Shulenberger v. Hbd Industries, Inc.

2. At all times relevant, an employment relationship existed between plaintiff and the defendant-employer.

3. Sentry Insurance Company is the carrier on the risk.

4. Plaintiff's average weekly wage on the date of injury was $439.50, yielding a compensation rate of $293.00 for the date of disability.

5. The parties stipulated to any and all Industrial Commission forms filed during the pendency of the claim and judicial notice was taken of all such forms.

6. The parties stipulated to any and all medical and/or rehabilitation records generated in the claim.

7. At the hearing before the Deputy Commissioner, the parties stipulated into evidence a Pre-Trial Agreement, as well as a set of medical records. Further, during testimony, defendants' Exhibits 1 and 2 were admitted into evidence without objection.

2. Defendants immediately began paying total and permanent disability benefits.

3. Since plaintiff's date of injury, he has received medical treatment from various providers and has undergone numerous surgical procedures. At the time of the hearing before the Deputy Commissioner, plaintiff was receiving regular treatment from Dr. Mark Lyerly, a neurosurgeon, Jay Boulter, a licensed marriage and family therapist/counselor, and Dr. Barbara Thomas, a psychiatrist who was overseeing plaintiff's psychiatric medication management. Additionally, since the beginning of this claim, Ms. Groce has been the medical case manager assigned to assist plaintiff and his family.

4. Plaintiff was discharged from the hospital in mid-August 2001. At that time it was determined that plaintiff needed personal care and assistance because of his difficulties ambulating and attending to other activities of daily living. Toni Shulenberger (plaintiff's sister-in-law) was engaged to provide to plaintiff attendant care services for four hours per day, five days per week, at the rate of $10.00 per hour, for a total payment of $200.00 per week. At the hearing before the Deputy Commissioner, Toni Shulenberger clarified that she was not a Certified Nursing Assistant and was instead considered to be a Personal Care Aide. She testified that she had worked at least four hours per day for every weekday since the date of accident. She testified that she classified her services in two categories. The first was as personal care to plaintiff, wherein she provided him with standby assistance in bathing, shaving, clipping his toenails, etc. She considered the other part of her services to be "chores," which included his laundry, changing of linens, vacuuming, and keeping his living space clean.

5. At the hearing, Toni Shulenberger also testified that approximately once a week, her four hours of care consisted of cleaning and maintaining plaintiff's separate residence in which he had not lived since the date of the accident. Prior to her testimony, defendant-carrier was not aware that Toni Shulenberger was charging Sentry Insurance Company for those services.

6. Shirley Shulenberger, plaintiff's mother, testified that plaintiff has been living with her since his discharge from the hospital in August 2001. Shirley Shulenberger testified that she assists plaintiff with going to the bathroom, provides him with his medications, cooks, cleans, washes laundry, manages plaintiff's finances, and schedules his medical appointments. As plaintiff has been depressed and suicidal, he requires his mother's constant attention. Plaintiff's mother also testified that she provides him with verbal cues to motivate him to eat, dress, etc. At the time of plaintiff's injury by accident, Shirley Shulenberger was employed full time at Pillowtex, and continued to work full time until July 2003 when Pillowtex closed. Between August 2001 and July 2003, plaintiff was at home alone for a portion of the day, and Toni Shulenberger provided care for plaintiff for four hours per day. Shirley Shulenberger testified that plaintiff now needs constant attention, and requests that defendants pay her for giving 24 hours of care to Plaintiff per day.

7. Defendants in this matter reached an initial agreement with Shirley Shulenberger to pay her a flat fee of $30.00 per trip for transporting plaintiff to local medical appointments and $75.00 per trip for transporting plaintiff to out-of-town medical appointments. Shirley Shulenberger was not required to submit her time or mileage in exchange for these reimbursements. Defendants' Exhibit 1, which is a spreadsheet of expenses charged to Sentry by Shirley Shulenberger, reveals that beginning in August 2002, Shirley Shulenberger began charging Sentry higher rates for certain medical appointments. Shirley Shulenberger increased her rates only occasionally until October 2003, at which time she regularly began charging Sentry increased rates for appointments. She testified that the length of the appointment would determine how much she charged defendants, but she did not clearly explain how many hours generated a $100.00 charge as opposed to a $150.00 charge.

