{ "id": 3805770, "name": "WENDY SHACKLETON, as the Executrix of the Estate of BRENDA P. GAINEY, Deceased, and as the Executrix of the Estate of LEWARD BENMACK GAINEY, Deceased Employee Plaintiff v. SOUTHERN FLOORING & ACOUSTICAL COMPANY, Employer, and USF&G KEMPER INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Shackleton v. Southern Flooring & Acoustical Co.", "decision_date": "2011-04-19", "docket_number": "No. COA10-734", "first_page": "233", "last_page": "251", "citations": [ { "type": "official", "cite": "211 N.C. App. 233" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "year": 2005, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0491-01" ] }, { "cite": "641 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637939, 12637940, 12637941 ], "year": 2007, "pin_cites": [ { "parenthetical": "quoting Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005)" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0801-01", "/se2d/641/0801-02", "/se2d/641/0801-03" ] }, { "cite": "361 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739778, 3739170, 3745188, 3739087, 3746672, 3742097, 3742770, 3737919 ], "year": 2007, "pin_cites": [ { "parenthetical": "quoting Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005)" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0227-05", "/nc/361/0227-07", "/nc/361/0227-03", "/nc/361/0227-08", "/nc/361/0227-06", "/nc/361/0227-02", "/nc/361/0227-01", "/nc/361/0227-04" ] }, { "cite": "636 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637060 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "555" }, { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0553-01" ] }, { "cite": "616 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633563 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "365" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0356-01" ] }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132199, 132234 ], "year": 1999, "pin_cites": [ { "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-01", "/nc/350/0108-03" ] }, { "cite": "661 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641153 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "748" }, { "page": "748" }, { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0745-01" ] }, { "cite": "646 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638857 ], "weight": 7, "year": 2007, "pin_cites": [ { "page": "606" }, { "page": "606" }, { "page": "606-07" }, { "page": "606-09" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0604-01" ] }, { "cite": "567 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "771", "parenthetical": "concluding that \"the Commission did not err in ordering that. . . the details of any new home construction or remodeling should be governed by 'reasonableness and medical necessity,' without specifically ordering that [the claimant's treating physician's] specifications be followed\"" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250241 ], "year": 2002, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0390-01" ] }, { "cite": "693 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "parenthetical": "Evidence sufficient when a rehabilitative nurse opined that \"due to her current physical condition, [the] Plaintiff needs some level of assistance in the performance of her daily living activities\"" } ], "opinion_index": 0 }, { "cite": "363 N.C. 853", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "pin_cites": [ { "parenthetical": "Evidence sufficient when a rehabilitative nurse opined that \"due to her current physical condition, [the] Plaintiff needs some level of assistance in the performance of her daily living activities\"" } ], "opinion_index": 0 }, { "cite": "685 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "160" } ], "opinion_index": 0 }, { "cite": "Vt. Stat. Ann. tit. 21, \u00a7 640", "category": "laws:leg_statute", "reporter": "Vt. Stat. Ann.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ariz. Rev. Stat. \u00a7 234062", "category": "laws:leg_statute", "reporter": "Ariz. Rev. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "357 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "685", "parenthetical": "concluding that the Commission's opinion set out an incorrect standard and remanding to the Commission for new findings of fact and conclusions of law applying the correct legal standard" } ], "opinion_index": 0 }, { "cite": "320 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728549 ], "year": 1987, "pin_cites": [ { "page": "158", "parenthetical": "concluding that the Commission's opinion set out an incorrect standard and remanding to the Commission for new findings of fact and conclusions of law applying the correct legal standard" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0155-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36", "parenthetical": "\"[A] panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"[A] panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "431 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "180", "parenthetical": "The Court of Appeals has \"no authority to overrule decisions of [the] Supreme Court and [has] the responsibility to follow those decisions until otherwise ordered by the Supreme Court\"" } ], "opinion_index": 0 }, { "cite": "334 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529622 ], "year": 1993, "pin_cites": [ { "page": "118", "parenthetical": "The Court of Appeals has \"no authority to overrule decisions of [the] Supreme Court and [has] the responsibility