An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA12-1238
                       NORTH CAROLINA COURT OF APPEALS

                                  Filed: 3 June 2014


JOSEPH E. BURROUGHS, Employee,
     Plaintiff,

      v.                                      North Carolina Industrial
                                              Commission
                                              I.C. No. 584372
LASER RECHARGE OF CAROLINAS, INC.,
Employer, and NORGUARD INSURANCE
COMPANY, Carrier,
     Defendants.


      Appeal by defendants from opinion and award entered 27 June

2012 by the Full Commission of the North Carolina Industrial

Commission.     Heard in the Court of Appeals 8 April 2014.


      Lennon, Camak & Bertics, PLLC, by Michael W. Bertics and S.
      Neal Camak, for plaintiff-appellee.

      Teague Campbell Dennis & Gorham, L.L.P., by John A. Tomei,
      for defendants-appellants.


      HUNTER, Robert C., Judge.


      Laser    Recharge      of    Carolinas,     Inc.,    (“Laser     Recharge”)

together with its insurance carrier Norguard Insurance Company

(collectively “defendants”), appeal from an opinion and award

entered by the Full Commission of the North Carolina Industrial
                                     -2-
Commission    ordering     defendants     to    pay      compensation    for   2,726

hours of attendant care services performed by plaintiff Joseph

E.    Burroughs’s   family     members.        On   appeal,      defendants    argue

that: (1) this case must be remanded so that the Full Commission

may enter findings as to the timeliness of plaintiff’s request

for    attendant    care     compensation;          (2)    certain     aspects    of

plaintiff’s need for attendant care are not compensable as a

matter of law; and (3) the Full Commission erred by awarding

reimbursement to plaintiff directly rather than to the specific

family members who performed the attendant care services.

       After careful review, we reverse and remand to the Full

Commission.

                                  Background

       Defendants   do   not   contest    any       of    the   Full   Commission’s

findings of fact.          Thus, the Full Commission’s findings are

presumed to be supported by competent evidence and are binding

on appeal.    See Chaisson v. Simpson, 195 N.C. App. 463, 470, 673

S.E.2d 149, 156 (2009).          The relevant findings of fact entered

by the Full Commission are as follows:                   Plaintiff began working

for Laser Recharge in 1997 as a delivery driver.                   On 30 November

2005, plaintiff suffered a compensable work-related injury to

his neck which required a multi-level cervical fusion surgery.
                                           -3-
Plaintiff was found to be permanently and totally disabled as a

result of this injury.

      Due to pain in his neck following the initial surgery in

November    2005,    plaintiff      had     trouble    performing     many   of   the

household chores he was accustomed to doing, such as moving

trash to the curb and driving himself to medical appointments.

Defendants provided a transportation service to drive plaintiff

to medical appointments, but the drivers were unreliable, and

defendants    discontinued         this     service     at    plaintiff’s      wife’s

request.     Based    on    the     opinion      of   Dr.   Steven   Prakken    (“Dr.

Prakken”),    plaintiff’s          pain    management       physician,   the      Full

Commission found as fact that plaintiff required two hours of

attendant care per day from 30 November 2005 to 31 May 2006 and

that this attendant care was provided by plaintiff’s wife and

other family members.

      Beginning in the summer of 2006, plaintiff’s health began

to deteriorate.        He no longer felt he could perform routine

household tasks, like yard work.                 He experienced increased pain

emanating    from   his     neck    into    his   arms.      In   September    2007,

plaintiff’s neurosurgeon, Dr. Russell Margraf (“Dr. Margraf”),

recommended additional neck surgery if plaintiff’s condition did

not   improve.       Over    the     next     year,     plaintiff    continued     to
                                            -4-
experience    pain      in    his    neck,        tingling       in    both     hands,      and

weakness in his right hand.                Dr. Prakken opined that during this

period,     plaintiff        required      between       two     and     four    hours      of

attendant    care      per    day.         Based    on    this        opinion,       the   Full

Commission found that from 1 June 2006 to 30 September 2008,

plaintiff required two hours of attendant care per day, and this

care was provided by plaintiff’s wife and other family members.

Specifically,       the      Full    Commission          found     that       “[plaintiff’s

family    members]        performed        tasks    plaintiff          used     to     perform

himself such as yard work, cleaning the gutters, washing the

house and cars, vacuuming and taking out the trash.                                  Plaintiff

was also unable to help his wife with the laundry and cooking,

tasks for which they had previously shared responsibility.”

