Mehaffey v. Burger King

IN THE SUPREME COURT OF NORTH CAROLINA

No. 24PA12

FILED 8 NOVEMBER 2013

DEWEY D. MEHAFFEY, Employee

v.

BURGER KING,

Employer,

LIBERTY MUTUAL INSURANCE COMPANY,

Carrier

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 718 S.E.2d 720 (2011), affirming in part

and reversing in part an opinion and award filed on 18 August 2010 by the North

Carolina Industrial Commission. Heard in the Supreme Court on 14 November 2012.

Sumwalt Law Firm, by Mark T. Sumwalt and Vernon Sumwalt; and Grimes

Teich Anderson LLP, by Henry E. Teich, for plaintiff-appellant.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by M. Duane Jones and

Jeremy T. Canipe, for defendant-appellees.

HUDSON, Justice.

This case presents the question whether the Medical Fee Schedule

promulgated by the North Carolina Industrial Commission (Commission) may bar

certain individuals from receiving compensation for attendant care services they

provided before obtaining approval for those services from the Commission. We hold

that the Commission may not do so since such action would exceed the power granted

MEHAFFEY V. BURGER KING

Opinion of the Court

to the Commission by the General Assembly. Because the Court of Appeals enforced

that provision of the Commission’s Medical Fee Schedule, which we conclude was

adopted in excess of the Commission’s authority, we reverse in part the decision of

the Court of Appeals. But because defendants here have challenged the

reasonableness of the timing of plaintiff’s request for approval of attendant care and

the Commission’s findings do not address this issue, we remand for the Commission

to do so.

On 13 August 2007, plaintiff suffered a compensable injury to his left knee

while working as a restaurant manager for defendant Burger King, where he had

been employed for approximately eighteen years. As a result of his injury, plaintiff

underwent a “left knee arthroscopy with a partial medial meniscectomy” at

Transylvania Community Hospital. Plaintiff’s condition failed to improve after

surgery, and he ultimately developed “reflex sympathetic dystrophy” (“RSD”).

Despite undergoing a number of additional procedures, plaintiff continued to suffer

pain. Plaintiff eventually was diagnosed with depression related to the injury and

resulting RSD, and his psychiatrist concluded that it was unlikely plaintiff’s “mood

w[ould] much improve until his pain is under better control.”

Likely due to pain, plaintiff increasingly attempted to limit his movements

following his diagnosis of RSD. By 8 April 2008, plaintiff was using “an assistive

device” to move or walk around. On 21 April 2008, John Stringfield, M.D., plaintiff’s

family physician, prescribed a mobility scooter for plaintiff, and medical records show

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that by 20 June 2008, plaintiff was using a walker. On 18 December 2008, plaintiff

requested a prescription for a hospital bed from Eugene Mironer, M.D., a pain

management specialist with Carolina Center for Advanced Management of Pain, to

whom plaintiff had been referred as a result of his diagnosis with RSD. Dr. Mironer’s

office declined to recommend a hospital bed, instructing plaintiff to see his family

physician instead. That same day plaintiff visited his family physician, Dr.

Stringfield, who prescribed both a hospital bed and a motorized wheelchair.

Since plaintiff’s injury, his wife has assisted him with his daily activities in the

home. Until 14 August 2008, plaintiff’s wife attended to his needs approximately four

hours per day. On 15 August 2008, Mrs. Mehaffey discontinued her outside

employment, and since then she has attended to plaintiff’s needs approximately

sixteen hours per day. In her caregiver role, Mrs. Mehaffey helps “plaintiff out of bed

in the morning, gives him a sponge bath, and assists [him] in dressing.” She also

helps “get [him] onto the scooter and transfers [him] from the scooter to a recliner,

where plaintiff sits most of the day.” She prepares plaintiff’s meals and attends to

his bodily needs. At the end of each day, Mrs. Mehaffey helps “plaintiff dress for bed

and helps him into bed.”

Despite plaintiff’s efforts to limit his activity and movement, the medical

providers plaintiff saw for pain management indicated that he would derive greater

benefit if he attempted to move under his own strength, which would force him to

rehabilitate his injury. James North, M.D., the codirector of pain management at

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Wake Forest Baptist Hospital and plaintiff’s preferred treating physician, “opined

that providing plaintiff with a power wheelchair was counterproductive to his

recovery” because “people using wheelchairs tend to gain weight and avoid using the

extremity that causes their pain, both of which impede[ ] the recovery process.” Dr.

North reasoned that “the less an injured extremity is used, the worse the condition

will become.” Likewise, Dr. North concluded “that there was no scientific or medical

basis for requiring a hospital bed for patients with RSD.” Dr. North’s medical opinion

was echoed by Dr. Mironer. Nonetheless, plaintiff used these mobility aids and

comfort devices, procuring for himself the hospital bed and motorized scooter.

