Connie Chandler v. Atlantic Scrap and Processing (NC Ct. of Appeals, 12/1/15)

Plaintiff sustained a compensable head and neck injury on August 11, 2003 as a result of a fall at work.  In addition to her physical injuries, plaintiff also developed depression and cognitive impairments secondary to post-concussive syndrome.  During the course of her treatment from November 2003 through October 2004, the carrier referred plaintiff to multiple physicians, each of which confirmed plaintiff suffered from decreased cognitive functioning and required constant attendant care services.  Plaintiff’s husband began providing those attendant care services in June 2004.  Despite the recommendation from the authorized providers that plaintiff required attendant care, defendants elected not to secure those services; nor did they did pay Mr. Chandler for the same.

Plaintiff filed a Form 33 seeking an award of permanent total disability and payment of attendant care services for Mrs. Chandler to be paid to Mr. Chandler  from June 2004 forward.  The Commission approved plaintiff’s claim, but denied plaintiff’s request for interest on the award.  Both parties appealed to the Court of Appeals.  The COA affirmed the Commission, finding that Mr. Chandler was entitled to compensation for attendant care services, because defendants had actual notice that plaintiff required attendant care services, which were being provided by Mr. Chandler out of necessity because defendants failed to provide them with an outside service.

Defendants then appealed the COA decision, and the Supreme Court affirmed, but remanded the case to the Commission to determine an award of interest and the amount of attorney’s fees for plaintiff’s counsel pursuant to N.C.G.S. 97-88.  The Commission entered an award of interest and attorney’s fees to plaintiff.  Defendants appealed again to the Court of Appeals, alleging that the Commission failed to enter appropriate findings of fact on the issue of plaintiff’s award for attendant care.

On the second appeal, the Court held that the attendant care issue was not before the Commission on remand, and that even if it was, the Commission’s findings were sufficient.  Therefore, the Court affirmed the decision, and remanded the case back to the Commission to determine an additional amount of appellate attorney’s fees under N.C.G.S. 97-88.

PRACTICE TIP  Regarding the attendant care issue, defendants cannot avoid liability for those services once prescribed by the authorized provider simply because plaintiff has not formally requested that they be provided.  Given the difficult standard of review at the appellate level, defendants should ensure that further appeals are carefully considered before proceeding.  This is especially true based on the essentially mandatory award of plaintiff’s appellate attorney’s fees pursuant to N.C.G.S. 97-88 if the Commission’s decision is affirmed.