      Plaintiff      underwent        an     additional          multi-level          cervical

fusion surgery on 7 May 2009.                     From October 2008 through the

date of this procedure, plaintiff was forced to use a cane to

walk due to difficulty with his gait; he also suffered from

urinary   urgency.           Based   on     Dr.     Prakken’s         opinion,       the   Full

Commission found that from 1 October 2008 through 6 May 2009,

plaintiff required three hours of attendant care per day, which

was   provided    by      plaintiff’s        wife    and     other      family        members.
                                               -5-
Plaintiff remained in the hospital until 13 June 2009 after

undergoing the additional surgery on 7 May.

      Following         release     from       the    hospital,         plaintiff          was   no

longer     able      to    perform       any     activities            around        the    house,

including bathing, feeding, dressing, or toileting on his own.

For the time period beginning with plaintiff’s release from the

hospital      and       going     through       31    October          2009,     Dr.       Margraf

prescribed two hours of attendant care per day, five days per

week,    which      defendants         provided.          In     early       2010,     plaintiff

underwent     additional          surgery      to     remove      a    vocal     cord       growth

related to the May 2009 surgery.                     On 30 April 2010, Dr. Prakken

prescribed        two     weeks     of     attendant           care,     which        defendants

provided.      The Full Commission found that during the times when

attendant      caretakers          provided          by     defendants         were        not   at

plaintiff’s home, plaintiff’s wife would constantly monitor him

to   manage    his      medications       and    ensure        that     he     did    not    fall.

Based on Dr. Prakken’s opinion, the Full Commission found that

from 13 June 2009 until the date of the hearing before the

Commission on 1 May 2012 and continuing, plaintiff required four

hours    of   direct       attendant       care       and    eight      hours        of    passive

attendant     care      per     day,    which    has      been    and     continues         to   be

provided by plaintiff’s wife and other family members.
                                         -6-
       Thus, the Full Commission found that plaintiff’s wife and

family members are entitled to reimbursement for the attendant

care that they have provided since November 2005.                       In total,

these amounted to 2,726 hours of compensable attendant care from

30 November 2005 through 6 May 2009.                 Additionally, the Full

Commission ordered that beginning 13 June 2009 and continuing

until further order of the Commission, defendants are to pay for

twelve hours of attendant care per day, seven days a week.                      The

Full     Commission   concluded     that       although    plaintiff’s     family

members    are   entitled   to    reimbursement      for    these      hours,   the

record did not contain sufficient evidence of the market hourly

rate for an unskilled attendant care provider.                   Thus, it noted

that the parties must stipulate to the appropriate hourly rate

or request Commission approval to take depositions or submit

other evidence to resolve the rate amount.                      Defendants filed

timely notice of appeal from the Full Commission’s opinion and

award.

       By order of this Court entered 30 October 2012, defendants’

appeal was held in abeyance pending resolution of two North

Carolina    Supreme   Court      cases     –   Chandler    ex    re.   Harris    v.

Atlantic Scrap & Processing, __ N.C. __, 749 S.E.2d 278 (2013),

and Mehaffey v. Burger King, __ N.C. __, 749 S.E.2d 252 (2013).
                                         -7-
Both cases were filed by the Supreme Court in November 2013, and

the   parties     to      this   suit   filed    briefs    within   thirty      days

thereafter.

                                    Discussion

                    I. Timeliness of Plaintiff’s Request

      Defendants first argue that, pursuant to the holding in

Mehaffey,     the    Full    Commission’s        opinion   and   award   must    be

remanded for entry of factual findings and legal conclusions

related      to     the     timeliness     of      plaintiff’s      request     for

reimbursement.         We agree.

      Plaintiff argues that defendants failed to preserve this

issue   on   appeal       because   they   did    not   properly    present     this

contention in the first instance before the Full Commission.

