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Retroactive Compensation for Family Care Available in Workers' Compensation

In a recent decision, the North Carolina Court of Appeals clarified a ruling about attendant care. Even if a family member of an injured worker did not have pre-approval for compensation of expenses, familial caregivers can be compensated for reasonable nursing services as long as compensation is requested within a reasonable time.

In Chandler v. Atlantic Scrap & Processing, the plaintiff, Connie Chandler, was injured in 2003 while working as part of cleaning services for Atlantic Scraps' three buildings. Plaintiff fell down a flight of concrete steps and struck the posterior portion of her head and neck on the steps. The plaintiff suffered headaches, shoulder pain, neck pain, dizziness, insomnia and memory problems. The plaintiff's condition continued to worsen and she has required around-the-clock care from her husband since 2004. In 2008, plaintiff filed a Form 33 Request that Claim be Assigned for hearing to seek "payment of attendant care services by her husband from 2004 forward." The defense filed a Form 33R denying the plaintiff's claim. Plaintiff prevailed at her initial hearing before the Deputy Commissioner, but appealed the opinion and award to the Full Commission, asking that the Commission award interest on the past due attendant care to be paid to plaintiff's husband.

The Commission affirmed the opinion and award of the Deputy Commissioner and declied to award interest to Mr. Chandler "in its discretion." Plaintiff then filed a motion to amend seeking an order of mandatory payment of interest to plaintiff. The Commission filed an order declining to award plaintiff the interest, Plaintiff and defendants filed timely notices of appeal to the North Carolina Court of Appeals.

The Court of Appeals held that Mr. Chandler was entitled to compensation for attendant care services, because "defendants had notice of plaintiff's required attendant care services, which out of necessity, were being provided by Mr. Chandler." The Court did not define a reasonable time frame, but in this case, a 4-year delay in asking the North Carolina Industrial Commission to award expenses was reasonable because the injured employee was severely impaired and the defendant was aware that the injured employee was receiving around-the-clock care out of necessity from the spouse.

Chandler was awarded workers' compensation for attendant care expenses, including interest, as well as attorneys' fees.

https://appellate.nccourts.org/opinions/?c=2&pdf=32874

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