Plaintiff’s family physician and other individuals began to recommend that

plaintiff receive attendant care services. On 9 March 2009, Judy Clouse, a nurse

consultant employed by the Commission, recommended that plaintiff receive eight

hours of attendant care daily, Monday through Friday, from a Certified Nursing

Assistant. On 5 June 2009, Dr. Stringfield recommended that plaintiff have sixteen

hours a day of attendant care services, retroactive to the day plaintiff was diagnosed

with RSD, thereby including the almost two years of attendant care plaintiff’s wife

had already provided. Bruce Holt, a certified life care planner, also opined that

plaintiff “needs attendant care for at least 16 hours per day, seven days a week.”

In light of these recommendations regarding his needs, plaintiff sought a

hearing before the Commission to clarify the extent of medical compensation owed to

him. Defendants denied any failure to pay for necessary medical treatment. Relevant

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for our purposes, plaintiff and defendants disagree whether plaintiff’s wife should be

compensated for the attendant care she provided plaintiff before the Commission

approved her rendering that service. Defendants contend that the Commission’s

Medical Fee Schedule prevents such an award of retroactive compensation to Mrs.

Mehaffey. Plaintiff, on the other hand, views Mrs. Mehaffey’s attendant care services

as simply another component of medical compensation within the meaning of

N.C.G.S. § 97-2(19) (2007), for which defendants are responsible under N.C.G.S. § 97-

25 (2007).

The Commission agreed with plaintiff on this issue, choosing not to follow its

own fee schedule, perhaps in recognition that it was not authorized to deny

reimbursement for these services. First, in an opinion and award filed on 29 January

2010, a deputy commissioner directed defendants to compensate Mrs. Mehaffey for

the “attendant care services rendered to plaintiff at the rate of $12.50 per hour, 16

hours per day and seven days per week, from 15 August 2008, through the present

and continuing until further order of the Commission.” On appeal the Full

Commission affirmed in pertinent part the deputy commissioner’s opinion and award,

concluding that Mrs. Mehaffey’s attendant care services were medical compensation

for which defendants were responsible under sections 97-2(19) and 97-25 of our

General Statutes. In addition, the Full Commission further compensated Mrs.

Mehaffey for the attendant care services previously provided from 15 November 2007

through 14 August 2008, while she was still employed outside the home. For those

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attendant care services the Full Commission awarded compensation for four hours

daily, seven days a week, also at a rate of $12.50 per hour.

The Court of Appeals, relying on our decision in Hatchett v. Hitchcock Corp.,

240 N.C. 591, 83 S.E.2d 539 (1954), reversed the Commission’s decision to provide

compensation for Mrs. Mehaffey’s past attendant care services. Mehaffey v. Burger

King, ___ N.C. App ___, ___, 718 S.E.2d 720, 723-24 (2011). In Hatchett we were

presented with a situation in which the Commission had awarded financial

compensation to an injured worker’s mother under sections 97-25 and 97-26 of our

General Statutes for practical nursing services that she provided to her son without

prior approval from the Commission. 240 N.C. at 592-93, 83 S.E.2d at 540-41.

Ultimately, this Court determined that the Commission’s fee schedule, promulgated

pursuant to the Commission’s rulemaking authority under the Workers’

Compensation Act (the Act), prohibited such an award of compensation for practical

nursing services unless that conduct had been first approved by the Commission. Id.

at 593-94, 83 S.E.2d at 541-42. As a result, we reversed the Commission’s award.

The Court of Appeals reasoned that the outcome in the present case is

controlled by our decision in Hatchett. First, that court observed that the claim for

payment in this case was brought under sections 97-25 and 97-26 of our General

Statutes, the same provisions that were at issue in Hatchett. Mehaffey, ___ N.C. App.

at ___, 718 S.E.2d at 724. Additionally, the Court of Appeals explained that the

language of the rule at issue in Hatchett, which said, “Fees for practical nursing

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service by a member of claimant’s family or anyone else will not be honored unless

written authority has been obtained in advance,” is nearly identical to the language

now found in the Commission’s Medical Fee Schedule. Id. at ___, 718 S.E.2d at 723-

24 (citations and quotation marks omitted). As a result, the Court of Appeals

concluded that the Commission should have followed the holding of Hatchett and thus

declined to award compensation for Mrs. Mehaffey’s past provision of attendant care

services. Id. at ___, 718 S.E.2d at 724.

We allowed plaintiff’s petition for discretionary review to consider the Court of

Appeals’ decision regarding the Commission’s award of compensation for past

attendant care services provided before approval was obtained from the Commission.