See Floyd v. Executive Personnel Grp., 194 N.C. App. 322, 329,

669 S.E.2d 822, 828 (2008) (holding that a party may not raise

an argument for the first time on appeal that was not brought

first before the Industrial Commission).                   However, we believe

that defendants presented this issue before the Commission and

therefore preserved it for appellate review.                     On page six of

defendants’ brief to the Full Commission, they argued that:

             To permit an employee to wait years after a
             family member begins providing post-accident
             care   before   bringing   the    issue   of
             reimbursement  to   the  attention   of  the
                                         -8-
             employer,     carrier, and Commission would
             frustrate     the second of the two goals
             reflected    in § 97-25.4(a): the containment
             of medical   costs.

Although defendants did not explicitly request that the Full

Commission      enter     findings       and         conclusions        as   to     the

reasonableness     of    the    length     of       time    it   took   plaintiff     to

request reimbursement for these attendant care services, they

did argue that the length of time was an additional reason to

deny plaintiff’s request.            Thus, we conclude defendants raised

and argued this point before the Full Commission and the issue

is properly preserved for appellate review.                      See Floyd, 194 N.C.

App. at 329, 669 S.E.2d at 828.

       Turning to the merits of defendants’ argument, we agree

that under Mehaffey, this matter must be remanded.                      The Mehaffey

Court noted 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    __,    749    S.E.2d   at     257.

Therefore, “[i]f [a] plaintiff did not seek approval within a

reasonable time, he is not entitled to reimbursement.”                               Id.

Because the defendants in Mehaffey challenged the reasonableness

of the timing of the plaintiff’s request and the Full Commission

did    not   resolve     that    issue     in        its    findings    of   fact     or
                                       -9-
conclusions of law, the Supreme Court remanded for entry of such

findings and conclusions.        Id.

     Here,     like     in     Mehaffey,       defendants     challenged   the

reasonableness     of    the    timing       of   plaintiff’s    request   for

reimbursement     for    attendant      care      services,   and   the    Full

Commission failed to enter findings of fact or conclusions of

law resolving that issue. Accordingly, pursuant to the Mehaffey

holding, we remand for entry of further findings of fact and

conclusions of law as to the timeliness of plaintiff’s request

for reimbursement.1

             II. Compensability of Attendant Care Services

     Defendants next argue that some of the services for which

plaintiff was reimbursed are not compensable as a matter of law.

Because the Full Commission entered findings of fact that would



1
   Plaintiff also argues that defendants are barred from
challenging the timeliness of plaintiff’s request because
defendants waived their right to direct medical care by denying
plaintiff’s need for care in the past.      We disagree for two
reasons: (1) nothing in Mehaffey indicates that defendants’
previous denial of care affects the Full Commission’s duty to
enter findings of fact and conclusions of law as to the
timeliness of a request where defendants have properly raised
that issue before the Commission; and (2) defendants did not
completely deny plaintiff’s attendant care.     To the contrary,
defendants provided all attendant care that was prescribed in
2009 and 2010. In their brief, defendants concede that there is
competent evidence to support an award of “some ongoing
attendant care services for [p]laintiff.”      Thus, plaintiff’s
argument regarding waiver is without merit.
                                         -10-
support an erroneous conclusion of law, but did not specify

whether those facts were taken into account in its award, we

remand for clarification on this issue.

    N.C.     Gen.    Stat.      §    97-25     (2013)   states   that     “[m]edical

compensation       shall   be       provided    by   the   employer.”       Medical

compensation is defined in relevant part as:

           medical, surgical, hospital, nursing, and
           rehabilitative services, including, but not
           limited    to,   attendant    care    services
           prescribed   by   a   health   care   provider
           authorized by the employer or subsequently
           by      the       Commission,       vocational
           rehabilitation, 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[.]

N.C. Gen. Stat. § 97-2(19) (2013).                   This Court has previously

held that “ordinary expense[s] of life” are not included in the

definition    of     “medical        compensation”      and   therefore    are   not

required to be provided or reimbursed by the employer.                           See

Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488,

494, 665 S.E.2d 781, 786 (2008).

    The holding in Scarboro is instructive here.                   In that case,

the Full Commission found as fact that because of a work-related

back injury, the plaintiff was unable to perform yard work that
                                          -11-
was required by his homeowners’ association.                   Scarboro, 192 N.C.

