There are some cases in which a Winston-Salem work-related injury is so serious, the employee is deprived of some level of independence. He or she may require assistance at home with basic tasks. In these situations, workers’ compensation benefits should cover the costs of attendant care.
This was what was ordered in the case of Chandler v. Atlantic Scrap & Processing, a determination recently affirmed by the North Carolina Court of Appeals. Justices ruled not only was plaintiff entitled to attendant care costs, but defendants were required to pay her attorney’s fees for the appeal.
The underlying injury in this case is a severe head injury, though it did not present that way initially, which is why the workers’ compensation insurance company fought it so hard.
According to court records, plaintiff worked as a cleaner at three metal recycling buildings. One morning, as she started her duties at 7 a.m., she was descending a flight of concrete steps when she fell backward, striking the back of her head and neck. When EMS workers arrived, plaintiff was agitated and confused and had a large bruise and swelling on the back of her head. Physicians noted signs of some type of brain injury. She indicated she fell forward on the stairs, when she had clearly fallen backward. She told them it was January, but it was August. She told them it was cold outside, even though it was summertime. And she couldn’t tell them the year. But there was no evidence of a major problem in radiological tests, so she was diagnosed with a concussion or closed head injury, plus also a neck injury and a tear to her rotator cuff.
In the months that followed, her condition worsened. She suffered horrible headaches, dizziness, insomnia, vomiting and nausea and pain almost every day. She also was beginning to suffer sensitivity to light and significant memory problems. Then there were the emotional problems. The intense crying spells. She became fearful to leave her husband’s side. She clung to him anytime she went anywhere, including to doctor’s appointments.
And it only continued to get worse. Her intellectual funding dropped from borderline to impaired. Her conversational speech was fragmented, confused. She couldn’t answer simple questions. She upset easily. She could not concentrate or remember certain things.
She was diagnosed the following year with global cognitive deficits in higher cortical functioning as a result of the fall a year earlier. Soon thereafter, she found it impossible to be alone or perform basic activities without the aid of her husband. She required constant supervision and 24-7 care. He provided constant attendant care services for her.
Her primary care doctor determined she reached maximum medical improvement with her traumatic brain injury. This was affirmed by another doctor, who opined plaintiff would never get better mentally than she was.
Despite all these, defendant employer refused to pay for attendant care services provided by her husband. Her condition slowly got even worse. By 2007, she had regressed to the state of a 4-year-old. She was permanently and totally disabled, her doctors stated. A county clerk of courts declared her incompetent and named her husband her guardian.
A request was filed to pay husband for attendant care services and an award of permanent total disability. Defendants denied the request, arguing plaintiff wasn’t permanently and totally disabled, she wasn’t entitled to attendant care services and her current medical state wasn’t caused by her work injury.
Deputy commissioner sided with plaintiff, and awarded past due attendant care services for $15 hourly 24 hours a day. Commission affirmed, except reduced the award to $11 an hour for 15 hours daily.
Both plaintiff and defendant appealed this decision. However, there was a discretionary review by the North Carolina Supreme Court, which affirmed per curiam, but remanded to ensure the decision wasn’t inconsistent with another attendant care case, Mehaffey v. Burger King, in which there was a question as to the reasonable delay in requesting attendant services. The appeals court found the delay was reasonable and awarded plaintiff attorneys’ fees and interest.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
Chandler v. Atlantic Scrap & Processing, Dec. 1, 2015, North Carolina Court of Appeals
More Blog Entries:
Sorensen v. Harbor Bar – Lapse Between Work Injury and Effects Can be Challenge in Proving Causation, Nov. 29, 2015, Winston-Salem Work Injury Lawyer Blog