8. In early 2005, the Shulenberger family approached defendants about housing modifications and transportation issues. At that time, defendants began to examine, from a cost perspective, what those issues would entail and, at that point, realized Shirley Shulenberger had unilaterally increased what she was charging defendants for medical visits. It was also at that time that defendants realized that Toni Shulenberger was charging them for caring for plaintiff when plaintiff was hospitalized out-of-town. Toni Shulenberger testified that neither defendants nor Ms. Groce has been notified that she was performing "chores" at a residence other than the residence where plaintiff was living.

9. At the time of the hearing, Darren Todd Shulenberger, plaintiff's brother, also requested to be paid for services he alleges he has provided to the family because of plaintiff's injury. According to testimony from the Shulenberger family, plaintiff mowed both his own yard and his mother's yard prior to his injury, and following his injury, his brother, Darren Todd Shulenberger, was responsible for those lawn-mowing duties. Further, Darren Todd Shulenberger also testified that he has had to take over car maintenance tasks from plaintiff. He estimated that these activities required about two hours per day, seven days a week. Mr. Shulenberger stated at the time of the hearing that before the date of the hearing, he had never requested that defendants pay for any such services.

10. Brad Wilson, one of the adjusters who had handled this claim between September 2002 and February 2005, testified that defendants had paid Shirley Shulenberger and Toni Shulenberger all charges they had submitted for reimbursement. He further testified that prior to the housing and transportation issues which arose in early 2005, defendants had never questioned any medical care or procedure recommended by any of plaintiff's providers. Mr. Wilson further testified that defendants would be willing to pay for necessary medical care, as recommended by plaintiff's treating physicians.

11. Mr. Wilson further testified that defendants had never been made aware that Darren Todd Shulenberger was alleging that he was entitled to be reimbursed for lawn and car maintenance services because of plaintiff's injuries. Further, Mr. Wilson did not know that Toni Shulenberger had charged defendants for cleaning and maintaining plaintiff's unoccupied residence.

12. Dr. Barbara Thomas, plaintiff's treating psychiatrist, testified that plaintiff is suffering from major depressive disorder, single episode, moderate to severe with mild psychotic features; post-traumatic stress disorder; and a pain disorder with psychological and physiological features. She attributes these ailments to plaintiff's occupational injury. She testified that "he's just so depressed and panicky and anxious all the time, he really — he can barely function outside of his home. His safe person has become his mother. She attends him almost constantly." She testified that plaintiff cannot function on his own. She testified that he needs someone with him at all times.

13. Dr. Mark Lyerly, a neurosurgeon, testified that plaintiff's condition was "horrible" and that plaintiff had difficulty taking care of the basics. Dr. Lyerly also testified that although plaintiff's family was able to leave him for three to four hours at a time, plaintiff could not be left alone for a full 18 hours per day. Dr. Lyerly also testified that beginning in October 2003, he had recommended home health care for plaintiff for four hours per day, 5 days per week. He verified that as of December 7, 2004, he had again written a prescription noting that plaintiff needed home health care four hours per day, five days per week, forever. He further testified that he believed it was reasonable that plaintiff's family should be paid for at least 14 hours per day of care because they were responding to plaintiff's current needs of cooking, yard work, etc. He testified he did not think it made sense to pay for home care for 24 hours per day. Further, Dr. Lyerly testified that a certified nursing assistant was not required to provide such attendant care.

14. Jay Boulter, a professional counselor who has been treating plaintiff since 2002, testified that plaintiff needs the constant attendant care that is currently being performed by plaintiff's mother, although in his that care could also be provided by someone else in his opinion.

15. Ms. Groce testified that Toni Shulenberger had been paid, four hours per day five days per week since August 2001. Defendants believed Toni Shulenberger to be a Certified Nursing Assistant at the time of initial engagement. Ms. Groce testified that at the present time, attendant care was more focused on "standby assistance," for prompting and possible safety issues as plaintiff could do his own bathing and dressing. Ms. Groce also testified that no doctor had ever recommended that anyone be paid more than four hours per day, five days per week. She pointed out that Dr. Lyerly, in a prescription of 2004, had written an order for attendant care for an indefinite period of time, but left it at four hours per day, five days per week. Ms. Groce also indicated that she would defer to other professionals on whether round-the-clock care was necessary. She further testified that the competitive rate for personal care services in the area was $14.50 per hour.

16. Based upon the competent evidence of record including the testimony of lay witnesses and medical expert testimony, and as agreed upon by defendants, the undersigned hereby find as fact that it is necessary and reasonable for plaintiff to have attendant care for eighteen (18) hours per day, seven days per week, by a family member or agency at the rate of $14.50 per hour.