App. at 494, 665 S.E.2d at 786.                  The plaintiff sought to have

his employer reimburse him for the costs of hiring an outside

company     to    perform    the    yard    work   on   the    theory   that   such

services were an “extraordinary and unusual expense included in

the ‘other treatment’ language of N.C. Gen. Stat. § 97-25.”                     Id.

at   492,   665    S.E.2d    at    784.      However,    the    Court   held   that

“providing       plaintiff   with    the    resources    to    comply   with   this

restrictive covenant [to perform certain yard work] does not

rise to the level of ‘other treatment.’                 [The Full Commission’s]

factual     findings   support       the    conclusion    that    the   lawn   care

services are an ordinary expense of life, which is not included

in medical compensation, pursuant to N.C. Gen. Stat. § 97-2(19)

and N.C. Gen. Stat. § 97-25.”              Id.

      Here, the Full Commission found as fact that:

             8. During the summer of 2006, plaintiff was
             still   unable  to   perform   some of   the
             activities of daily living that he had been
             able to perform prior to his injury.
             Plaintiff could no longer care for his yard,
             and his wife had to take the trash out
             because he was unable to do so.

             . . .

             11.    Plaintiff’s condition continued to
             decline over the next year.      During his
             first   appointment with   Dr.  Prakken  on
             September 29, 2008, plaintiff reported pain
                                     -12-
           in his neck and back, tingling in both
           hands, and weakness in his right hand which
           limited his ability to work around his
           house. As a result of this, family members
           including plaintiff’s daughter, brother-in-
           law and son-in-law performed tasks plaintiff
           used to perform himself such as yard work,
           cleaning the gutters, washing the house and
           cars, vacuuming and taking out the trash.
           Plaintiff was also unable to help his wife
           with the laundry and cooking, tasks for
           which    they    had    previously    shared
           responsibility.

It is clear that some of the activities identified by the Full

Commission as being performed by plaintiff’s family members on

his behalf, specifically yard work and other household chores,

fall under the definition of “ordinary expenses of life” and are

therefore not compensable.        See Scarboro, 192 N.C. App at 492,

665 S.E.2d at 784.       However, it is unclear to what extent the

Full Commission relied on these factual findings in its opinion

and   award.     Although   the   Full      Commission’s   conclusion     that

plaintiff is entitled to reimbursement for attendant care is

supported by competent evidence, we have no way of knowing how

many of these hours were comprised of non-compensable “ordinary

expenses of life” activities.

      Accordingly, pursuant to Scarboro, we remand to the Full

Commission     for   clarification    in     its   findings   of   fact   and

conclusions of law as to this distinction, and we instruct the
                                          -13-
Full    Commission           to   award    reimbursement         only        for    those

“extraordinary and unusual expenses” that are compensable under

section 97-25.

                              III. Payment Recipients

       Defendants’      final     argument       on   appeal    is   that     the    Full

Commission erred by awarding reimbursement directly to plaintiff

rather than to the family members who actually performed the

attendant care services.            However, defendants cite no authority

for the proposition that this failure to specify recipients and

connect their award to the attendant care provided amounts to

reversible error.            Thus, this argument is deemed abandoned. See

Hackos v. Goodman, Allen & Filetti, PLLC, __ N.C. App. __, __,

745 S.E.2d 336, 341 (2013).

       Furthermore, we disagree with defendants’ contention that

plaintiff’s      wife    should     not    be     awarded      compensation        solely

because she herself is also disabled.                    Defendants assert that

plaintiff’s wife “has not had to alter her routine at all in

order to provide [p]laintiff with this ‘passive care.’                             Due to

her own disability, she has not worked since before [p]laintiff

was injured and would be at home with him regardless of his need

for    someone   to     be    within   shouting       distance.”        We    expressly

reject this line of argument.              Neither defendants nor this Court
                                   -14-
have any basis to assume how plaintiff’s wife would have spent

her time had plaintiff not been seriously injured.            Defendants’

argument is overruled.

                               Conclusion

      For the reasons stated above, we reverse the opinion and

award and remand to the Full Commission for entry of findings of

fact and conclusions of law: (1) addressing the reasonableness

of the amount of time it took plaintiff to request reimbursement

for the attendant care services plaintiff’s family provided; and

(2)   resolving   what   portion   of    the   attendant   care    to   which

plaintiff   is    entitled     was      comprised   of     valid    medical

compensation under the meaning of section 97-25.



      REVERSED AND REMANDED.

      Judges BRYANT and STEELMAN concur.

      Report per Rule 30(e).