Mehaffey v. Burger King, ___ N.C. ___, 726 S.E.2d 177 (2012). Plaintiff contends that

the Court of Appeals erred by following the holding of Hatchett. Instead, plaintiff

asserts that the Commission does not have statutory authority under section 97-26(a)

to prohibit compensation of an immediate family member for the provision of

attendant care services unless prior authorization was obtained. Defendants, on the

other hand, contend that the Court of Appeals properly followed our decision in

Hatchett. Moreover, defendants argue that allowing members of an injured

employee’s immediate family to be compensated for providing attendant care without

the Commission’s having first approved that service would contravene one of the

underlying purposes of the Act, which is to control medical expenses. To resolve this

dispute we turn first to the provisions of the Act.

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Generally speaking, the Act provides for the compensation of employees who

sustain workplace injuries. N.C.G.S. §§ 97-1 to -101.1 (2011). The Act places upon

an employer the responsibility to furnish “medical compensation” to an injured

employee. Id. § 97-25. At the time of plaintiff’s injury, the Act defined “medical

compensation” as:

Medical Compensation. – The term “medical

compensation” means medical, surgical, hospital, nursing,

and rehabilitative services, and medicines, sick travel, and

other treatment, including medical and surgical supplies,

as may reasonably be required to effect a cure or give relief

and for such additional time as, in the judgment of the

Commission, will tend to lessen the period of disability; and

any original artificial members as may reasonably be

necessary at the end of the healing period and the

replacement of such artificial members when reasonably

necessitated by ordinary use or medical circumstances.

Id. § 97-2(19) (2007). The Act’s catch-all provision for “other treatment” has been

understood to include attendant care services. See, e.g., Ruiz v. Belk Masonry Co.,

148 N.C. App. 675, 681, 559 S.E.2d 249, 253-54 (upholding an award of attendant

care benefits), appeal dismissed and disc. rev. denied, 356 N.C. 166, 568 S.E.2d 610

(2002). Moreover, the parties do not dispute that attendant care services fall under

the version of section 97-2(19) in effect when plaintiff was injured and that the

current version of that statute expressly includes “attendant care services,” N.C.G.S.

§ 97-2(19) (2011).

The Act is designed also to control medical costs. Indeed, as we said in

Charlotte-Mecklenburg Hospital Authority v. North Carolina Industrial Commission,

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“The General Assembly enacted the Act in 1929 to both provide swift and sure

compensation to injured workers without the necessity of protracted litigation, and

to insure a limited and determinate liability for employers.” 336 N.C. 200, 203, 443

S.E.2d 716, 718-19 (1994) (citation, alteration, and internal quotation marks

omitted)), superseded by statute, The Workers’ Compensation Reform Act of 1994, ch.

679, sec. 2.3, 1993 N.C. Sess. Laws (Reg. Sess. 1994) 394, 398 (amending N.C.G.S. §

97-26(b) effective 1 October 1994). The latter is essentially a trade-off for the former.

In keeping with its desire to control medical costs, in 1994 the legislature

directed the Commission to “adopt a schedule of maximum fees for medical

compensation,” which would enable employers more accurately to predict their

potential financial exposure following an employee’s injury. The Workers’

Compensation Reform Act of 1994, ch. 679, sec. 2.3, 1993 N.C. Sess. Laws (Reg. Sess.

1994) 394, 397 (codified at N.C.G.S. § 97-26(a)). Before that time an employer’s

pecuniary liability was tethered to the costs that prevailed “in the same community

for similar treatment of injured persons of a like standard of living when such

treatment is paid for by the injured person.” Id. Departing from its previous

standard, the General Assembly instructed that this new Medical Fee Schedule “shall

be adequate to ensure that (i) injured workers are provided the standard of services

and care intended by this Chapter, (ii) providers are reimbursed reasonable fees for

providing these services, and (iii) medical costs are adequately contained.” Id. The

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adoption of a Medical Fee Schedule aids in fulfilling a purpose of the Act by indicating

to employers the amount of their potential financial exposure.

The central issue in the case sub judice is whether the Commission exceeded

its authority in promulgating a provision of its Medical Fee Schedule to create a

prerequisite to reimbursement for certain care. To answer this question, like all

similar questions, we must ascertain whether the General Assembly authorized the

administrative body—here the Industrial Commission—to undertake the challenged

conduct. E.g., High Rock Lake Partners, LLC v. N.C. DOT, ___ N.C. ___, ___, 735

S.E.2d 300, 303-04 (2012). Administrative agencies, as creatures of statute, may act

only as authorized by the legislature. In re Broad & Gales Creek Cmty. Ass’n, 300

N.C. 267, 280, 266 S.E.2d 645, 654-55 (1980) (citations omitted). As an

administrative agency, the Commission must act consistently with the intent of the

General Assembly. See, e.g., Gregory v. W.A. Brown & Sons, 363 N.C. 750, 763-64,

688 S.E.2d 431, 440 (2010). A provision of the Commission’s Medical Fee Schedule

that is contrary to our General Statutes is, as a result, without effect. Forrest v. Pitt

Cnty. Bd. of Educ., 100 N.C. App. 119, 125-28, 394 S.E.2d 659, 662-64 (1990), aff’d

per curiam, 328 N.C. 327, 401 S.E.2d 366 (1991).

