Mehaffey v. Burger King, Emp'r, Liberty Mut. Ins. Co.

• Decision Date: 08 November 2013
• Docket Number: No. 24PA12.,24PA12.
• Citation: 749 S.E.2d 252
• Parties: Dewey D. MEHAFFEY, Employee v. BURGER KING, Employer, Liberty Mutual Insurance Company, Carrier.
• Court: North Carolina Supreme Court

749 S.E.2d 252

Dewey D. MEHAFFEY, Employee

v. BURGER KING, Employer,Liberty Mutual Insurance Company, Carrier.

No. 24PA12.

Supreme Court of North Carolina.

Nov. 8, 2013.

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 718 S.E.2d 720 (2011), affirming in part and reversing in part an opinion and award filed on 18 August 2010 by the North Carolina Industrial Commission. Heard in the Supreme Court on 14 November 2012.

Sumwalt Law Firm, Charlotte by Mark T. Sumwalt and Vernon Sumwalt; and Grimes Teich Anderson LLP, by Henry E. Teich, Asheville, for plaintiff-appellant.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., Charlotte by M. Duane Jones and Jeremy T. Canipe, for defendant-appellees.

HUDSON, Justice.

This case presents the question whether the Medical Fee Schedule promulgated by the North Carolina Industrial Commission (Commission) may bar certain individuals from receiving compensation for attendant care services they provided before obtaining approval for those services from the Commission. We hold that the Commission may not do so since such action would exceed the power granted to the Commission by the General Assembly. Because the Court of Appeals enforced that provision of the Commission's Medical Fee Schedule, which we conclude was adopted in excess of the Commission's authority, we reverse in part the decision of the Court of Appeals. But because defendants here have challenged the reasonableness of the timing of plaintiff's request for approval of attendant care and the Commission's findings do not address this issue, we remand for the Commission to do so.

On 13 August 2007, plaintiff suffered a compensable injury to his left knee while working as a restaurant manager for defendant Burger King, where he had been employed for approximately eighteen years. As a result of his injury, plaintiff underwent a “left knee arthroscopy with a partial medial meniscectomy” at Transylvania Community Hospital. Plaintiff's condition failed to improve after surgery, and he ultimately developed “reflex sympathetic dystrophy” (“RSD”). Despite undergoing a number of additional procedures, plaintiff continued to suffer pain. Plaintiff eventually was diagnosed with depression related to the injury and resulting RSD, and his psychiatrist concluded that it was unlikely plaintiff's “mood w[ould] much improve until his pain is under better control.”

Likely due to pain, plaintiff increasingly attempted to limit his movements following his diagnosis of RSD. By 8 April 2008, plaintiff was using “an assistive device” to move or walk around. On 21 April 2008, John Stringfield, M.D., plaintiff's family physician, prescribed a mobility scooter for plaintiff, and medical records show that by 20 June 2008, plaintiff was using a walker. On 18 December 2008, plaintiff requested a prescription for a hospital bed from Eugene Mironer, M.D., a pain management specialist with Carolina Center for Advanced Management of Pain, to whom plaintiff had been referred as a result of his diagnosis with RSD. Dr. Mironer's office declined to recommend a hospital bed, instructing plaintiff to see his family physician instead. That same day plaintiff visited his family physician, Dr. Stringfield, who prescribed both a hospital bed and a motorized wheelchair.

Since plaintiff's injury, his wife has assisted him with his daily activities in the home. Until 14 August 2008, plaintiff's wife attended to his needs approximately four hours per day. On 15 August 2008, Mrs. Mehaffey discontinued her outside employment, and since then she has attended to plaintiff's needs approximately sixteen hours per day. In her caregiver role, Mrs. Mehaffey helps “plaintiff out of bed in the morning, gives him a sponge bath, and assists [him] in dressing.” She also helps “get [him] onto the scooter and transfers [him] from the scooter to a recliner, where plaintiff sits most of the day.” She prepares plaintiff's meals and attends to his bodily needs. At the end of each day, Mrs. Mehaffey helps “plaintiff dress for bed and helps him into bed.”

Despite plaintiff's efforts to limit his activity and movement, the medical providers plaintiff saw for pain management indicated that he would derive greater benefit if he attempted to move under his own strength, which would force him to rehabilitate his injury. James North, M.D., the codirector of pain management at Wake Forest Baptist Hospital and plaintiff's preferred treating physician, “opined that providing plaintiff with a power wheelchair was counterproductive to his recovery” because “people using wheelchairs tend to gain weight and avoid using the extremity that causes their pain, both of which impede[ ] the recovery process.” Dr. North reasoned that “the less an injured extremity is used, the worse the condition will become.” Likewise, Dr. North concluded “that there was no scientific or medical basis for requiring a hospital bed for patients with RSD.” Dr. North's medical opinion was echoed by Dr. Mironer. Nonetheless, plaintiff used these mobility aids and comfort devices, procuring for himself the hospital bed and motorized scooter.