to follow those decisions until otherwise ordered by the Supreme Court\"" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0115-01" ] }, { "cite": "665 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "453", "parenthetical": "stating that \"the Workers' Compensation Act should be liberally construed, whenever appropriate, so that benefits will not be denied upon mere technicalities or strained and narrow interpretations of its provisions\" (quotation omitted)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149743 ], "year": 2008, "pin_cites": [ { "page": "463", "parenthetical": "stating that \"the Workers' Compensation Act should be liberally construed, whenever appropriate, so that benefits will not be denied upon mere technicalities or strained and narrow interpretations of its provisions\" (quotation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0457-01" ] }, { "cite": "130 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "344", "parenthetical": "\"The Compensation Act requires that it be liberally construed to effectuate the objects for which it was passed - to provide compensation for workers injured in industrial accidents\"" } ], "opinion_index": 0 }, { "cite": "259 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559758 ], "year": 1963, "pin_cites": [ { "page": "225", "parenthetical": "\"The Compensation Act requires that it be liberally construed to effectuate the objects for which it was passed - to provide compensation for workers injured in industrial accidents\"" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0222-01" ] }, { "cite": "155 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "160", "parenthetical": "The testimony of the \"business manager of the Friendly Elm Nursing Home\" and the claimant's brother, without mention of the claimant's treating physician, was sufficient to \"support the finding that\" attendant care \"was reasonably necessary for the welfare of the claimant\"" }, { "page": "160" } ], "opinion_index": 0 }, { "cite": "270 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570183 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "694" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0690-01" ] }, { "cite": "525 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "207" }, { "page": "207" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240508 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "479" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0473-01" ] }, { "cite": "223 Ariz. 1", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 4052138 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "4" }, { "page": "214", "parenthetical": "concluding, \"as the Vermont Supreme Court did, that Warren Trucking's rigid framework does not further the remedial purposes of workers' compensation statutes],]\" and \"]u]nder Arizona law, compensability turns on the nature of the services, not on the identity of the provider\"" } ], "opinion_index": 0, "case_paths": [ "/ariz/223/0001-01" ] }, { "cite": "166 Vt. 318", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 1548998 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "324" }, { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/vt/166/0318-01" ] }, { "cite": "281 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "29", "parenthetical": "\"Although the interpretation of a statute by an agency created to administer that statute is traditionally accorded some deference by appellate courts, those interpretations are not binding\" (quotation omitted)" } ], "opinion_index": 0 }, { "cite": "303 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574954 ], "year": 1981, "pin_cites": [ { "page": "581", "parenthetical": "\"Although the interpretation of a statute by an agency created to administer that statute is traditionally accorded some deference by appellate courts, those interpretations are not binding\" (quotation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0573-01" ] }, { "cite": "277 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "221 Va. 1108", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2138813 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/va/221/1108-01" ] }, { "cite": "360 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788691 ], "year": 2005, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0041-01" ] }, { "cite": "360 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787177 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "611" }, { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0609-01" ] }, { "cite": "535 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122648 ], "year": 2000, "pin_cites": [ { "page": "132-33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0130-01" ] }, { "cite": "568 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511592, 1511418, 1511507, 1511502 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0166-03", "/nc/356/0166-04", "/nc/356/0166-01", "/nc/356/0166-02" ] }, { "cite": "559 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "252" }, { "page": "252-53" }, { "page": "253" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367967 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "679" }, { "page": "679-80" }, { "page": "680-81" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0675-01" ] }, { "cite": "309 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "272" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524363 ], "year": 1983, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0397-01" ] }, { "cite": "581 