We understand the difficulty in monitoring home health care, especially when

furnished by a family member. In an apparent effort to address this issue, the

Commission adopted Section 14 of the Medical Fee Schedule, which states in

pertinent part:

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Except in unusual cases where the treating physician

certifies it is required, fees for practical nursing services by

members of the immediate family of the injured will not be

approved unless written authority for the rendition of such

services for pay is first obtained from the Industrial

Commission.

While good policy reasons may exist for the prerequisites created here in the

Schedule, this matter is a legislative determination, not one to be made by the

Commission without statutory authorization. Neither section 97-26(a) nor any other

provision in our General Statutes grants the Commission the power to create such a

requirement. See N.C.G.S. § 97-26(a). In fact, the legislature explicitly stated that

the Commission’s Medical Fee Schedule “shall . . . ensure that . . . providers are

reimbursed reasonable fees for” their services. Id. And as the enabling legislation

indicates, the fee schedule is designed to facilitate uniformity and predictability in

the medical costs employers are required to pay under the Act. See Ch. 679, sec. 2.3,

1993 N.C. Sess. Laws (Reg. Sess. 1994) at 397. Section 97-26(a) of our General

Statutes does not give the Commission the authority to mandate that certain

attendant care service providers may not be compensated unless they first obtain

approval from the Commission before rendering their assistance. N.C.G.S. § 97-

26(a). As a result, we are unable to permit Section 14 of the Commission’s Medical

Fee Schedule to prevent the award of retroactive compensation for the attendant care

services Mrs. Mehaffey provided her husband. See Forrest, 100 N.C. App. at 125, 394

S.E.2d at 662 (noting that the Commission’s Medical Fee Schedule is “superseded by”

our General Statutes).

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We are mindful that this result may appear on its face to be inconsistent with

our decision in Hatchett. When, however, a change occurs in the law upon which a

prior decision rests, this Court must look afresh at the questioned provision. See

Patterson v. McLean Credit Union, 491 U.S. 164, 173, 109 S. Ct. 2363, 2370, 105 L.

Ed. 2d 132, 148 (1989) (“In cases where statutory precedents have been overruled,

the primary reason for the Court’s shift in position has been the intervening

development of the law, through either the growth of judicial doctrine or further

action taken by Congress.”), superseded on other grounds by statute, Civil Rights Act

of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (enacting 42 U.S.C. § 1981(b)), as

recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S. Ct. 1836, 158

L. Ed. 2d 645 (2004). Our decision in Hatchett was based on the fee schedule (which

has remained largely unchanged) and the statutory language of former section 97-

26. Under the statutory language at that time, an employer was liable for medical

treatment “when ordered by the Commission.” N.C.G.S. § 97-26 (1950). Our decision

in Hatchett emphasized that statutory language: “G.S. 97-26 provides for the

pecuniary liability of the employer for medical, surgical, hospital service or other

treatment required, when ordered by the Commission.” Hatchett, 240 N.C. at 594, 83

S.E.2d at 542. We 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. Id. at 594, 83 S.E.2d at 542. It appears that we relied heavily on the

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statutory language to determine that the Commission must be bound by its fee

schedule. Id. However, in 1994 section 97-26 was completely rewritten, 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. Ch. 679, sec 2.3, 1993 N.C. Sess. Laws at 397. Therefore, the

statutory basis for the decision in Hatchett no longer exists, and, as stated above, no

statutory basis exists for the current fee schedule.1

Nonetheless, we are unable to affirm the Commission’s award of compensation

for Mrs. Mehaffey’s past attendant care services. As plaintiff concedes, to receive

compensation for medical services, an injured worker is required to obtain approval

from the Commission within a reasonable time after he selects a medical provider.

Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 593, 264 S.E.2d 56, 63 (1980). If

plaintiff did not seek approval within a reasonable time, he is not entitled to

reimbursement. Here, defendants have challenged the reasonableness of the timing

of plaintiff’s request, and the opinion and award filed by the Full Commission does

not contain the required findings and conclusions on this issue. Accordingly, we

remand to the Court of Appeals for further remand to the Commission to make the

necessary findings of fact and conclusions of law on this issue.

1Going forward, under the 2011 revisions to the Workers’ Compensation Act, section

97-2(19) defines “Medical Compensation” to include “attendant care services prescribed by a

health care provider authorized by the employer or subsequently by the Commission.”

