Opinion
I.C. NO. 846937.
Filed 9 August 2007.
The Full Commission reviewed this matter on June 6, 2006 on defendants' appeal from an Opinion and Award filed September 21, 2005 by Deputy Commissioner Chrystal Redding Stanback who initially heard the matter in Nashville, North Carolina on November 19, 2002.
Plaintiff: Edwards Ricci, P.A., Attorneys, Rocky Mount, North Carolina; Roberta L. Edwards, appearing.
Defendants: Teague, Campbell, Dennis Gorham, Attorneys, Raleigh, North Carolina; Robert C. Kerner, Jr., appearing.
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The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Stanback and the briefs and arguments of the parties. The appealing party has shown good ground to reconsider the evidence. Accordingly, the Full Commission reverses the Opinion and Award of the Deputy Commissioner and enters the following Opinion and Award.
********** RULING ON EVIDENTIARY MATTER
Plaintiff filed a Motion to Amend the transcript to include the affidavit of Mary Marks on April 12, 2006. Defendants filed a Response objecting to the Motion. However, it is noted that the affidavit in question was entered into the record as plaintiff's exhibit 2 as noted on pages 2 and 3 of the transcript without objection from defendants and is contained on pages 562 through 564 on the transcript of evidence. As such, plaintiff's Motion is rendered Moot.
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The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing before the Deputy Commissioner as:
STIPULATIONS
1. All parties are properly before the North Carolina Industrial Commission and the North Carolina Industrial Commission has jurisdiction of the parties and the subject matter of this action.
2. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder of parties.
3. On or about June 29, 1998, the defendant-employer employed more than three (3) employees, and it and its employees were bound by and subject to the provisions of the North Carolina Workers' Compensation Act, North Carolina General Statute § 97.
4. On or about June 29, 1998 there existed between Karyn Winders and Edgecombe County Home Health Care an employee/employer relationship.
5. On or about June 29, 1998, the employer was insured for workers' compensation with Sedgwick Claims.
6. On or about June 29, 1998, plaintiff was employed by the employer at an average weekly wage $689.50 per the Form 60 provided by defendants.
7. On or about June 29, 1998, plaintiff was diagnosed with an accidental injury to her back arising out of and in the course of her employment with defendant-employer.
8. Plaintiff has been paid temporary total disability compensation of $459.68 since June 30, 1998 and continues to receive compensation at the weekly rate of $459.68.
9. Documents stipulated into evidence include the following:
(a) Stipulated Exhibit #1: Medical records of plaintiff -
(1) Duke University Medical Center; Durham, North Carolina; three hundred, twenty-four pages of records dated January 13, 1999 through October 20, 2000;
(2) Richard Osenbach, M.D.; Durham, North Carolina; eighty-two pages of records dated July 26, 2001 through July 30, 2002;
(3) ProActive Therapy; Rocky Mount, North Carolina; twelve pages of records dated October 21, 1998 through February 1, 2000;
(4) Donald Serafin, M.D.; Durham, North Carolina; three pages of records dated March 29, 1999;
(5) Bruce Mathern, M.D., Richmond, Virginia; two pages of records dated June 5, 2001;
(6) Michael Sunderman, M.D.; Nashville, North Carolina; twenty-nine pages of records dated January 23, 1998 through October 19, 2002;
(7) Nash Hospitals, Inc.; Rocky Mount, North Carolina; forty-four pages of records dated July 13, 1998 through September 13, 1999;
(8) Shashidhar Kori, M.D.; Durham, North Carolina; three pages of records dated July 11, 2001;
(9) Matthews Rehabilitation Services; Rocky Mount, North Carolina; seventeen pages of records dated July 7, 1998 through November 17, 1998;
(10) Michael Haglund, M.D.; Durham, North Carolina; three pages of medical records dated March 12, 2001;
(11) Physicians East P.A.-Greenville OB/GYN; Greenville, North Carolina; twenty pages of medical records dated May 7, 1997 through April 24, 2000;
(12) Nash Orthopaedic Associates, Rocky Mount, North Carolina; five pages of records dated November 10, 2000.
