Mehaffey v Burger King
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NO. COA10-1421 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 DEWEY D. MEHAFFEY, Employee, Plaintiff, v. N.C. Industrial Commission I.C. No. 841066 BURGER KING, Employer, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants. Appeal by Defendants from Opinion and Award entered August 2010 by the North Carolina Industrial Commission. 18 Heard in the Court of Appeals 12 April 2011. The Sumwalt Law Firm, by Mark T. Sumwalt and Vernon Sumwalt, and Grimes and Teich, by Henry E. Teich, for Plaintiff-Appellee. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Jeremy T. Canipe and M. Duane Jones, for Defendant-Appellants. BEASLEY, Judge. Burger Insurance Opinion King and Company, and Award its insurance (collectively entered by carrier, Defendants) the North Liberty appeal Carolina Mutual from an Industrial -2Commission (the Commission) granting Dewey D. Mehaffey (Plaintiff) compensation for past and future attendant care, and payment of expenses for medical care and equipment. For the reasons stated herein, we affirm in part and reverse in part. On 13 August 2007, Plaintiff sustained an admittedly compensable knee injury while working as a manager at Defendant Burger King. on his On 25 September 2007, Plaintiff underwent surgery injured knee. When he did not improve after the operation, his surgeon, Dr. Angus Graham, worried that Plaintiff was developing chronic regional pain syndrome, also known as reflex sympathetic Plaintiff to dystrophy chronic pain (RSD). management Dr. Graham specialist, referred Dr. Eugene Mironer, who performed an unsuccessful lumbar sympathetic block in January 2008. board-certified Plaintiff see Plaintiff then saw Dr. John Stringfield, his family a chronic physician, pain who specialist, Plaintiff to a psychiatrist for depression. again and recommended also referred On 9 June 2008, psychiatrist Dr. Kenneth Leetz evaluated Plaintiff and concluded that his depression was directly related to his injury and the resulting RSD. Dr. Mironer s records indicate that, as of 20 June 2008, Plaintiff was using a walker. Dr. Mironer wrote Plaintiff a -3prescription for a walker, but Defendants did not approve the prescription. Defendants did approve a trial spinal cord stimulator, which Dr. Mironer implanted on 11 August 2008, but was not successful. office, Plaintiff assistant requested Norman a hospital When April 2009, he Dr. Stringfield to in his physician s physician to address equipment needs and attendant care. to him and care presented referred bed primary Plaintiff Carla During a follow-up visit to Dr. Mironer s December 2008 and received prescriptions for a hospital bed, a motorized wheelchair, and a mobility scooter, none of which were authorized by Defendants. From 15 November 2007 through 14 August 2008, Plaintiff s wife, who is not trained as a Certified Nursing Assistant (CNA), provided some attendant care while continuing to work outside the home. On 15 August 2008, she had to stop working to provide full-time care to Plaintiff. In March and May 2009, Judy Clouse, a nurse consultant with the Commission, made recommendations that Defendants compensate Plaintiff for: 10 psychological sessions; evaluations by an RSD specialist, by rehabilitation specialist Dr. Margaret Burke, and by wheelchair specialist CarePartners Seating Clinic; 8 daily hours of attendant care for 5 days per week; and the purchase or -4rental of a hospital bed. CarePartners, manual but did wheelchair Defendants Clouse. not that authorize While Defendants approved an evaluation by authorize the the clinic attendant Defendants either did the motorized recommended. care allow Nor recommended for the or did by Ms. rehabilitation evaluation, Dr. Burke declined the referral due to Plaintiff s extremely limited rehabilitation potential and deferred to Dr. Stringfield s recommendations on equipment needs and prescriptions. Defendants, however, refused to authorize any of Dr. Stringfield s recommendations or prescriptions. On 5 June 2009, Dr. Stringfield recommended 16 hours of attendant care services per day, retroactive to the date of Plaintiff s RSD diagnosis on 15 November 2007. RSD specialist, Dr. July James North, evaluated Plaintiff on 1 2009 and recommended various treatments, some of which required at least one week of in-hospital observation. his home to Dr. North s office, Due to the distance from Plaintiff declined further treatment by Dr. North, despite Defendants offering to provide transportation treatments. and hotel accommodations to facilitate these Dr. North also opined that use of a wheelchair would be counterproductive to Plaintiff s recovery and stated -5that there is no medical basis for providing a hospital bed to a patient with RSD, opinions in which Dr. Mironer concurred. By a Form 33 dated 6 April 2009, Plaintiff requested a hearing to determine Defendants liability for additional medical expenses and treatment, including attendant care. In an opinion and award filed 29 January 2010, Deputy Commissioner J. Brad Donovan awarded Plaintiff compensation for attendant care services provided by his wife, payment of medical expenses incurred or to be incurred, including transportation expenses, and reasonable attorneys fees. On appeal from the