N.C.G.S. § 97-2(19) (2011) (emphasis added).

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The Court of Appeals reversed in pertinent part the opinion and award entered

by the Full Commission, which provided retroactive compensation for Mrs.

Mehaffey’s attendant care services to her husband. Because that court relied on a

provision of the Commission’s Medical Fee Schedule that is not authorized by our

legislature, we reverse the decision of the Court of Appeals on that issue. We remand

this matter to the Court of Appeals for further remand to the Commission for

additional proceedings consistent with this opinion.

REVERSED IN PART AND REMANDED.

Justice BEASLEY did not participate in the consideration or decision of this

case.

Justice NEWBY dissenting in part and concurring in part.

“It is not debatable that the Workmen’s Compensation Act is to be liberally

construed to the end that the benefits thereof should not be denied upon technical,

narrow and strict interpretation. The rule of liberal construction cannot be used to

read into the Act a meaning alien to its plain and unmistakable words. We should

not overstep the bounds of legislative intent, and make by judicial legislation our

Workmen’s Compensation Act an Accident and Health Insurance Act.” Hatchett v.

Hitchcock Corp., 240 N.C. 591, 593, 83 S.E.2d 539, 541 (1954) (citations and internal

quotation marks omitted). Through “judicial legislation” the majority has done just

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NEWBY, J., dissenting in part and concurring in part

that, expanding the potential liability owed by employers across our state. In so

doing, the majority strikes down a reasonable attempt by the Industrial Commission

to regulate costs that has existed for almost eighty years. The majority opinion

circumvents the doctrine of stare decisis by “overstep[ping] the bounds of legislative

intent,” effectively overruling Hatchett v. Hitchcock Corporation. Id. Consequently,

I must respectfully dissent in part.

According to the majority, an injured employee is entitled to compensation for

unauthorized health care furnished by a family member despite a provision of the

Industrial Commission’s Medical Fee Schedule that explicitly requires preapproval.

Mehaffey v. Burger King, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2013). The

preapproval requirement is a long-established regulation designed to ensure

predictability and to control medical costs while balancing employee access to care.

Even so, the majority concludes that by the 1994 revisions to the Workers’

Compensation Act, the General Assembly intended to remove the Commission’s

power to promulgate this historic prerequisite. Id. at ___, ___ S.E.2d at ___.

Specifically, the majority relies on the elimination of the phrase “when ordered by the

Commission” from section 97-26. That statute now states that the Medical Fee

Schedule “shall be adequate to ensure that (i) injured workers are provided the

standard of services and care intended by this Chapter, (ii) providers are reimbursed

reasonable fees for providing these services, and (iii) medical costs are adequately

contained.” N.C.G.S. § 97-26(a) (2011). The 1994 revisions further instructed the

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NEWBY, J., dissenting in part and concurring in part

Commission to adopt “rules and guidelines” for the provision of “attendant care.” Id.

§ 97-25.4(a) (2011). Those “rules and guidelines shall ensure that injured employees

are provided the services and care intended by this Article and that medical costs are

adequately contained.” Id. Notwithstanding this explicit mandate to control costs,

the majority holds that the 1994 revisions evidence a clear legislative intent to strip

the authority of the Industrial Commission to require preapproval for familial care.

Mehaffey, ___ N.C. at ___, ___ S.E.2d ___. I disagree.

As an administrative agency, the Commission “possesses only those powers

expressly granted to it by our legislature or those which exist by necessary

implication in a statutory grant of authority.” High Rock Lake Partners, LLC v. N.C.

DOT, 366 N.C. 315, 319, 735 S.E.2d 300, 303 (2012) (citation and quotation marks

omitted). To determine the extent of an agency’s power, “we apply the enabling

legislation practically so that the agency’s powers include all those the General

Assembly intended the agency to exercise,” and “[w]e give great weight to an agency’s

interpretation of a statute it is charged with administering.” Id. (citations omitted).

When reading such statutes, we also must consider legislative acquiescence; in other

words, “[t]he failure of a legislature to amend a statute which has been interpreted

by a court is some evidence that the legislature approves of the court’s interpretation.”

Young v. Woodall, 343 N.C. 459, 462-63, 471 S.E.2d 357, 359 (1996); see also State v.

Ellison, ___ N.C. ___, ___, 738 S.E.2d 161, 164 (2013) (approving of legislative

acquiescence (citations omitted)).