(b) Stipulated Exhibit #2 — Additional medical records of plaintiff submitted post-hearing (five pages)
(c) Plaintiff's Exhibits 1 — 7 were stipulated into evidence as follows:
(1) All North Carolina Industrial Commission Forms and Motions filed in reference to this matter; including Form 18, 33, 33R, 60 and 62;
(2) Affidavit of Mary Marks
(3) Employment records of Mary Marks (with chart of wages)
(4) Employment records of Karyn Winders
(5) Statement of wages paid to part-time assistant
(6) Intracorp reports
(7) Carolina Case Management reports
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Based upon all of the competent evidence of record and reasonable inferences flowing therefrom, the Full Commission makes the following:
FINDINGS OF FACT
1. Plaintiff was 29 years old at the time of the hearing before the Deputy Commissioner and had worked for defendant-employer as a home health care nurse since July of 1996.
2. On June 29, 1998, plaintiff sustained an admittedly compensable injury by accident arising out of and in the course of her employment with the defendant-employer when she tried to catch a patient who weighed well over 200 pounds who was falling off the bed. Plaintiff initially received treatment from Dr. Michael Sunderman. She was subsequently referred to and received treatment from Dr. John Gorecki at Duke University Medical Center. Later plaintiff was seen and received treatment at Duke University Medical Center from Dr. Shashidhar Kori, Dr. Richard K. Osenbach, Dr. William T. Hardaker, Dr. Francis J. Keefe, and Dr. Michael Haglund.
3. Immediately after her injury, plaintiff was placed on bed rest and taken out of work by Dr. Sunderman. Dr. Sunderman did not order or even indicate that plaintiff needed home health care assistance at this time. Plaintiff's mother, Ms. Mary Marks, testified that she began providing home health care assistance to plaintiff on July 6, 1998 and continued through the month of July 1998. At his deposition taken nearly 4½ years after he initially treated plaintiff, Dr. Sunderman testified that he believed plaintiff may have needed attendant care after her surgeries, which were performed by Dr. Gorecki, in October 1998 and October 2000 if she had small children at home. However, Dr. Sunderman did not treat plaintiff following her surgeries and was not aware of what her attendant care requirements would be following her surgeries.
4. Prior to her injury on June 29, 1998 and until approximately November 1999, plaintiff's daughter was in daycare from approximately 8:00 a.m. to 5:00 p.m., Monday through Friday. Plaintiff also had a son who was born on July 13, 2000.
5. On October 7, 1998, Dr. John Gorecki performed an anterior lumbar discectomy and intervertebral body fusion with BAK cage and bone graft harvested from the left iliac crest, L5-S1 level and L4-5. Plaintiff was released from the hospital on October 14, 1998. Although Dr. Gorecki testified in his deposition that it was common to order home care assistance after such a procedure, Dr. Gorecki did not prescribe attendant care for plaintiff after her surgery.
6. Ms. Marks testified that she provided attendant care to plaintiff from October 1998 through December 1998.
7. Plaintiff and Ms. Marks testified that Ms. Marks provided in home health assistance intermittently from March 2000 to August 2000. There is no evidence in the record indicating that a treating physician prescribed such attendant care.
8. Plaintiff underwent a minor surgical procedure with Dr. Gorecki on October 9, 2000 for insertion of a dorsal column stimulator. On November 17, 2000, Dr. Gorecki's nurse, Amanda Rose, wrote a note indicating that it would be helpful for plaintiff to have light help for daily activities such as housecleaning and caring for her children for the next 6 to 8 weeks. However, in his deposition, Dr. Gorecki testified that he would not expect plaintiff to need nursing care assistance with the essential duties of daily living, including childcare, as a result of the procedure, which he characterized as a fairly minor procedure. Furthermore, Dr. Gorecki did not write a prescription for attendant care services following the procedure.