deputy commissioner s award, the Commission reviewed the matter. In its Opinion and Award, the Commission explicitly gave the most weight to Dr. Stringfield s recommendations regarding equipment scooter issues, were and equipment found the hospital reasonably required effect a cure for [P]laintiff s condition. bed and mobility at this time to The Commission did not approve the power wheelchair, however, as the doorways in Plaintiff s home are too narrow to accommodate its width. It instead found that Plaintiff was entitled to home modifications that would allow mobility and accessibility within his current residence. Defendants Once would be handicap access responsible for housing a power was provided, wheelchair and -6backup manual vehicle wheelchair. modifications accessible or transportation Plaintiff was Defendants for also provision medical entitled of appointments to handicap and other authorized purposes. The Commission also awarded retroactive compensation for Plaintiff s wife s attendant care at a rate of $12.50 an hour, for 4 hours per day from 15 November 2007 through 14 August 2008, and for 16 hours per day beginning 15 August 2008. Plaintiff was further awarded compensation for 16 hours per day of future attendant care by his wife, subject to reduction by any hours provided by a CNA, as the Commission also entitled Plaintiff up to 8 hours per day of CNA assistance. Lastly, the Commission approved Dr. Stringfield as an authorized treating physician. Defendants filed notice of appeal dated 13 September 2010. I. Defendants awarded provided, to first argue Plaintiff s were improper that wife, because the for the the retroactive attendant services were payments care she not pre- approved. Appellate review of an opinion and award of the Commission is limited to a determination of (1) whether the Commission s -7findings of fact are supported by any competent evidence in the record; and (2) whether the Commission s findings justify its conclusions of law. Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). The Commission s conclusions by of law are reviewable de novo this Court. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997). In support of their argument, Defendants rely on our Supreme Court s decision in Hatchett v. Hitchcock Corp., 240 N.C. 591, 83 S.E.2d 539 (1954), which reversed an award of retroactive payments for attendant care services to the mother of a plaintiff with a broken leg. This award was reversed because the care was not pre-approved by the Commission, nor was it rendered in response to a sudden emergency,1 and thus the plaintiff was not entitled to recover for those services. In response, Plaintiff directs our attention to Godwin v. Swift and Co., 270 N.C. 690, 155 S.E.2d 157 (1967). In Godwin, our Supreme Court upheld an award of retroactive payments for attendant care given to the blind and partially paralyzed plaintiff by his family, despite the fact that such services 1 It is uncontroverted that the attendant care provided by Plaintiff s wife was not in response to a sudden emergency, so the question here is only whether retroactive compensation can be awarded for attendant care services given without pre-approval. -8were rendered without pre-approval. In so holding, the Supreme Court stated that [w]hile some of the charges did not have the prior approval of the Commission, they were so approved before a payment or demand for payment was made, and that this constituted a substantial, if not a technical, compliance with the Commission s rules. 160. far Godwin, 270 N.C. at 694, 155 S.E.2d at Plaintiffs contend that Godwin overruled Hatchett in so as Hatchett services. requires pre-approval for attendant care We cannot agree with this contention. The Supreme Court s opinion in Godwin distinguished the two cases by noting that they involved two very different injuries (a severe brain and spinal cord injury versus a broken leg) and were brought under different sections of the statute (N.C. Gen. Stat. § 97-29 in Godwin and N.C. Gen. Stat. §§ 97-25, 97-26 in Hatchett). At no point in the Godwin opinion does the Supreme Court expressly, or implicitly, overrule Hatchett. In fact, by concluding that the approval of attendant care services prior to payment or demand for such constituted a substantial compliance with the rules, the Supreme Court did not overrule Hatchett. -9In addition, the holding in Hatchett is specifically based upon both the statutes and an Industrial Commission rule which was applicable in 1949 and 1950, providing as follows: In cases of urgent necessity a special graduate or registered nurse may be furnished for not to exceed seven days. Written authority must be obtained in advance for all services in excess of seven days. Fees for practical nursing service by a member of claimant s family or anyone else will not be honored unless written authority has been obtained in advance. Hatchett, 240 N.C. at 593, 83 S.E.2d at 541 (emphasis added). The Industrial Commission has now adopted fee schedules and utilization guidelines as directed by the applicable statutes. Section 14 of the Workers Compensation Medical Fee Schedule addresses practical nursing services by members of the immediate family of the injured as follows: When deemed urgent and necessary by the attending physician, special