Id. at 461-62, 473 S.E.2d at 359. Our research has yielded several North Carolina cases upholding awards for attendant care, including: Godwin v. Swift Co., 270 N.C. 690, 155 S.E.2d 157 (1967); Palmer v. Jackson, 161 N.C. App. 642, 590 S.E.2d 275 (2003); Levens v. Guilford Cty. Schools, 152 N.C. App. 390, 567 S.E.2d 767 (2002); Ruiz v. Belk Masonry Co., 148 N.C. App. 675, 559 S.E.2d 249, disc. review denied, 356 N.C. 166, 568 S.E.2d 610 (2002); London v. Snak Time Catering, Inc., 136 N.C. App. 473, 525 S.E.2d 203 (2000). In each of those cases, the question considered by the Court was simply whether the Commission's findings of fact were supported by competent evidence and whether the conclusions of law were supported by the findings.
N.C. Gen. Stat. § 97-2(19) (2005). In support of his argument, Plaintiff cites several cases in which our appellate courts have upheld awards for attendant care, including: Palmer v. Jackson, 161 N.C. App. 642, 590 S.E.2d 275 (2003); Levens v. Guilford Cty. Schools, 152 N.C. App. 390, 567 S.E.2d 767 (2002); Ruiz v. Belk Masonry Co., 148 N.C. App. 675, 559 S.E.2d 249, disc. review denied, 356 N.C. 166, 568 S.E.2d 610 (2002); London v. Snak Time Catering, Inc., 136 N.C. App. 473, 525 S.E.2d 203 (2000); Godwin v. Swift Co., 270 N.C. 690, 155 S.E.2d 157 (1967). Plaintiff argues that "[i]n each case [our appellate Courts] have looked to determine whether the claimant was capable of performing the tasks on his own. If not, because of the work injury, and if prescribed by the treating doctor, attendant care was inevitably awarded."
Our courts repeatedly have upheld awards of attendant care by the Industrial Commission, when the awards are supported by competent evidence. See Godwin v. Swift Co., 270 N.C. 690, 155 S.E.2d 157 (1967); Palmer v. Jackson, 161 N.C. App. 642, 590 S.E.2d 275 (2003); Levens v. Guilford Cty. Schools, 152 N.C. App. 390, 567 S.E.2d 767 (2002); Ruiz v. Belk Masonry Co., 148 N.C. App. 675, 559 S.E.2d 249 (2002); London v. Snak Time Catering, Inc., 136 N.C. App. 473, 525 S.E.2d 203 (2000). In Godwin, Levens, and London, our courts not only upheld an award of attendant care, but also upheld an award of payment to family members for attendant care which they provide to injured family members.
When determining the appropriate rate for attendant care provider fees, the Commission must consider factors including the provider's expertise, the type of services rendered, and actual wages earned by an equivalent attendant care provider. SeeLevens v. Guilford Cty. Schs. , 152 N.C. App. 390, 399, 567 S.E.2d 767, 773 (2002) (considering evidence of attendant care services provided by plaintiff's family members). ¶ 39 Pursuant to Workers’ Compensation Rule 614, if a health care provider fee dispute cannot be resolved, the health care provider "shall file a motion to intervene with the Commission."
Chandler v. Atlantic Scrap & Processing, ––– N.C.App. ––––, ––––, 720 S.E.2d 745, 752 (2011), disc. review allowed,––– N.C. ––––, 731 S.E.2d 141 (2012), cited by the majority, is easily distinguishable because the Commission was presented with testimony about the rate paid to an unskilled attendant. Levens v. Guilford County Schools, 152 N.C.App. 390, 396–97, 567 S.E.2d 767, 771–72 (2002), is also distinguishable. In Levens, the medical case manager testified that a home health attendant usually was paid anywhere between $8.50 to $10/hour, though the home health agencies usually charged an insurance company more for their employees' services (up to $15).
" 7 Am. Jur. 3d Proof of Facts 143 § 12 (1990).See Ruiz, 148 N.C. App. 675, 559 S.E.2d 249; London, 136 N.C. App. at 479, 525 S.E.2d at 207; Godwin, 270 N.C. at 694, 155 S.E.2d at 160; Boylan v. Verizon Wireless, ___ N.C. App. ___, ___, 685 S.E.2d 155, 160 (2009), disc. review denied, 363 N.C. 853, 693 S.E.2d 918 (2010) (Evidence sufficient when a rehabilitative nurse opined that "due to her current physical condition, [the] Plaintiff needs some level of assistance in the performance of her daily living activities"); Levens v. Guilford County Schs, 152 N.C. App. 390, 396, 567 S.E.2d 767, 771 (2002) (concluding that "the Commission did not err in ordering that . . . the details of any new home construction or remodeling should be governed by `reasonableness and medical necessity,' without specifically ordering that [the claimant's treating physician's] specifications be followed"). Since neither this Court nor the North Carolina Supreme Court has adopted the "four-part" test in Leathers for the determination of whether "attendant care is reasonable and necessary[,]" the Commission's requirement that a physician's prescription is a prerequisite to attendant care compensation constitutes a misapprehension of law. "If the conclusions of the Commission are based upon a . . . misapprehension of the law, the case should be remanded so `that the evidence [may] be considered in its true legal light.'"
13. Attendant care services, whether provided by professional heath care providers or non-professional family members, is classified as medical compensation which is defined as "medical surgical, hospital, nursing, and rehabilitative services . . . and other treatment . . . required to effect a cure or give relief. . . ." N.C. Gen. Stat. § 97-2(19); Godwin v. Swift Co., 270 N.C. 690, 155 S.E.2d 157 (1967); Palmer v. Jackson, 161 N.C. App. 642, 590 S.E.2d 275 (2003); Levens v. Guilford Cty. Schools, 152 N.C. App. 390, 567 S.E.2d 767 (2002); Ruiz v. Belk Masonry Co., 148 N.C. App. 675, 559 S.E.2d 249 (2002); London v. Snak Time Catering, Inc., 136 N .C. App. 473, 525 S.E.2d 203 (2000). 14. A reasonable attorney fee in this case is the contingency contract rate of 25% of weekly disability benefits and for attendant care provided to Plaintiff by his wife, Ms. Mazza. N.C. Gen. Stat. § 97-90.
2. The Commission can find no basis for separating attendant care services from the provision of other medical care. It has long been held that the assignment of and payment for attendant care services is accomplished pursuant to N.C. Gen. Stat. § 97-25 and constitutes medical services to be paid for by defendants. See Levens v. Guilford County Schools, 152 N.C. App. 390, 567 S.E.2d 767 (2002). Accordingly, N.C. Gen. Stat. § 97-18(i) applies in regards to penalties for late payment of those services.
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).
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).