9. From July 6, 1998, when Ms. Marks testified she first began providing attendant care services to plaintiff, to February 2001, no treating physician prescribed attendant care. Furthermore, plaintiff made no request to the Industrial Commission for written authority or approval of fees to be paid to Ms. Marks for her attendant care services.
10. For the first time since plaintiff's injury, by affidavit submitted to the Industrial Commission dated February 7, 2001, Ms. Marks requested reimbursement for attendant care services provided to plaintiff from July 1998 until February 2001 totaling 1,726 hours at a rate of $24.56 per hour which is Ms. Marks' rate of pay as a registered nurse with the Nash County Health Department. In support of the amount of hours she provided attendant care to plaintiff, Ms. Marks attached copies of her timesheets for her job with the Nash County Health Department to show how many hours Ms. Marks cared for plaintiff rather than working.
11. Ms. Marks testified that from the time of plaintiff's injury until the date of the hearing, she provided holistic care to plaintiff. This included assistance with activities of daily living as well as providing physical, psychological, and emotional needs.
12. Ms. Marks testified that she also hired someone to assist plaintiff for several months while Ms. Marks was working. Ms. Marks paid the assistant $858.00.
13. Plaintiff did not seek approval of and payment for the attendant care services provided by Ms. Marks from July 1998 to February 2001 in a timely manner.
14. Beginning in March or April 2001, defendants began providing attendant care for plaintiff for approximately 16 hours per day.
15. Plaintiff began treating with Dr. Richard Osenbach on July 26, 2001 for pain management. On August 27, 2001, several months after defendants began providing attendant care services, Dr. Osenbach performed a procedure to replace the implanted pulse generator for plaintiff's spinal cord stimulator system. On November 6, 2001, Dr. Osenbach indicated in a letter to the rehabilitation consultant, Carolyn Powell, that he did not think plaintiff's need for home health was a result of the procedure performed on August 27, 2001, which he described as a relatively minor procedure, but rather that she is probably needing help at home because of her ongoing pain problem regarding her lower back. On January 8, 2002, Dr. Osenbach wrote a letter indicating that plaintiff suffers from a chronic intractable pain syndrome that consists of lower back and lower extremity pain, and her pain has been only moderately well-controlled. Dr. Osenbach further testified that he wrote the letter to confirm that plaintiff still required some help for her children, as well as help with her housework.
16. Ms. Pamela Teachey, a rehabilitation consultant for Carolina Case Management, testified that she conducted research in home health care rates for Nash County, plaintiff's county of residence. Ms. Teachey testified that she would categorize the care provided to plaintiff by Ms. Marks as those typically provided by a home health care aide or a personal care aide. Ms. Teachey testified that agencies are charging between $14.00 an hour and $15.50 an hour for a personal care aide. Ms. Teachey's testimony was limited to how much an agency charges to provide home health services. She provided no testimony regarding what a home health aide or personal care aide would actually earn.
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Based upon the foregoing stipulations and findings of fact, the Full Commission reaches the following:
CONCLUSIONS OF LAW
1. Pursuant to the terms and provisions of N.C. Gen. Stat. § 97-25 "medical compensation shall be provided by the employer." However, before an employer can be required to provide a service or treatment, a valid prescription or recommendation for the service or treatment has to be made by either a treating physician or agreed to by the employer. In the case at hand, for the period from July 1998 to February 2001 there is no evidence of a prescription or contemporaneous recommendation that attendant care services be provided to plaintiff.
2. It is well settled that the workers' compensation act provides for the payment of attendant care services. In providing payment for attendant care services, the employer's liability is not just to trained professionals, but also to family members who provide necessary attendant care services. Levens v. Guilford County Schools, 152 N.C. App. 390, 567 S.E.2d 767 (2002); London v. Snak Time Catering, Inc., 136 N.C. App. 473, 525 S.E.2d 203 (2000). See also, Godwin v. Swift Co., 270 N.C. 690, 155 S.E.2d 157 (1967).
