejudice or out of pocket expense. 

Risk Handling Hint: Although N.C.G.S. § 97-2(19) has been revised to require a prescription by a health care provider or authorization by the employer or the Commission for attendant care services, the Boylan case still clarifies that the Commission can weigh evidence supporting an award of attendant care services. In addition, evidence of the value of skilled nursing services can be considered as evidence even though non-skilled services are actually rendered. Defendants should take care to control all medical treatment, including attendant care, in an accepted case in a prompt and timely manner, to avoid losing control of the treatment and creating further issues in the claim.