Heard in the Court of Appeals May 9, 2013.
Counsel Amended May 15, 2014.
North Carolina Industrial Commission. I.C. No. 091464.
Mr. R. James Lore, Primary Attorney, Attorney at Law, Cary, NC. for Plaintiff-Appellant - Tinajero, Santos.
Stiles, Byrum & Horne, L.L.P., Charlotte, NC, by Mr. Henry C. Byrum, Jr., Primary Attorney, Attorney at Law, for Appellant - Balfour Beatty Infrastructure, Inc., et al.
Mr. Ralph Perales, Primary Attorney, Attorney at Law, PERALES & FERNANDEZ, LLP, Atlanta, GA.
GEER, Judge. Judge ELMORE concurs. Judge DILLON concurs in part and dissents in part by separate opinion.
Appeal by plaintiff and defendants from opinions and
awards entered by the North Carolina Industrial Commission on 13 September 2010
and 16 October 2012.
Plaintiff Santos Tinajero and defendants Balfour Beatty Infrastructure, Inc. and Zurich American Insurance Company each appeal from opinions and awards entered by the North Carolina Industrial Commission arising out of Mr. Tinajero's admittedly compensable injury by accident that resulted in Mr. Tinajero's being a quadriplegic. The primary issue on appeal is whether the Commission properly required defendants to pay the rental cost of reasonable handicapped accessible housing for Mr. Tinajero.
Applying Derebery v. Pitt Cnty. Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986), and Espinosa v. Tradesource, Inc., __ N.C.App. __, 752 S.E.2d 153 (2013), we hold that the Commission did not abuse its discretion in making this award given that (1) Mr. Tinajero had no dwelling of his own that could be renovated to provide handicapped accessible housing, (2) defendants had continuously paid the full cost of housing for Mr. Tinajero since his injury by accident so long as he resided in a skilled nursing home or long-term care facility, and (3) the Commission found that living in such facilities was not in Mr. Tinajero's medical best interest. The Commission was free to conclude that defendants should not be allowed to condition their payment of Mr. Tinajero's housing costs on his agreeing to live in a facility that the Commission had found, based on competent evidence, was harmful to him physically and mentally and not in his medical best interests.
On 11 August 2008, Mr. Tinajero, an undocumented worker from Mexico, was employed by Balfour Beatty Infrastructure, Inc. While Mr. Tinajero was working on a barge, a crane cable broke and knocked him into the water. Immediately following the accident, Mr. Tinajero was transported to Pitt County Memorial Hospital where he was treated surgically for his injuries. Mr. Tinajero, who was 26 years old at the time of the hearing before the deputy commissioner, had suffered a C4-5 fracture dislocation, leaving him an ASIA A-B quadriplegic.
On 15 August 2008, Mr. Tinajero was transferred to Shepherd Center in Atlanta, Georgia for continuing treatment and rehabilitation. The Shepherd Center provides rehabilitative services for patients with significant neurologic injuries and illnesses, predominately spinal cord and brain injuries. Mr. Tinajero's condition required attendant care 24 hours per day, seven days per week.
Mr. Tinajero remained at the Shepherd Center until 5 December 2008. Mr. Tinajero's nurse case manager was unable to locate an appropriate apartment, but recommended against Mr. Tinajero's being placed in a nursing home upon his discharge from Shepherd Center because, in her experience, such a setting reinforces a " sick" mentality and leads to depression. A subsequent nurse case manager ultimately found one assisted
living facility willing to accept someone his age, Briarcliff Haven. Mr. Tinajero was then placed in the sub acute rehabilitation unit at Briarcliff Haven beginning on 5 December 2008.
On 27 February 2009, Mr. Tinajero filed an " Emergency Motion for Medical Treatment" with the Commission. In the motion, Mr. Tinajero asserted that his placement at Briarcliff Haven was not a suitable living environment and that any delay in relocating him would unjustifiably jeopardize his health. Mr. Tinajero requested that the Commission order defendants to pay for his placement in a suitable apartment with 24-hour attendant care.
In response to Mr. Tinajero's motion, the Commission issued an order on 20 March 2009 in which it referred the case to the regular docket for an expedited evidentiary hearing. Before the scheduled hearing date, the parties submitted a " Pre-Trial Agreement guided by Rule 16 of the North Carolina Rules of Civil Procedure." In the pre-trial agreement, the parties set forth a number of issues to be determined at the subsequent hearing. Included among these issues, Mr. Tinajero requested a determination whether defendants were obligated to provide adaptive housing, as well as what type of housing and attendant care were required. On 10 April 2010, Mr. Tinajero, on his own, located an apartment across the street from Shepherd Center and moved into that apartment.