3. Plaintiff is required to obtain prior approval from the Industrial Commission for reimbursement of the attendant care services provided by Ms. Marks.
North Carolina Workers' Compensation Medical Fee Schedule § 14, Special Duty Nursing; Hatchett v. The Hitchcock Corp., 240 N.C. 591, 83 S.E.2d 539 (1954); see also Godwin v. Swift Co., 270 N.C. 690, 155 S.E.2d 157 (1967). Chapter 14 of the Workers' Compensation Medical Fee Schedule specifically states:
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 have been 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.
North Carolina Workers' Compensation Medical Fee Schedule § 14, Special Duty Nursing.
This requirement in the Industrial Commission's fee schedule is consistent with the long established rule in North Carolina that practical nursing will not be honored unless written authority is first obtained from the Commission. See Hatchett v. The Hitchcock Corp., supra. The Commission acknowledges that the "Special Duty Nursing" provision, quoted above, is included in Chapter 14 of the fee schedule, entitled "Hospital Fee Schedule." The Special Duty Nursing provision, however, is not limited to inpatient ( i.e., hospital) services. The intent of the provision is to cover all special duty nursing and attendant care, and this is the Commission's standard practice and interpretation. The Commission finds that the last page in the hospital fee chapter contains several miscellaneous provisions, including the Special Duty Nursing and Home Health Agency provisions. The preauthorization requirement is necessary to place the employer/carrier on notice of the employee's need for such services, to cause an investigation as to the extent of the necessary services, if any, and to allow the employer to exercise its right to direct the medical care. See N.C. Gen. Stat. § 97-25. The Legislature specifically authorized the Industrial Commission to adopt guidelines for attendant care, and the provisions of Chapter 14 of the Medical Fee Schedule are in accordance with the Legislature's directive. See N.C. Gen. Stat. § 97-25.4(a). The adopted guidelines for attendant care provided in Chapter 14 of the Medical Fee Schedule are consistent with prior appellate decisions condoning the Commission's policy of pre-approval for family attendant care. See Godwin v. Swift Co., 270 N.C. 690, 155 S.E.2d 157 (1967); Hatchett v. The Hitchcock Corp., supra. The preauthorization provisions of Chapter
The Commission notes that some more recent Court of Appeals decisions have discussed the approval of past attendant care without addressing the Commission's guidelines that are contained in Chapter 14 of the Medical Fee Schedule. See Ruiz v. Belk Masonry Co., Inc., 148 N.C.App. 675, 559 S.E.2d 249 (2002) (finding that pre-approval is not required under § 97-90(a)); London v. Snak Time Catering, Inc., 136 N.C.App. 473, 525 S.E.2d 203 (2000) (approving family attendant care without addressing pre-approval requirements). The Commission suggests that these decisions are not precedent for allowing attendant care without prior Commission approval because the requirements of Chapter 14 of the Medical Fee Schedule were not presented to the Court of Appeals for its consideration in these cases and they were not analyzed in conjunction with the Legislature's directive authorizing the Industrial Commission to develop guidelines for attendant care. See N.C.G.S. § 97-25.4(a). Furthermore, the Commission suggests that exceptional circumstances existed in both Ruiz and London such that the Commission awarded compensation for past family attendant care where prior approval had not been requested. In the case at hand, the greater weight does not support a finding of exceptional circumstances to justify an award of compensation.