duty nurses may be employed. Such necessity must be stated in writing when more than seven days of nursing services are required. Except in unusual cases where the treating physician certifies it is required, fees for practical nursing services by members of the immediate family of the injured will not be approved unless written authority for the rendition of such services for pay is first obtained from the Industrial Commission. N.C. Indus. Comm n, The North Carolina Workers Compensation Medical Fee Schedule, Hospital and Ambulatory Surgical Center -10Section 14. The quoted portion of the current Section 14 contains essentially the same rule as applied by the Supreme Court in Hatchett. In fact, the relevant portion of the current rule is almost identical to the rule in effect at the time of Hatchett. The rule specifically addresses practical nursing services by members of the immediate family, which is obviously the situation presented in this case. In the instant case, as in Hatchett, Plaintiff did not receive pre-approval for the attendant care services provided by his wife. Plaintiff brought his claim for retroactive payment for those services under N.C. Gen. Stat. §§ 97-25 and 97-26, the same sections Therefore, of the Hatchett statute controls as the the plaintiff resolution of in Hatchett. this issue. Accordingly, Defendant is not required to reimburse Plaintiff for the attendant care services provided by his wife. extent that the Full Commission s order holds To the otherwise, we reverse. II. Defendants next argue that the Commission erred in awarding Plaintiff ongoing attendant care, a hospital bed, and a mobility scooter because the evidence did not support the findings of -11fact that the Commission relied on to reach this conclusion. We disagree. It is well-established that the Commission s findings of fact are evidence, conclusive even though on appeal there findings to the contrary. when be supported evidence that by competent would support Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965). The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. . . . The court does not have the right to weigh the evidence and decide the issue on the basis of its weight. Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965). Several of the Commission s findings of fact support the conclusion that Plaintiff is entitled to compensation for ongoing attendant care, a hospital bed, and a mobility scooter. The Commission noted that a physician s assistant in the office of Dr. Mironer referred Plaintiff to his primary care physician to address both equipment needs and attendant care. Plaintiff s primary care physician, Dr. Stringer, prescribed a hospital bed, a motorized wheelchair, a mobility scooter, and sixteen hours of attendant care services. Bruce Holt evaluated Additionally, certified life planner Plaintiff and opined that he needs -12attendant care Commission for at least explicitly sixteen stated hours that per Dr. day. The Stringfield s recommendations were entitled to greater weight than those of Plaintiff s other doctors regarding the need for a hospital bed, mobility scooter, and power wheelchair, and found that this equipment was reasonably required to effect a cure for or give relief to Plaintiff s condition. gave much weight to Mr. Evidently, the Commission also Holt s recommendation for attendant care, as it found that Plaintiff requires attendant care for an average of sixteen hours per day. The fact that other doctors who treated Plaintiff disagreed with Dr. findings supported Stringfield of fact by does based competent on not mean those evidence. that the Commission s recommendations The are Commission not soley determines how much weight to award testimony and it is not for this Court to second guess those determinations. Thus, we hold that the Commission s findings of fact are conclusive on appeal and we affirm the conclusions of law they support. III. Defendants final argument is that the Commission erred when awarding Plaintiff home and vehicle modifications, because the evidence did not show, and the Commission did not find, that -13home and vehicle modifications effect a cure or give relief. As discussed in were reasonably required to We disagree. Section II, supra, the Commission s findings that Plaintiff reasonably required a mobility scooter and a wheelchair to effect a cure or give relief are conclusive on appeal because they are supported by competent evidence. home modifications Plaintiff s vehicle home were could modifications awarded not were by the accommodate awarded Commission a The because wheelchair. because without The them, Plaintiff s wife would only be able to transport his scooter in fair weather, as she must strap it to the back of her vehicle. The Commission found that Plaintiff was entitled to modifications that would allow him to travel regardless of the weather conditions. Defendants assert that no physicians testified that these modifications were required to effect a cure or give relief, but it is clear that they are required to enable Plaintiff to use the wheelchair and scooter that required for relief. Thus, we find this argument without merit. Affirmed in part, reversed in part. Judges MCGEE are and STROUD concur.
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