Appeal by Plaintiff from opinion and award entered 1 September
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 13 September 2006.
Oxner Thomas + Permar, pllc, by Devin F. Thomas, for
Brotherton Ford Yeoman & Worley, PLLC, by Joseph F. Brotherton
and Steven P. Weaver, for Defendants-Appellees.
Victor Everhart (Plaintiff) filed a motion for attendant care
with the North Carolina Industrial Commission (the Commission) on
23 July 2003, seeking compensation from Defendants for routine
house and yard work that he was no longer able to perform as a
result of a compensable injury. Defendants filed a letter in
opposition to Plaintiff's motion on 28 July 2003. Special Deputy
Commissioner Robert J. Harris denied Plaintiff's motion in an order
entered 11 August 2003. Plaintiff later filed a Form 33 and Defendants filed a Form
33R. The parties waived a hearing and stipulated to the facts by
letter dated 7 January 2004. Deputy Commissioner Wanda Blanche
Taylor entered an opinion and award on 8 February 2005, denying
Plaintiff's claim for attendant care. Plaintiff appealed to the
Commission, which denied Plaintiff's claim for attendant care in a
1 September 2005 opinion and award.
In its opinion and award, the Commission made the following
uncontested findings of fact. Plaintiff suffered a compensable
injury to his shoulder and neck on 22 April 2002. Defendants
accepted Plaintiff's claim and have provided medical care and
indemnity benefits to Plaintiff since that time. Dr. Kevin M.
Supple (Dr. Supple) treated Plaintiff and kept Plaintiff out of
work until 12 June 2002, at which time Dr. Supple opined that
Plaintiff could work "one-handed." Dr. Supple took Plaintiff out
of work again on 17 July 2002, pending repair to Plaintiff's
rotator cuff. It was Dr. Supple's opinion that Plaintiff had a
twenty percent permanent partial disability rating to his shoulder
and Dr. Supple restricted Plaintiff to lifting no more than ten
pounds on 4 August 2002. Dr. Supple also restricted Plaintiff from
using his left arm for overhead lifting. Plaintiff remained out of
work until 7 October 2002, at which time Dr. Supple again
determined that Plaintiff could work "one-handed."
Dr. Supple referred Plaintiff to Dr. Max Cohen (Dr. Cohen) in
December 2002. Dr. Cohen restricted Plaintiff on 13 December 2002
to lifting no more than five pounds, to no overhead activities andto no pushing or pulling. Dr. Cohen performed a multi-level
cervical fusion of C5-6, C6-7, and C7-T1 on Plaintiff on 21
February 2003, and took Plaintiff out of work.
In a letter from Plaintiff's counsel to Dr. Cohen on 11 June
2003, Plaintiff's counsel asked Dr. Cohen if he believed Plaintiff
"would benefit from having some assistance with his yard and house
work[.]" Dr. Cohen responded to Plaintiff's counsel in a letter
dated 23 June 2003 that he was "in agreement that [Plaintiff]
require[d] some level of assistance at home both with his yardwork
as well as routine household cleaning jobs." Dr. Cohen also wrote
as follows: "I would be happy to assist [Plaintiff] in any way that
I can in gaining the necessary assistance. [Plaintiff] can stop by
[my] office for a prescription or drop off any forms that he may
have that require completion." At the time of Dr. Cohen's
response, Dr. Cohen had restricted Plaintiff to lifting no more
than five pounds, to no bending, twisting or stooping, and to no
prolonged standing. Dr. Cohen placed these restrictions on
Plaintiff on 19 June 2003.
A few weeks later on 1 August 2003, Dr. Cohen imposed the
following, less restrictive limitations on Plaintiff: "(a) No
overhead lifting over ten pounds; (b) No repetitive bending,
twisting, or crouching; and (c) No pushing or pulling greater than
Plaintiff also contests the Commission's following finding of
Dr. Cohen's statement that [P]laintiff
requires "some level of assistance" and otherevidence presented are insufficient to meet
[P]laintiff's burden of establishing that
assistance with yard work and housecleaning is
a reasonably required "medical, surgical,
hospital or other treatment" covered under
N.C. Gen. Stat. § 97-25, considering
[P]laintiff's permanent physical restrictions.
Plaintiff's restrictions do not appear to
prevent him from doing routine housecleaning
or routine yardwork.
Plaintiff further challenges the Commission's conclusion of law:
The benefits sought by Plaintiff in this
proceeding are for assistance at home with his
yard work as well as routine house cleaning
jobs. Plaintiff has not proven by the greater
weight of the evidence that assistance with
yard work and household cleaning is a
reasonably required medical or "other
treatment" covered under N.C. Gen. Stat. § 97-
25 under the facts of this case.