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NEWBY, J., dissenting in part and concurring in part

To ascertain the bounds of the Commission’s authority, it is imperative to look

at both the agency’s enabling legislation as well as the long-standing interpretation

it has given to those statutes. The Workers’ Compensation Act generally provides

health care for employees who sustain workplace injuries. N.C.G.S. §§ 97-1 to -101.1

(2011). Ratified in 1929, the Act sought to respond to the “ordinary hazards” implicit

in “the substitution of the factory for the home as a place of labor and the introduction

of power driven machinery with its vast complex of dangerous operations.” N.C.

Indus. Comm’n, The North Carolina Workmen’s Compensation Act, Bull., May 1929,

at 5-6 [hereinafter Bulletin]. Under the Act, an employee’s right to compensation and

an employer’s resulting liability are predicated on “mutual concessions,” in which

“each surrenders rights and waives remedies” otherwise available under the law. Lee

v. Am. Enka Corp., 212 N.C. 455, 462, 193 S.E. 809, 812 (1937). The Act ensures that

employees receive “prompt, reasonable compensation,” but guarantees “limited and

determinate liability for employers.” Radzisz v. Harley Davidson of Metrolina, Inc.,

346 N.C. 84, 89, 484 S.E.2d 566, 569 (1997) (citations omitted).

When an employee seeks treatment from a professional health care provider,

the Workers’ Compensation Act applies in its simplest form. The care furnished

comes at a cost, and the provider expects payment for the services rendered. A much

more challenging situation occurs when the care is provided by an injured employee’s

immediate family. Unlike a professional health care provider, a family member does

not create a bill or medical records as part of an ongoing business and is usually

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NEWBY, J., dissenting in part and concurring in part

expected to furnish a degree of uncompensated care. At some point, however, that

care reaches a threshold, surpassing that which is expected of normal familial duties.

But by its very nature, health care furnished by family members is difficult, if not

impossible, to monitor and always invites the questions: When do the services cross

the line from being merely part of the duties of a family to becoming compensable

medical care? And who decides? This intersection tests the delicate balance between

access to care and predictable medical costs, the foundation of the Workers’

Compensation Act.

Early in its existence, the Industrial Commission, the state agency charged

with administering the Workers’ Compensation Act, enacted a series of safeguards

designed to protect the financial well-being of those who must care for their loved

ones following a workplace accident. These safeguards likewise ensured that

employers are not wrongfully burdened with paying for care that is implicitly part of

the responsibilities of a family or, worse, fraudulent. As the majority concedes, these

procedural protections have “remained largely unchanged,” Mehaffey, ___ N.C. at ___,

___ S.E.2d at ___, and consistent over the better part of the last century.

In the Act’s infancy, the Fee Schedule was quite vague on this issue. For

example, in 1931 the Fee Schedule made no distinction for familial care, merely

stating that “[c]harges for special nursing will be approved in those cases only where,

and for such time as, the patient’s condition actually requires such attention.”

Bulletin, Sept. 1931, at 9 (Medical and Hospital Fee Schedule). Shortly thereafter,

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NEWBY, J., dissenting in part and concurring in part

the Commission began including language that reflected the difficulty in managing

care furnished by an employee’s immediate family. The first iterations of the

preapproval requirement were not limited to family members alone, but included

“any one” who acted as a practical nurse. In 1936, for instance, the Fee Schedule

provided that “[f]ees for practical nursing service by a member of claimant’s family or

any one else will not be honored unless written authority has been obtained in

advance.” N.C. Indus. Comm’n, Medical and Hospital Fee Schedule 10 (1936).

The language of the 1945 Fee Schedule, at issue in Hatchett, was nearly

identical, stating that “[f]ees for practical nursing service by a member of claimant’s

family or any one else will not be honored unless written authority has been obtained

in advance.” N.C. Indus. Comm’n, Medical, Dental, Nursing and Hospital Fees 15

(1945). Nonetheless, in Hatchett the Commission chose to ignore its own Fee

Schedule and awarded financial compensation to an injured worker’s mother for

attendant care services that she provided to her son without prior approval from the

Commission. 240 N.C. at 592-93, 83 S.E.2d at 540-41. On appeal, the defendants

argued that the Fee Schedule controlled, prohibiting retroactive payments for the

plaintiff’s care. We agreed, striking down the award for lack of preapproval. Id. at

594-95, 83 S.E.2d at 542-43. This Court determined that the Fee Schedule,

promulgated pursuant to the Commission’s authority under the Workers’

Compensation Act, prohibited such an award of compensation for a family member

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MEHAFFEY V. BURGER KING

NEWBY, J., dissenting in part and concurring in part

providing attendant care services unless that conduct had been first approved by the

Commission. Id. at 593-94, 83 S.E.2d at 541-42.

As the Fee Schedule was tested by different and unique fact patterns related

to familial care, the Commission continued to fine-tune the provision’s language. By

1958 the Commission omitted “any one” and introduced a degree of flexibility by

adding the word “ordinarily.” At that time the Fee Schedule required that “[f]ees for

practical nursing service by a member of the immediate family of the injured person

will not ordinarily be approved unless written authority for the rendition of such

services for pay is first obtained from the Industrial Commission.” N.C. Indus.