In the hearing before the deputy commissioner, Mr. Tinajero submitted a life care plan created by Michael Fryar. After reviewing Mr. Fryar's credentials, experience, and life care plan, the deputy commissioner determined that the report prepared by Mr. Fryar was not an objective and unbiased assessment of Mr. Tinajero's needs.
The deputy commissioner concluded that Mr. Tinajero was entitled to lifetime workers' compensation benefits. However, the deputy commissioner also determined that " [d]efendants [were] not obligated to purchase, construct or lease adaptive housing for [Mr. Tinajero] . . . ." According to the deputy commissioner, defendants were already providing Mr. Tinajero with suitable housing at Briarcliff Haven, and the medical evidence presented at the hearing failed to establish that it was necessary for Mr. Tinajero to leave the Briarcliff Haven facility.
Mr. Tinajero appealed to the Full Commission. On 13 September 2010, the Commission entered an opinion and award affirming in part, reversing in part, and modifying in part the deputy commissioner's opinion and award. With respect to Mr. Tinajero's housing, the Full Commission determined that Mr. Tinajero's placement at Briarcliff Haven was not appropriate in that it endangered his physical and psychological health. The Full Commission found that the evidence supported Mr. Tinajero's concerns about infections due to inadequate medical care, including medical orders not being followed regarding the timeliness of required intermittent catheterizations. Because of Briarcliff Haven's inability to assure that they could properly follow Mr. Tinajero's medical orders and timely perform the catheterizations, defendants had to contract with outside nurses to provide necessary nursing care.
The Full Commission further found that the greater weight of the lay and medical evidence established that living in Briarcliff Haven was having a negative impact on Mr. Tinajero's mental health. Based on the medical evidence, the Full Commission found that " it was in plaintiff's medical best interest for defendants to provide housing suitable for the maximum possible level of independence, which means someplace other than a skilled nursing home or long-term care facility."
The Full Commission found that at the time of his injury by accident, Mr. Tinajero did not own a dwelling, but rather shared a rented apartment with two other people in New Bern, North Carolina. Mr. Tinajero,
therefore, owned no property that could be made handicapped accessible for use by him in his post-injury condition. The Full Commission noted, however, that a 27 May 2010 progress report by his nurse case manager indicated he was living in an apartment. The Full Commission observed that defendants contended " that they provided suitable accommodations for plaintiff at Briarcliff Haven and that they are not obligated to pay for the lease of plaintiff's handicapped accessible apartment," but pointed out " that for many years defendants have in effect paid for the entire cost of plaintiff's housing at both Shepherd Center and Briarcliff Haven ." (Emphasis added.)
The Full Commission, therefore, found:
[B]ecause plaintiff has no dwelling that can be renovated to provide handicapped accessible housing, defendants are responsible for providing handicapped accessible housing for plaintiff. In this case, the greater weight of the evidence shows that plaintiff should be placed in housing that will allow him to have as much independence as possible. Reasonable handicapped accessible housing for plaintiff at this time is an apartment which can accommodate the necessary 24-hour daily attendant care for plaintiff. Although defendants are obligated to pay for the lease of such apartment, the selection of an apartment must be reasonable under the circumstances. An assessment by a certified life care planner of plaintiff's current living quarters is necessary to ascertain whether the apartment is appropriate handicapped accessible housing to accommodate plaintiff's physical needs.
With respect to Mr. Tinajero's request that defendants be required to provide adaptive transportation, the Full Commission found that Mr. Tinajero had never possessed a driver's license or owned a motor vehicle. Since his discharge from Shepherd Center, defendants had provided transportation through a private company for medical visits, therapy, recreation at the Shepherd Center, and social activities. In addition, defendants had assisted Mr. Tinajero in obtaining a pass for the public transportation system in Atlanta. The Full Commission found that two of Mr. Tinajero's doctors considered these transportation options to be reasonable for Mr. Tinajero. The Full Commission, therefore, determined that " [d]efendants are not obligated to purchase a vehicle for plaintiff, but would be obligated to modify any vehicle plaintiff purchases for his own transportation to make it accessible to plaintiff's needs. The Full Commission finds that the transportation services currently being provided plaintiff by defendants are reasonable."
Based on the findings of fact, the Full Commission concluded that Mr. Tinajero was totally disabled and entitled to total disability compensation as well as medical treatment for his lifetime. The Full Commission also ordered that Mr. Tinajero receive attendant care 24 hours per day, seven days per week to be provided by qualified nursing personnel.
