Retroactive Attendant Care Issue before NC Supreme Court

Attendant care benefits for injured workers in North Carolina are in the spotlight with two conflicting cases under appeal before the North Carolina Supreme Court (Mehaffey v. Burger King and Chandler v. Atlantic Scrap). At issue is whether claimants can be retroactively awarded attendant care benefits for care provided to them by family members.

Depending on the Court’s decision, family members of injured workers could have avenues to come back with claims for retroactive attendant care benefits. This means NC employers and their insurance carriers could be faced with paying huge lump sums they never anticipated. 

No Catastrophic Injury Required

For employers who are thinking, “What are the chances of a catastrophic injury happening to one of my employees at work?” Not so fast. There is no catastrophic injury requirement for attendant care benefits. Attendant care benefits can also be awarded to workers who have suffered only a minor brain injury so their physical functioning is not impaired but they need supervision 24 hours a day, 7 days a week. For an employer, this basic companion care (using $10/hour wage) could come with an $87,000 annual price tag for the duration of the claimant’s life.

Medicare Set Asides Make It Cost Prohibitive to Resolve Claims

Prior to the June 2011 reform legislation, the term Attendant Care was not specifically included within the statutory definition of Medical Compensation. Now it is, and it applies to claims arising on or after June 24, 2011. The definition of Medical Compensation found in NCGS 97-2(19) now includes, “…attendant care services prescribed by a health care provider authorized by the employer or subsequently by the Commission…” If an injured worker is Medicare eligible at the time of settlement contemplation, the potential high cost of attendant care will need to be considered.