14 of the Medical Fee Guidelines are reasonable and are intended to ensure that injured employees are provided the services and care intended under the Act and that medical costs are reasonably contained. N.C. Gen. Stat. § 97-25.4(a). The request for payment for these services must be made within a reasonable amount of time. See Schofield v. Great Atlantic Pacific Tea Co., 229 N.C. 582, 264 S.E.2d 56 (1980). It was not until February 2001 that plaintiff first requested approval of and payment to Ms. Marks for services plaintiff contends were attendant care services that Ms. Marks provided to plaintiff beginning in July 1998. This request was not made within a reasonable amount of time and should be denied. N.C. Gen. Stat. § 97-25.4(a); Chapter 14, North Carolina Industrial Commission Medical Fee Schedule. Furthermore, since defendants agreed to and began providing attendant care services in March or April 2001, any request by Ms. Marks for reimbursement for attendant care services provided after March or April 2001 should be denied.
4. Plaintiff's claim for attendant care services by Ms. Marks should be denied. N.C. Gen. Stat. §§ 97-2(19); 97-25, 97-25.4(a).
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Based upon the foregoing findings of fact and conclusions of law, the undersigned enters the following:
AWARD
1. Plaintiff's claim for attendant care services by Ms. Mary Marks is DENIED.
2. Each party shall pay its portion of the costs.
This the 30th day of May 2007.
S/______________________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
S/______________________ BUCK LATTIMORE CHAIRMAN
DISSENTING:
S/______________________ BERNADINE S. BALLANCE COMMISSIONER
I disagree with the majority's determination that plaintiff is required to obtain prior approval from the Industrial Commission for reimbursement of the attendant care services provided by plaintiff's mother, Ms. Marks.
The majority correctly notes that some recent North Carolina Court of Appeals decisions have discussed pre-approval of attendant care services preformed by family members, including Ruiz v. Belk Masonry Co., Inc., 148 N.C. App. 675, 559 S.E.2d 249 (2002), and London v. Snak Time Catering, Inc., 136 N.C. App. 473, 525 S.E.2d 203 (2000), but incorrectly indicated that the Court of Appeals decisions were rendered without addressing or reviewing the Commission's guidelines that are contained in Chapter 14 of the Medical Fee Schedule. The majority stated: "The Commission suggests that these decisions are not precedent for allowing attendant care without prior Commission approval because the requirements of Chapter 14 of the Medical Fee Schedule were not presented to the Court of Appeals for its consideration in these cases." I disagree and firmly believe Ruiz is binding precedent on the issue currently before the Commission.
The Court of Appeals in the Ruiz case was, in fact, presented with the language of Chapter 14 of the Medical Fee Schedule for its consideration. Nevertheless, the Ruiz Court specifically found and concluded:
Defendants also contend plaintiff is not entitled to attendant care benefits because plaintiff did not seek approval of the care before it was performed. N.C. Gen. Stat. § 97-90(a) (1999) states the charges of `health care providers for medical compensation under this Article shall be subject to the approval of the Commission; but no physician or hospital or other medical facilities shall be entitled to collect fees from an employer or insurance carrier until he has made the reports required by the Commission in connection with the case.'
However, N.C.G.S. § 97-90(a) does not require pre-approval of fees charged by health care providers, except for physicians, hospitals, or other medical facilities. Plaintiff's brother does not fit into the exceptions for N.C.G.S. § 97-90(a). This interpretation is consistent with our case law, which has allowed compensation to health care providers similar to plaintiff's brother, without the Commission's pre-approval.
Ruiz, 148 N.C. App. at 681, 559 S.E.2d at 253-54 ( citing Godwin v. Swift Co., 270 N.C. 690, 155 S.E.2d 157 (1967), and London, 136 N.C. App. 473, 525 S.E.2d 203).
