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NC: Commission Erred in Refusing Retroactive Attendant Care Services Reimbursement to Spouse

November 15, 2013 (3 min read)

In a divided decision, the Supreme Court of North Carolina recently held that the state’s Industrial Commission may not bar family members from receiving compensation for attendant care services provided to an injured employee before obtaining approval for those services from the Commission pursuant to its Medical Fee Schedule as long as the services are medically reasonable and necessary. Reversing in part a decision by the state’s Court of Appeals that relied on the supreme court’s earlier decision in Hatchett v. Hitchcock Corp., 240 N.C. 591, 83 S.E.2d 539 (1954), the majority of the high court indicated that Hatchett had been based on the fee schedule (which has remained largely unchanged) and the statutory language of former N.C. Gen. Stat. § 97–26, under which an employer was liable for medical treatment “when ordered by the Commission.” The majority indicated that in Hatchett, the high court had reasoned that these “plain and explicit words” meant that the plaintiff’s mother should not be compensated for her attendant care services because the Commission had not approved the care nor had the plaintiff asked for such an approval. The majority pointed out, however, that N.C. Gen. Stat. § 97–26 had been completely rewritten in 1994, removing the “when ordered by the Commission” language and replacing it with language requiring the Commission to adopt fee schedules and outlining the procedures and standards for doing so. According to the majority, the statutory basis for the decision in Hatchett no longer existed, and, in fact, no statutory basis existed for the current fee schedule. While good policy reasons might exist for the prerequisites created here in the Schedule, the majority held that the matter was a legislative determination, not one to be made by the Commission without statutory authorization.

Reported by Thomas A. Robinson, J.D.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

See Mehaffey v. Burger King, 2013 N.C. LEXIS 1161 (Nov. 8, 2013) [2013 N.C. LEXIS 1161 (Nov. 8, 2013)]

See generally Larson’s Workers’ Compensation Law, § 94.03 [94.03]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.



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