Plaintiff's family physician and other individuals began to recommend that plaintiff receive attendant care services. On 9 March 2009, Judy Clouse, a nurse consultant employed by the Commission, recommended that plaintiff receive eight hours of attendant care daily, Monday through Friday, from a Certified Nursing Assistant. On 5 June 2009, Dr. Stringfield recommended that plaintiff have sixteen hours a day of attendant care services, retroactive to the day plaintiff was diagnosed with RSD, thereby including the almost two years of attendant care plaintiff's wife had already provided. Bruce Holt, a certified life care planner, also opined that plaintiff “needs attendant care for at least 16 hours per day, seven days a week.”

In light of these recommendations regarding his needs, plaintiff sought a hearing before the Commission to clarify the extent of medical compensation owed to him. Defendants denied any failure to pay for necessary medical treatment. Relevant for our purposes, plaintiff and defendants disagree whether plaintiff's wife should be compensated for the attendant care she provided plaintiff before the Commission approved her rendering that service. Defendants contend that the Commission's Medical Fee Schedule prevents such an award of retroactive compensation to Mrs. Mehaffey. Plaintiff, on the other hand, views Mrs. Mehaffey's attendant care services as simply another component of medical compensation within the meaning of N.C.G.S. § 97–2(19) (2007), for which defendants are responsible under N.C.G.S. § 97–25 (2007).

The Commission agreed with plaintiff on this issue, choosing not to follow its own fee schedule, perhaps in recognition that it was not authorized to deny reimbursement for these services. First, in an opinion and award filed on 29 January 2010, a deputy commissioner directed defendants to compensate Mrs. Mehaffey for the “attendant care services rendered to plaintiff at the rate of $12.50 per hour, 16 hours per day and seven days per week, from 15 August 2008, through the present and continuing until further order of the Commission.” On appeal the Full Commission affirmed in pertinent part the deputy commissioner's opinion and award, concluding that Mrs. Mehaffey's attendant care services were medical compensation for which defendants were responsible under sections 97–2(19) and 97–25 of our General Statutes. In addition, the Full Commission further compensated Mrs. Mehaffey for the attendant care services previously provided from 15 November 2007 through 14 August 2008, while she was still employed outside the home. For those attendant care services the Full Commission awarded compensation for four hours daily, seven days a week, also at a rate of $12.50 per hour.

The Court of Appeals, relying on our decision in Hatchett v. Hitchcock Corp., 240 N.C. 591, 83 S.E.2d 539 (1954), reversed the Commission's decision to provide compensation for Mrs. Mehaffey's past attendant care services. Mehaffey v. Burger King, ––– N.C.App. ––––, ––––, 718 S.E.2d 720, 723–24 (2011). In Hatchett we were presented with a situation in which the Commission had awarded financial compensation to an injured worker's mother under sections 97–25 and 97–26 of our General Statutes for practical nursing services that she provided to her son without prior approval from the Commission. 240 N.C. at 592–93, 83 S.E.2d at 540–41. Ultimately, this Court determined that the Commission's fee schedule, promulgated pursuant to the Commission's rulemaking authorityunder the Workers' Compensation Act (the Act), prohibited such an award of compensation for practical nursing services unless that conduct had been first approved by the Commission. Id. at 593–94, 83 S.E.2d at 541–42. As a result, we reversed the Commission's award.

The Court of Appeals reasoned that the outcome in the present case is controlled by our decision in Hatchett. First, that court observed that the claim for payment in this case was brought under sections 97–25 and 97–26 of our General Statutes, the same provisions that were at issue in Hatchett.Mehaffey, ––– N.C.App. at ––––, 718 S.E.2d at 724. Additionally, the Court of Appeals explained that the language of the rule at issue in Hatchett, which said, “Fees for practical nursing service by a member of claimant's family or anyone else will not be honored unless written authority has been obtained in advance,” is nearly identical to the language now found in the Commission's Medical Fee Schedule. Id. at ––––, 718 S.E.2d at 723–24 (citations and quotation marks omitted). As a result, the Court of Appeals concluded that the Commission should have followed the holding of Hatchett and thus declined to award compensation for Mrs. Mehaffey's past provision of attendant care services. Id. at ––––, 718...