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "785", "parenthetical": "quoting Swink v. Cone Mills, Inc., 65 N.C. App. 397, 398, 309 S.E.2d 271, 272 (1983)" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187488 ], "year": 2003, "pin_cites": [ { "page": "351", "parenthetical": "quoting Swink v. Cone Mills, Inc., 65 N.C. App. 397, 398, 309 S.E.2d 271, 272 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0341-01" ] }, { "cite": "23 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "222 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630398 ], "year": 1942, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0358-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "754" }, { "page": "753" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "234" }, { "page": "232" }, { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "172 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320584 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "509" }, { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0496-01" ] }, { "cite": "256 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "194", "parenthetical": "quotations omitted" } ], "opinion_index": 0 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "year": 1979, "pin_cites": [ { "page": "465", "parenthetical": "quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "701", "parenthetical": "citation omitted" }, { "page": "701" } ], "opinion_index": 0 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "496", "parenthetical": "citation omitted" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0488-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "914", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "414" }, { "page": "413" }, { "page": "413", "parenthetical": "citation omitted" }, { "page": "414", "parenthetical": "1998" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "681" }, { "page": "680" }, { "page": "680" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "675 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "190 N.C. App. 733", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157612 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "738" }, { "page": "739" }, { "page": "739" }, { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0733-01" ] }, { "cite": "409 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "104", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521328 ], "year": 1991, "pin_cites": [ { "page": "285-86", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0284-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2009, "pin_cites": [ { "page": "(19)" }, { "page": "(19)" }, { "page": "(19)", "parenthetical": "Emphasis added" }, { "page": "(19)" }, { "page": "(19)" }, { "page": "(19)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 }, { "cite": "184 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8186439 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "500" }, { "page": "500" }, { "page": "500-01" }, { "page": "500-04" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0497-01" ] } ], "analysis": { "cardinality": 1473, "char_count": 44495, "ocr_confidence": 0.742, "pagerank": { "raw": 5.671092547448392e-08, "percentile": 0.3531835253715564 }, "sha256": "eae709cef25ce31aa048e25f595afc6dc18055e26ce9b834609fa14fae0e25e9", "simhash": "1:cd0089a3b2b74a76", "word_count": 6970 }, "last_updated": "2023-07-14T21:31:50.212435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ROBERT C. HUNTER concur." ], "parties": [ "WENDY SHACKLETON, as the Executrix of the Estate of BRENDA P. GAINEY, Deceased, and as the Executrix of the Estate of LEWARD BENMACK GAINEY, Deceased Employee Plaintiff v. SOUTHERN FLOORING & ACOUSTICAL COMPANY, Employer, and USF&G KEMPER INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "THIGPEN, Judge.\nThe Industrial Commission concluded Decedent\u2019s death was not caused by asbestosis and that since the attendant care of Decedent was not prescribed by a doctor, it was not compensable. We must decide whether the conclusions of law of the Industrial Commission were supported by the findings of fact, and the findings of fact, in turn, supported by the evidence. We affirm the decision of the Industrial Commission on the issue of death benefits. We remand on the issue of compensation for attendant care.\nThe record and procedural history of this case show the following: Leward Benmack Gainey (\u201cDecedent\u201d) was employed by Southern Flooring & Acoustical (\u201cDefendant\u201d) from 1969 to 1983. Decedent began his work for Defendant as a field installer, a job which primarily involved the installation of asbestos tiles in ceilings. On 8 April 1999, Decedent filed a Form 18B with the Industrial Commission, seeking benefits for his occupational disease resulting from exposure to asbestos during his employment with Defendant. On 2 September 2003, the Full Commission entered an Opinion and Award concluding that \u201c[Decedent] was last injuriously exposed to asbestos during his employment with Southern Flooring and that [Decedent] had contracted asbestosis as a result of that exposure.\u201d Estate of Gainey v. S. Flooring & Acoustical Co., 184 N.C. App. 497, 500, 646 S.E.2d 604, 606 (2007). The Commission, however, \u201cremanded the matter to a deputy commissioner for immediate hearing and Opinion and Award regarding the disability of [Decedent] as a result of his asbestosis.