NORTH CAROLINA Some Answers, but Still More Questions About Attendant Care Benefits
Some Answers, but Still More Questions About Attendant Care Benefits
2011 saw a number of significant changes to workers’ compensation law in North Carolina. While a large number of these changes were due to the North Carolina General Assembly passing several legislative reforms on June 24, 2011 (“the Reform Act”), the rules governing attendant care benefits evolved as a result of both these legislative reforms and decisions by the North Carolina Court of Appeals. While the Reform Act provides some clarity about when attendant care benefits may be awarded in claims arising after June 24, 2011, several appellate decisions have caused confusion and, in turn, created an entirely different standard for claims arising before June 24, 2011. Moreover, two more cases from the Court of Appeals reach entirely opposite conclusions about when a retroactive award of attendant care is allowed (that is, when may the Industrial Commission order a carrier to pay for attendant care services previously rendered by a claimant’s spouse when those services were not authorized).
The first flicker of change to attendant care benefits came on April 19, 2011 when the North Carolina Court of Appeals issued their decision in Shackleton v. Southern Flooring & Acoustical Company. In this case, the Court addressed the proper standard for an award of attendant care benefits. The Full Commission denied the claimant’s request for attendant care benefits on the basis that it was never prescribed by a physician. The Court of Appeals expressly rejected this requirement and instead adopted a flexible case-by-case approach in which the Commission may determine the reasonableness and medical necessity of particular attendant care services by reviewing a variety of evidence, including but not limited to the following: (1) a prescription or report of a healthcare provider; (2) the testimony or a statement of a physician, nurse, or life care planner; (3) the testimony or a statement of a physician, nurse, or life care planner; (4) the testimony of the claimant or the claimant’s family member; or (5) the very nature of the injury. In short, the Court of Appeals found that a prescription for a physician was a factor to be considered, but was not required.
However, with the passing of the Reform Act on June 24, 2011, it became apparent that different standards for receipt of attendant care benefits would apply to cases that arise on or after June 24, 2011. The Reform Act added “attendant care services” to the definition of “medical compensation,” but limited it to “attendant care services prescribed by a health care provider authorized by the employer or subsequently by the Commission.” Importantly, the Act specifically states that this new definition of “medical compensation” only applies to claims arising on or after June 24, 2011. Consequently, for cases that arose prior to the Reform Act, the flexible case-by-case approach elicited in Shackleton will be used to determine if attendant care services are reasonable and necessary. In these cases, a prescription from a physician is not a prerequisite to the awarding of such services. On the other hand, for cases that arise on or after June 24, 2011, attendant care benefits may be awarded only if the claimant obtains a prescription from an authorized health care provider.
While Shackleton and the Reform Act clarify whether a prescription from a physician is required for receipt of attendant care benefits, the appellate courts were not so clear about whether an immediate family member is entitled to compensation for providing retroactive attendant care services when those services were not first authorized by the carrier or the Industrial Commission. On December 6, 2011, the Court of Appeals issued its decision in Mehaffey v. Burger King. In Mehaffey, the Court of Appeals held that, in order for an immediate family member to receive compensation for providing attendant care, the claimant must first receive prior authorization for these services by either the carrier or the Industrial Commission, as required by the Industrial Commission’s Medical Fee Schedule. In other words, the Mehaffey Court held that a retroactive award of attendant care benefits was improper. Two weeks later, on December 20, 2011, three different judges from the Court of Appeals issued an apparently conflicting opinion in Chandler v. Atlantic Scrap & Processing. In this case, the Court held that medical treatment provided by a claimant’s spouse was not subject to the Fee Schedule and therefore could be awarded retroactively by the Industrial Commission.
Interestingly, both the Mehaffey and Chandler Courts cited different prior appellate decisions in support of their apparently contradictory opinions. Fortunately, both Mehaffey and Chandler have been appealed to the North Carolina Supreme Court, so hopefully this conflict will be resolved soon. Until then, claimants and carriers alike will remain uncertain about when exactly an award of retroactive attendant care services is appropriate. Meanwhile, thanks to the Reform Act, it has become clear that a prescription for attendant care services is required for claims arising on or after June 24, 2011. On the other hand, no such prescription is necessary for this award in claims arising prior to June 24, 2011.
ABOUT THE AUTHOR
Benjamin R. Moeller is an attorney with McAngus Goudelock & Courie. Founded in 1995, MG&C is a full-service law firm with offices in Columbia, Greenville, Charleston and Myrtle Beach, SC, and Asheville, Charlotte and Raleigh, NC. The firm’s practice areas include workers’ compensation defense, employment, banking and consumer law, administrative law, government relations, construction litigation, commercial litigation, products litigation, business law, real estate law and health care and regulatory issues. Mr. Moeller may be reached at 919.719.8219 or by email.