Based upon its findings of fact and conclusion of law, the
Commission denied Plaintiff's claim for attendant care. Plaintiff
Plaintiff argues the Commission erred by denying Plaintiff's
motion for attendant care. Plaintiff contends he is entitled to
payment from Defendants for routine house and yard work that he is
no longer able to perform as a result of his compensable injury.
First, Plaintiff misconstrues the cases he relies upon.
Second, Plaintiff was never prescribed attendant care by his
treating physician. Finally, because of Dr. Cohen's relaxed
restrictions on Plaintiff's activities, Plaintiff did not require
assistance with routine house and yard work, and the Commission's
findings to that effect are supported by competent evidence. Our Court reviews decisions of the Commission to determine
"whether any competent evidence supports the Commission's findings
of fact and whether the findings of fact support the Commission's
conclusions of law." Deese v. Champion Int'l Corp.
, 352 N.C. 109,
116, 530 S.E.2d 549, 553 (2000) (citing Adams v. AVX Corp.
N.C. 676, 509 S.E.2d 411 (1998), reh'g denied
, 350 N.C. 108, 532
S.E.2d 522 (1999)). The Commission's findings of fact are
conclusive on appeal if supported by competent evidence, even when
there is evidence to support contrary findings. Id.
at 115, 530
S.E.2d at 552-53. The Commission's conclusions of law are reviewed
by our Court. Grantham v. R.G. Barry Corp.
, 127 N.C. App.
529, 534, 491 S.E.2d 678, 681 (1997), disc. review denied
, 347 N.C.
671, 500 S.E.2d 86 (1998).
The North Carolina Workers' Compensation Act provides that
"[m]edical compensation shall be provided by the employer." N.C.
Gen. Stat. § 97-25 (2005). The Act also provides that "[t]he
Commission may at any time upon the request of an employee order a
change of treatment and designate other treatment suggested by the
injured employee subject to the approval of the Commission[.]" Id.
The Act defines "medical compensation" as
medical, surgical, hospital, nursing, and
rehabilitative services, and medicines, sick
travel, and other treatment, including medical
and surgical supplies, as may reasonably be
required to effect a cure or give relief and
for such additional time as, in the judgment
of the Commission, will tend to lessen the
period of disability[.]
N.C. Gen. Stat. § 97-2(19) (2005).
In support of his argument, Plaintiff cites several cases inwhich 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." However, this was not the test employed
by our Court and the Supreme Court in reviewing these cases.
Rather, in each case, our appellate courts simply determined
whether the Commission's findings of fact were supported by
competent evidence and whether the conclusions of law were
supported by the findings. Palmer
, 161 N.C. App. at 646-49, 590
S.E.2d at 277-79; Levens
, 152 N.C. App. at 394-400, 567 S.E.2d at
, 148 N.C. App. at 679-82, 559 S.E.2d at 252-54
, 136 N.C. App. at 474-80, 525 S.E.2d at 204-08; Godwin
N.C. at 693-95, 155 S.E.2d at 159-61. We employ the same test
In the present case, although Plaintiff argues that Dr. Cohen
prescribed home assistance for Plaintiff, the record does not
support that argument. In his letter to Plaintiff's counsel, Dr.
Cohen stated that he agreed that Plaintiff required some level ofassistance with house and yard work. Also in the letter, Dr. Cohen
stated that Plaintiff "can stop by [my] office for a prescription
or drop off any forms that he may have that require completion."
However, the record does not show that Plaintiff ever sought a
prescription for home assistance or that Dr. Cohen ever prescribed
home assistance for Plaintiff.
Moreover, in the present case, the permanent restrictions
placed on Plaintiff by Dr. Cohen do not appear to prevent Plaintiff
from performing routine house and yard work. The parties
stipulated to the following facts. Although Dr. Cohen suggested
that Plaintiff required some assistance with routine house and yard
work, he did so at a time when he had restricted Plaintiff to
lifting no more than five pounds, to no bending, twisting or
stooping, and to no prolonged standing. However, within two months
of imposing those restrictions, and after suggesting that Plaintiff
required some assistance, Dr. Cohen eased the restrictions on
Plaintiff's activities. Dr. Cohen restricted Plaintiff to no
overhead lifting of more than ten pounds, to no repetitive bending,
twisting, or crouching, and to no pushing or pulling of more than
thirty pounds on 1 August 2003. These permanent restrictions seem
to have eliminated any need Plaintiff might have had for assistance
with routine house and yard work. Therefore, the Commission's
finding, that "Plaintiff's restrictions do not appear to prevent
him from doing routine housecleaning or routine yardwork[,]" is
supported by competent evidence. We also hold that this finding of
fact supports the Commission's conclusion that under the facts ofthis case, assistance with routine house and yard work is not
"other treatment" covered under N.C.G.S. § 97-25.
For the reasons stated above, we overrule Plaintiff's
assignments of error grouped under this argument. We hold the
Commission did not err in denying Plaintiff's claim for attendant
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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