Comm’n, Medical, Dental, Nursing, and Hospital Fees 28 (1958).

Following the legislature’s 1994 revision of the Workers’ Compensation Act

that directed the Commission to adopt a Medical Fee Schedule that balances costs

with access to care, the Commission again turned to the existing preapproval

requirement, now section 14 of the Medical Fee Schedule. As it has for almost eighty

years, that rule seeks to foster predictability and reduce the costs associated with

home health care, stating that:

When deemed urgent and necessary by the attending

physician, special duty nurses may be employed. Such necessity

must be stated in writing when more than seven days of nursing

services are required.

....

Except in unusual cases where the treating physician certifies

it is required, fees for practical nursing services by members of

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MEHAFFEY V. BURGER KING

NEWBY, J., dissenting in part and concurring in part

the immediate family of the injured will not be approved unless

written authority for the rendition of such services for pay is first

obtained from the Industrial Commission.

N.C. Indus. Comm’n, Medical Fee Schedule: Section 14 (2012). Therefore, according

to the Commission’s own terms, for a family member to receive payment for providing

attendant care, the services generally must be preapproved in writing by the

Commission. Yet, in keeping with the Workers’ Compensation Act’s mandate to

ensure reasonable access to care, an injured employee may bypass Commission

preapproval in unusual cases by first obtaining certification from the treating

physician that the care provided by family members is required and then procuring

the Commission’s approval within a reasonable time, see Mehaffey, ___ N.C. at ___,

___ S.E.2d at ___ (“As plaintiff concedes, to receive compensation for medical services,

an injured worker is required to obtain approval from the Commission within a

reasonable time after he selects a medical provider.” (citation omitted)). In either

situation, however, the Fee Schedule fulfills the statutory directive of controlling

costs and promoting predictability while leaving employees reasonable access to

necessary care.

Like the Fee Schedule itself, the statutes undergirding the preapproval

requirement have seen little change in the years since we decided Hatchett. For

example, N.C.G.S. § 97-25, the statute upon which both the claims in this case and

those in Hatchett are founded, generally reads the same, stating that compensation

“shall be provided by the employer.” Compare N.C.G.S. § 97-25 (1950), with id. § 97-

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MEHAFFEY V. BURGER KING

NEWBY, J., dissenting in part and concurring in part

25 (2007). Further, when we decided Hatchett the relevant subsection of N.C.G.S. §

97-90 was nearly identical to its current version, reading that “no physician shall be

entitled to collect fees from an employer or insurance carrier until he has made the

reports required by the Industrial Commission in connection with the case.” Id. § 97-

90(a) (1950). That same statute now provides in part that “no physician or hospital

or other medical facilities shall be entitled to collect fees from an employer or

insurance carrier until he has made the reports required by the Commission in

connection with the case.” Id. § 97-90(a) (2011). Moreover, the Commission’s rule

making authority under N.C.G.S. § 97-80 has likewise withstood the test of time,

requiring the agency to adopt rules consistent with the Workers’ Compensation Act.

Compare id. § 97-80(a) (2011) (“The Commission shall adopt rules, in accordance with

Article 2A of Chapter 150B of the General Statutes and not inconsistent with this

Article, for carrying out the provisions of this Article.”), with id. § 97-80 (1950) (“The

Commission may make rules, not inconsistent with this article, for carrying out the

provisions of this article.”). Consequently, the doctrine of stare decisis directs that

our reasoning in Hatchett and our application of the Commission’s Fee Schedule in

that case control here.

Yet, attempting to distinguish Hatchett from the case at hand, the majority

seizes upon the revision to N.C.G.S. § 97-26 to nullify the preapproval requirement.

This result apparently relies solely on the General Assembly’s later “removing” of the

phrase “when ordered by the Commission,” which was part of the statute when we

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MEHAFFEY V. BURGER KING

NEWBY, J., dissenting in part and concurring in part

decided Hatchett. Mehaffey, ___ N.C. at ___, ___ S.E.2d at ___. Perhaps the majority’s

analysis would be reasonable if we were faced with a surgical extraction of these five

words only, but in reality the entire statute, along with many other provisions of the

Workers’ Compensation Act, was revised in 1994. Though the language changed, the

majority agrees that the statute’s purpose remained intact: to “control medical costs”

and to “enable employers more accurately to predict their potential financial exposure

following an employee’s injury.” Id. at ___, ___ S.E.2d at ___. After further

emphasizing that “[t]he adoption of a Medical Fee Schedule aids in fulfilling a

purpose of the Act by indicating to employers the amount of their potential financial

exposure,” id. at ___, ___ S.E.2d at ___, why would the majority then strike down a

specific provision that unequivocally was enacted with that purpose in mind?

