Whitfield v. Western Steer of North Carolina

In this case, the majority has taken the position that despite Dr. Chapman's prescription for plaintiff to have a vehicle with hand controls and a lift, it is not reasonably necessary. It is from this view that I must respectfully dissent from the majority opinion.

In cases of total and permanent disability, compensation, including reasonable and necessary nursing services, medicines, sick travel, medical, hospital and other treatment or care of rehabilitative services, shall be paid for by the employer during the lifetime of the injured employee. Timmons v. North CarolinaDepartment of Transportation. No. COA 95-835 (1996).

In the Timmons case, which was just quoted above, the Court found that plaintiff was indeed entitled to have defendants make the necessary additions to plaintiff's home. This action was taken by the Court because it found the additions were reasonably necessary. In this case before us, we have a Board Certified doctor who has prescribed a vehicle that can accommodate plaintiff's permanent and total disabilities. Dr. Chapman's prescription was based on plaintiff's position that the vehicle was reasonable and necessary. If the majority cannot believe in the prescription of a Board Certified doctor to help this plaintiff, then I cannot agree that the opinion taken by the majority is reasonable and necessary. Therefore, I must respectfully dissent.

S/ ___________________________ COY M. VANCE COMMISSIONER

The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Hedrick. The appealing party has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Opinion and Award.

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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 as:

STIPULATIONS

1. A set of plaintiff's medical and rehabilitation records, marked as Stipulated Exhibit Number Two, is admitted into evidence.

2. Plaintiff's Industrial Commission Form 33, Request that Claim be Assigned for Hearing, is admitted into evidence.

3. The issue for decision by the undersigned is whether plaintiff is entitled to have defendants pay for a hand controlled automobile with a scooter lift.

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The Full Commission adopts the findings of fact found by the Deputy Commissioner as follows:

FINDINGS OF FACT

1. At the time of the hearing, plaintiff had not driven an automobile for approximately three years. The last vehicle plaintiff drove had an automatic transmission. As a result of her injury on 2 July 1986, plaintiff would lose strength in her legs when driving and had difficulty depressing the brake pedal.

2. On 23 August 1995, Dr. Chapman prescribed a vehicle with hand controls and a lift. At the time of the hearing, plaintiff and her husband owned a 1996 Ford Ranger pickup truck with a manual transmission. The gear shift was mounted on the floor. Plaintiff and her husband did not own another automobile. Due to its manual transmission, the pickup truck could not be equipped with hand controls.

3. Plaintiff enrolled in a computer training course at Alamance Community College during the fall of 1995. Plaintiff did not complete the course due to pain from her 1986 injury. There is no evidence of record that plaintiff failed to complete the course due to a lack of adequate transportation. Plaintiff planned to enroll in another computer training course during the fall of 1996. The evidence of record is insufficient to prove by its greater weight that plaintiff's condition had improved to the extent that she would be able to complete the course she intended to take in 1996.

4. Plaintiff believed that an automobile equipped with hand controls and a lift for her motorized scooter would increase her mobility. Plaintiff was desirous of returning to work.

5. The evidence of record is insufficient to prove by its greater weight that a vehicle equipped with hand controls and a lift is reasonably necessary to effect a cure, give relief or to lessen plaintiff's period of disability.

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Based upon the findings of fact, The Full Commission concludes as follows:

CONCLUSIONS OF LAW

1. A vehicle equipped with hand controls and a lift is not a rehabilitation service, other treatment or a medical or surgical supply. N.C. Gen. Stat. § 97-2(19).

2. Plaintiff is not entitled to have defendants provide her with a vehicle equipped with hand controls and a lift. N.C. Gen. Stat. § 97-2(19); McDonald v. Brunswick Electric Membership Corp.,77 N.C. App. 753, 336 S.E.2d 407 (1985).

COMMENT

Assuming that plaintiff did establish that a specially equipped vehicle is reasonably necessary for her rehabilitation, she would only be entitled to have defendants provide the necessary modifications to an automobile she purchased or otherwise obtained. She would not be entitled to have defendants provide her with the automobile itself. Timmons v. North CarolinaDept. of Trans., ___ N.C. App. ___, ___ S.E.2d ___ (1996).

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Based on the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:

AWARD

1. Under the law, plaintiff's claim must be, and the same is hereby, DENIED.

2. Each party shall bear its own costs.

S/ ___________________________ MARY MOORE HOAG DEPUTY COMMISSIONER

CONCURRING:

S/ ___________________________ DIANNE C. SELLERS COMMISSIONER DISSENTING

S/ ___________________________ COY M. VANCE COMMISSIONER

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