In the defendants' brief to the Ruiz Court, they specifically argued that payment for attendant care services rendered by family members prior to the approval of the Commission should be denied. The defendants based their argument upon the language found in Chapter 14 of the Medical Fee Schedule, which defendants quote as: "[f]ees 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." Defendants' Appellate Brief to the Court of Appeals at page 19. In plaintiff's brief to the Ruiz Court, the plaintiff responded: "[the d]efendants' only authority for a `pre-approval' requirement is a vestigial statement in the Industrial Commission's Rating Guide. However, the language upon which [the d]efendants rely is found in a chapter dealing with patient care in a hospital. Thus, [the d]efendant[s'] `authority' applies to situations only in which family members are providing skilled nursing services during a hospitalization, not attendant care services provided in the home. The [d]efendants' `authority' does not apply to this case." Plaintiff's Appellate Brief to the Court of Appeals at pages 33-34. In addition to his argument, plaintiff attached a copy of Chapter 14 of the Medical Fee Schedule as an appendix to his brief. Therefore, the majority incorrectly states that the requirements of Chapter 14 of the Medical Fee Schedule were not presented to the Court in Ruiz.
The majority relies on the case of Hatchett v. The Hitchcock Corp., 240 N.C. 591, 83 S.E.2d 539 (1954), in making its determination that prior approval for attendant care services by family members is required; however, Hatchett is not controlling law on the issue. In Hatchett, the Supreme Court of North Carolina denied payment of past family attendant care services provided by the plaintiff's mother because the Commission had not given prior approval for family attendant care services. The Hatchett Court specifically determined that nursing care services required prior approval. In reaching its decision, the Hatchett Court relied on N.C. Gen. Stat. § 97-26, and Chapter 14 of the Medical Fee Schedule of the Industrial Commission.
N.C. Gen. Stat. § 97-26, has been amended since the Supreme Court rendered its decision in Hatchett and the language relied upon by the Hatchett Court is no longer present. Since the ruling in Hatchett, the Commission has also revised the language of Chapter 14 of the Medical Fee Schedule dealing with special duty nursing. The current language allows reimbursement for "practical nursing services" performed by family members without prior approval "in unusual cases where the treating physician certifies it is required." Therefore, Hatchett is not controlling law in the instant case.
I believe plaintiff's mother should be reimbursed for the attendant care services she provided to plaintiff without prior approval during any period for which treating physicians opined that such services were reasonably required. Three doctors have testified that plaintiff needed attendant care for a period of time after surgery. Dr. Michael Sunderman first saw plaintiff on June 30, 1998, and later referred plaintiff to Dr. John Gorecki, who performed plaintiff's first surgery on October 7, 1998, and a second surgery on October 9, 2000.
Dr. Sunderman opined that since plaintiff has young children, she would need attendant care services after her initial back surgery and subsequent surgery in October 2000. Dr. Gorecki opined that he would not expect plaintiff to need nursing care after her October 2000 procedure even with small children. However, on November 17, 2000, he did authorize a note that stated it would be helpful for plaintiff to have light help for house cleaning, caring for her children, bathing, grocery shopping and errands for six to eight weeks. Dr. Gorecki also testified that had plaintiff requested home health assistance and had requested to have her mother provide those services, he would have found this request to be reasonable. Dr. Richard Osenbach, who first saw plaintiff in July 2001, testified that he recommended attendant care services because plaintiff was in pain and needs help around the house.
Plaintiff is requesting reimbursement for attendant care services provided by her mother from July 1998 until February 2001, for a total of 1,726 hours at a rate of $24.56 per hour. Although plaintiff's mother is a nurse, she provided unskilled nursing care to plaintiff. Defendants began providing attendant care services for plaintiff in either March or April 2001, for sixteen hours per day.
I believe the evidence establishes that plaintiff needed attendant care to provide relief and lessen her disability from her injury. I am of the opinion that at least a portion of the 1,726 hours of attendant care provided by plaintiff's mother should be reimbursed. Since plaintiff's mother did not provide skilled nursing care, I am of the opinion that she should be reimbursed at a rate consistent with unskilled care, such as that provided by a home health care aide.
For the reasons stated above, I respectfully dissent from the Opinion and Award by the majority herein.