The majority’s mischaracterization of this revision to N.C.G.S. § 97-26 as

evidence of legislative intent unreasonably parses a statute that previously

interposed a sensible balance between access to care and cost containment. Now, the

majority has effectively removed the cost containment provision. Striking the

preapproval requirement, a proven method of ensuring “uniformity and

predictability,” Mehaffey, ___ N.C. at ___, ___ S.E.2d at ___, and guaranteeing that

“medical costs are adequately contained,” N.C.G.S. § 97-26(a), did not result from

actions by our General Assembly. And, this Court should not pass judgment on

policy. See Home Sec. Life Ins. Co. v. McDonald, 277 N.C. 275, 285, 177 S.E.2d 291,

298 (1970) (concluding that “questions as to public policy are for legislative

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MEHAFFEY V. BURGER KING

NEWBY, J., dissenting in part and concurring in part

determination” (citation omitted)); State v. Barksdale, 181 N.C. 621, 626, 107 S.E.

505, 508 (1921) (“It is [the Court’s role] to construe the laws and not to make them.”).

Since first recognizing the challenge of managing home health care furnished

by immediate family members, the Commission has interpreted the Workers’

Compensation Act to allow the agency to require preapproval for such services.

Nevertheless, the majority affords no weight to the Commission’s interpretation—the

Fee Schedule—which we approved in Hatchett and the General Assembly accepted

for decades. If anything, the 1994 revisions to the Workers’ Compensation Act

actually bolstered the Commission’s authority. An examination of the current version

of section 97-26 makes clear that the power to require preapproval of these services

is well within a practical reading of the legislature’s mandate to adopt a Fee Schedule

that ensures “(i) injured workers are provided the standard of services and care

intended by this Chapter, (ii) providers are reimbursed reasonable fees for providing

these services, and (iii) medical costs are adequately contained.” N.C.G.S. § 97-26(a).

Moreover, the extent of the Commission’s authority is even more evident when

considered in light of the long history of the preapproval requirement in conjunction

with the plain and unambiguous language of section 97-25.4(a) instructing the

Commission to adopt “rules and guidelines” for the provision of “attendant care” that

“shall ensure that injured employees are provided the services and care intended by

this Article and that medical costs are adequately contained.” Id. § 97-25.4(a).

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MEHAFFEY V. BURGER KING

NEWBY, J., dissenting in part and concurring in part

As a result, I would hold that Section 14 of the Medical Fee Schedule is

consistent with the current statutory scheme and that the Commission was thereby

bound to apply it. Accordingly, for an employee to receive compensation for attendant

care when provided by immediate family members, that employee must obtain either

approval from the Commission before receiving treatment or, in unusual cases only,

certification from the employee’s treating physician that the care provided is

required.

In this instance, the parties agree that plaintiff failed to obtain preapproval

from the Commission before receiving attendant care from his wife. Thus, under its

own Fee Schedule, the Commission should have denied plaintiff’s reimbursement

request unless this case presents an “unusual” situation and plaintiff’s treating

physician certified that the care furnished was required. Based on my review of the

record, however, I am unable to make such a determination. I cannot determine, for

example, why the Commission chose to depart from its own general requirements,

whether the Commission believed this to be an “unusual” case, if plaintiff’s treating

physician certified plaintiff’s wife’s care was required, when such certification

occurred, or if plaintiff sought Commission approval within a reasonable time. Most

striking, the Commission’s opinion and award ignores Section 14 of the Fee Schedule

altogether, neither mentioning it nor alluding to its application to this case.

Therefore, I would remand this matter to the Commission for further proceedings to

consider application of the Fee Schedule and the preapproval requirement.

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MEHAFFEY V. BURGER KING

NEWBY, J., dissenting in part and concurring in part

The majority claims to “understand the difficulty in monitoring home health

care, especially when furnished by a family member,” yet removes the authority from

the Commission to address this very real challenge. Mehaffey, ___ N.C. at ___, ___

S.E.2d at ___. In the name of construing a statute designed “to control medical costs,”

id. at ___, ___ S.E.2d at ___, the majority instead has increased significantly

employers’ exposure to potential liability. Because the majority’s analysis runs afoul

of one of the core aspirations of the Workers’ Compensation Act—predictability—and

because I believe our reasoning in Hatchett remains controlling, I respectfully dissent

in part.

I concur with the majority’s conclusion that “to receive compensation for

medical services, an injured worker is required to obtain approval from the

Commission within a reasonable time after he selects a medical provider.” Mehaffey,

___ N.C. at ___, ___ S.E.2d at ___ (citation omitted).

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