17. Defendant has not engaged in stubborn, unfounded litigiousness during the course of defending this claim.

2. Notwithstanding arrangements wherein defendants have paid plaintiff's mother and his sister-in-law for attendant care services, no member of the Shulenberger family ever made a motion with the Industrial Commission and no Industrial Commission order was ever filed which orders defendants to pay any Shulenberger family member for their assisted services to plaintiff as is required by N.C. Gen. Stat. §97-26(a); Rule 407 of the Workers' Compensation Rules of the North Carolina Industrial Commission; North Carolina Workers' Compensation Medical Fee Schedule, Chapter 14 "Hospital Fee Schedule" (January 1996); and Hatchett v. Hitchcock Corporation, 240 N.C. 591 (1954). Accordingly, the requests by Shirley Shulenberger, Toni Shulenberger, and Darren Todd Shulenberger for retroactive compensation for attendant care services must be denied.

3. Attendant care provided to plaintiff for eighteen hours per day, seven days per week at the rate of $14.50 per hour, is appropriate under N.C. Gen. Stat. § 97-25.

4. As defendant's actions in the course of litigation of this case do not constitute stubborn, unfounded litigiousness, defendant is not responsible for payment of plaintiff's attorney's fees. N.C. Gen. Stat. § 97-88.1.

2. Defendants can choose to provide these services to plaintiff by engaging a professional vendor to provide said services or by paying a member of the Shulenberger family.

The person designated to provide said care shall provide that care to plaintiff within the residence in which plaintiff is residing.

3. Defendants shall pay the costs.

This the 15^th day of November, 2006.

S/____________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING IN A SEPARATE OPINION

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

I concur in the majority's decision but write a separate concurring opinion to clarify several points concerning payment to plaintiff's family members for retroactive attendant care services provided. The majority authorizes payment of attendant care services as of November 8, 2004, the date plaintiff filed the Form 33 Request for Hearing.

I agree with the majority opinion that Chapter 14 of the Workers' Compensation Medical Fee Schedule requires pre-approval by the Commission of family attendant care to an injured worker. However, I believe that the Commission has the discretion to award compensation for past family attendant care under exceptional circumstances even in cases where prior approval has not been requested, so long as such care is prescribed by a physician. The language of the portion of Chapter 14 dealing with special duty nursing has been revised by the Commission since the ruling in Hatchett v. The Hitchcock Corp., 240 N.C. 591,83 S.E.2d 539 (1954) in which the Court denied payment of past attendant care services provided by the worker's mother because the Commission had not ordered or given permission that such services be rendered. The current language allows approval of past family attendant care "in unusual cases where the treating physician certifies it is required. . . ." I believe that the unusual circumstances in both Ruiz v. Belk MasonryCo., Inc., 148 N.C. App. 675, 559 S.E.2d 249, disc. rev. denied,356 N.C. 166, 568 S.E.2d 610 (2002) and London v. Snak Time Catering,Inc., 136 N.C. App. 473, 525 S.E.2d 203, disc. rev. denied,352 N.C. 589, 544 S.E.2d 781 (2000) justified the Commission's award of compensation for past attendant care services provided by family members. Also, in both of those cases, physicians had recommended attendant care during the past periods in question, but defendants had refused to authorize the care.

Shirley Shulenberger, plaintiff's mother, has provided extensive attendant care to plaintiff since his horrific accident. Defendants have benefited greatly from Mrs. Shulenberger's devotion to her son in that they have not been required to pay a facility or agency to provide this care to plaintiff. The only compensation Mrs. Shulenberger received was the reimbursement she was paid to accompany plaintiff to his doctors' appointments, and admittedly this compensation was greater than what is normally paid for similar services.

However, although Mrs. Shulenberger was providing extensive attendant care after she was no longer working outside the home in July 2003, neither Dr. Lyerly nor any other treating physician had ordered that plaintiff receive more than four hours of care per day, five days a week. Therefore, because the certification by a physician that attendant care was necessary was missing until the depositions of the health care providers were taken, I believe that the majority reached a very equitable result to begin payment of attendant care as of the date the Form 33 was filed, which was the first time plaintiff had requested payment of additional attendant care beyond the four hours per day, five days a week already provided by defendants.

This 16th day of November, 2006.

S/___________________ LAURA KRANIFELD MAVRETIC COMMISSIONER