233 N.C. App. 748
N.C. Ct. App.2014Background
- In 2008 Santos Tinajero suffered a C4-5 fracture-dislocation at work and became a quadriplegic requiring 24-hour attendant care.
- He was treated at Shepherd Center, later placed at Briarcliff Haven (a sub-acute/long-term care facility); his nurse case manager and medical evidence suggested a nursing-home setting harmed his rehabilitation and mental health.
- Tinajero did not own a home that could be modified for accessibility; defendants had been paying the full housing costs while he lived in institutional care but refused to pay for a leased handicapped-accessible apartment.
- The Industrial Commission ordered defendants to pay lifetime compensation, 24/7 attendant care, and the rental cost of reasonable handicapped-accessible housing (an apartment) but found defendants’ transportation provision reasonable and rejected payment for one life-care plan while ordering a new certified life-care planner’s assessment.
- The Court of Appeals affirmed the housing and transportation holdings but reversed and remanded because the Commission admitted a new evaluator’s report (Susan Caston) without allowing Tinajero to depose her; the court also remanded the attorney-fees and costs determinations for reconsideration after the deposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants must pay rental cost of handicapped-accessible housing | Tinajero: Defendants should pay full rental cost because he owns no residence that can be modified and institutional care was medically inappropriate | Defendants: Rent is an ordinary living expense to be paid from disability compensation; at most they should pay the incremental cost above pre-injury rent | Court: Affirmed—given defendants previously paid full institutional housing (which Commission found harmful), Commission reasonably required defendants to pay rental cost of suitable accessible apartment |
| Whether Commission should have allowed depositions of expert evaluators (Caston, May) | Tinajero: Denial violated due process; deposition needed to rebut evidence that became basis for award | Defendants: Plaintiff waived or sought delay; some requests sought re-litigation of prior rulings | Court: Reversed as to Caston—Commission abused discretion by admitting her report without allowing deposition; remanded for deposition. Denial re: May not an abuse but may be renewed after Caston deposition |
| Whether defendants must provide adaptive transportation (special vehicle) | Tinajero: Commission should order an adaptive van | Defendants: Existing transportation services and vehicle modification if plaintiff buys vehicle are sufficient | Court: Affirmed—Commission found current transportation reasonable; Derebery allows adaptive transport only if existing options are unsatisfactory and modification impracticable |
| Whether plaintiff entitled to attorneys’ fees and costs under N.C. Gen. Stat. § 97-88.1 and to have defendants pay for prior life-care plan | Tinajero: Fees and costs warranted for unreasonable defense and defendants should pay for Fryar’s life-care plan | Defendants: Defense was reasonable; Fryar’s plan was biased and not a compensable rehabilitative service | Court: Reversed Commission’s interlocutory denial of fees and remanded fees and life-care-plan cost questions for reconsideration after Caston deposition |
Key Cases Cited
- Derebery v. Pitt Cnty. Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (N.C. 1986) (employer’s obligation to furnish “other treatment” may include alternate accessible housing when existing quarters are unsatisfactory and modification is impracticable)
- Timmons v. N.C. Dep’t of Transp., 346 N.C. 173, 484 S.E.2d 551 (N.C. 1997) (per curiam affirmance of limits on employer liability for housing costs; modification costs may be compensable)
- Espinosa v. Tradesource, Inc., 231 N.C. App. 174, 752 S.E.2d 153 (N.C. Ct. App. 2013) (Commission may apportion ordinary housing expense to employee and require employer to pay incremental cost when employee did not own a home)
- McDonald v. Brunswick Elec. Membership Corp., 77 N.C. App. 753, 336 S.E.2d 407 (N.C. Ct. App. 1985) (historical bar on requiring employer to purchase specially-equipped vehicle; later limited by Derebery)
- Allen v. K-Mart, 137 N.C. App. 298, 528 S.E.2d 60 (N.C. Ct. App. 2000) (Commission must allow opportunity to depose or otherwise rebut new expert evidence admitted and relied on by the Commission)