With respect to housing, the Full Commission concluded, citing Derebery and Timmons v. N.C. Dep't of Transp., 123 N.C.App. 456, 473 S.E.2d 356 (1996), aff'd per curiam, 346 N.C. 173, 484 S.E.2d 551 (1997) ( Timmons I ):
In this case, because plaintiff owns no dwelling that can be renovated to provide handicapped accessible housing, defendants are responsible for providing handicapped accessible housing for plaintiff. While the case law has held that the provision of ordinary housing is an expense of daily life to be paid from an injured worker's disability compensation, the additional cost of renting handicapped accessible housing is not an ordinary expense and should be borne by defendants, who have up to this point continuously provided accommodated housing for plaintiff at Shepherd Center and Briarcliff Haven since plaintiff's compensable injury by accident . Therefore, defendants shall pay the rental cost of reasonable handicapped accessible housing for plaintiff, which at this time is an apartment which can accommodate the necessary 24-hour daily attendant care for plaintiff.
The Full Commission concluded that " [d]efendants are not required to purchase or lease adaptive transportation for plaintiff or
for his use. McDonald v. Brunswick Elec. Membership Corp., 77 N.C.App. 753, 336 S.E.2d 407 (1985)." Instead, the Full Commission concluded that defendants had already provided reasonable transportation, although if Mr. Tinajero purchased a vehicle, defendants were obligated to modify it to accommodate his disability.
The Full Commission agreed with the deputy commissioner that the " life care plan prepared by Michael Fryar in this case was not an unbiased, objective, fair, and balanced assessment." The Full Commission concluded that defendants were not required to pay for Mr. Fryar's report because it did not constitute a valid " 'rehabilitative service'" within the meaning of N.C. Gen. Stat. § 97-2(19). The Full Commission concluded, however, that Mr. Tinajero was entitled to have defendants pay for the preparation of a life care plan " by a well-qualified and certified life care planner with long-standing experience dealing with catastrophic life care planning. Plaintiff is also entitled to an assessment by the life care planner of his current housing arrangements and whether the apartment is appropriate to accommodate plaintiff's physical needs."
Finally, the Full Commission concluded that " [d]efendants did not defend this claim in an unreasonable manner or without reasonable grounds and, therefore, plaintiff is not entitled to attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1; Sparks v. Mountain Breeze Restaurant, 55 N.C.App. 663, 286 S.E.2d 575 (1982)."
Defendants filed notice of appeal from the opinion and award of the Full Commission, and Mr. Tinajero cross-appealed. This Court dismissed the appeal as interlocutory since complete resolution of the medical issues in the case required, as the Full Commission had concluded, completion of a satisfactory life care plan for Mr. Tinajero. See Tinajero v. Balfour Beatty Infrastructure, Inc., 214 N.C.App. 563, 714 S.E.2d 867, 2011 WL 3570046 (2011) (unpublished).
On remand, the parties agreed to have Susan Caston assess Mr. Tinajero's needs although she was not a certified life care planner. Ms. Caston completed her report on 21 May 2012. Ms. Caston's rehabilitation plan addressed Mr. Tinajero's housing, transportation, and vocational/employment status. Mr. Tinajero filed a motion to depose Ms. Caston on 28 June 2012.
Mr. Tinajero also sought to take the deposition of V. Robert May, III, Chief Executive Officer of the International Commission on Health Care Certification, the international organization that provides accreditation for life care planners. Mr. Tinajero asserted that after the Full Commission had found that Mr. Fryar's life care plan did not conform to industry standards, that life care plan had been submitted to the International Commission on Health Care certification for peer review. According to the motion, the blind evaluation of Mr. Fryar's plan had resulted in its being used as " 'one of our preferred examples'" in Mr. May's presentations. Mr. Tinajero sought Mr. May's deposition for the limited purpose of authenticating the report reviewing Mr. Fryar's life care plan. The Full Commission denied Mr. Tinajero's motion to depose Ms. Caston and Mr. May in its opinion and award entered on 16 October 2012.
Pertinent to this appeal, the Full Commission's 16 October 2012 opinion and award found, based on Ms. Caston's evaluation, that " the geographical location of [Mr. Tinajero's] current apartment adequately [met] his needs to access the community." With respect to parking, the Commission found that " [i]nasmuch as plaintiff cannot legally drive in the United States and does not now own a handicap-accessible vehicle, it is presently irrelevant whether his apartment provides a parking space for him."
As for Mr. Tinajero's housing, the Full Commission found:
Placing plaintiff in a position which maximizes his independence is a goal repeatedly expressed throughout the medical evidence in this case. While plaintiff's current living situation is preferable to a skilled nursing home or long-term care facility, plaintiff cannot reach the maximum possible level of independence in a housing ...