\u201d Id, 184 N.C. App. at 500, 646 S.E.2d at 606. A deputy commissioner entered an opinion and award concluding that Decedent was totally and permanently disabled, and his asbestosis was a significant contributing factor in the disability. The Full Commission entered an Opinion and Award on 2 March 2006, summarized by this Court in Gainey, 184 N.C. App. 497, 646 S.E.2d 604:\n[T]he Commission found that (1) [Decedent] had received medical treatment for asbestosis-related problems; (2) [Decedent] suffered from breathing problems as a result of asbestosis; (3) [Decedent] had suffered from asbestosis as a result of his employment with defendant-employer and the disease had rendered him unable to perform gainful employment since 3 December 1999; (4) [Decedent]\u2019s breathing problems severely impaired his daily activities; (5) as a result of asbestosis, it was difficult, if not impossible, for [Decedent] to do any job that required any amount of physical activity; and (6) [Decedent] stopped working in 1995 as a result of his disease and [Decedent]\u2019s asbestos-related condition continued to deteriorate until his death. The Commission concluded that as a result of his asbestosis, [Decedent] was entitled to permanent and total disability compensation at the weekly rate of $481.24 from 3 December 1999, the date of the panel examination by Dr. Rostand, through the date of his death, 9 May 2005. Defendants were ordered to pay the compensation awarded to [Decedent]\u2019s estate in a lump sum, along with attorney\u2019s fees in the amount of 25% of the compensation awarded.\nId., 184 N.C. App. at 500-01, 646 S.E.2d at 606-07.\nOn 3 July 2007, this Court affirmed the 2 March 2006 Opinion and Award of the Industrial Commission awarding Decedent permanent and total disability compensation at the weekly rate of $481.24 from 3 December 1999 until the date of his death. See id., 184 N.C. App. at 500-04, 646 S.E.2d at 606-09.\nIn response to Plaintiffs Form 33 seeking benefits for Decedent\u2019s death, Deputy Commissioner Robert J. Harris entered an Opinion and Award on 6 December 2007 concluding that Decedent\u2019s asbestosis neither caused nor significantly contributed to Decedent\u2019s death. Deputy Commissioner Myra L. Griffen entered an Opinion and Award on 26 June 2008 in response to Plaintiff\u2019s Form 33 seeking attendant care benefits, concluding that there was \u201cinsufficient competent medical evidence to establish that attendant care was reasonable and necessary as a result of [Decedent]\u2019s compensable asbestosis\u201d and that Decedent\u2019s \u201cclaim for attendant care services is DENIED.\u201d\nOn 22 March 2010, the Full Commission entered an order affirming both orders from the Deputy Commissioners, denying Decedent\u2019s claim for compensation for death pursuant to N.C. Gen. Stat. \u00a7 97-38, and denying Decedent\u2019s claim for attendant care benefits pursuant to N.C. Gen. Stat. \u00a7 97-2(19) (2009), and N.C. Gen. Stat. \u00a7 97-25 (2009). From this Opinion and Award, Plaintiff appeals, challenging the adequacy of the evidence to support the Full Commission\u2019s findings of fact with regard to both issues: compensation for death and attendant care benefits.\nStandard of Review:\nIn reviewing a decision by the Industrial Commission, our Court\u2019s role \u201cis limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law.\u201d Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991) (citation omitted). \u201cThe Commission\u2019s findings of fact are conclusive upon appeal if supported by competent evidence, even if there is evidence to support a contrary finding.\u201d Kelly v. Duke Univ., 190 N.C. App. 733, 738, 661 S.E.2d 745, 748 (2008), disc. review denied, 363 N.C. 128, 675 S.E.2d 367 (2009) (citation omitted). On appeal, this Court \u201cdoes not have the right to weigh the evidence and decide the issue on the basis of its weighty] [t]he court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999) (quotation omitted). \u201c \u2018The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d Id., 349 N.C. at 680, 509 S.E.2d at 413 (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). \u201c[F]indings of fact by the Commission may [only] be set aside on appeal when there is a complete lack of competent evidence to support them[.]\u201d Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000) (citation omitted).\n\u201cThe Commission\u2019s conclusions of law are reviewed de novo.\u201d McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004) (citation omitted).\nI: Death from Occupational Disease\nIn Plaintiff\u2019s first argument on appeal, she contends the Commission erred by concluding Decedent\u2019s asbestosis neither caused nor significantly contributed to Decedent\u2019s death. Specifically, Plaintiff argues the Commission erred because \u201casbestosis was clearly a causative factor in the death of Decedent.\u201d\n\u201cFor an injury or death to be compensable under our Workmen\u2019s Compensation Act it must be either the result of an accident arising out of and in the course of the employment or an occupational disease.\u201d Booker v. Duke Medical Center, 297 N.C. 458, 465, 256 S.E.2d 189, 194 (1979) (quotations omitted). Death benefits under the Workers\u2019 Compensation Act are governed by N.C. Gen. Stat. \u00a7 97-38, which states the following:\nIf death results proximately from a compensable injury or occupational disease and within six years thereafter, or within two years of the final determination of disability, whichever is later, the employer shall pay or cause to be paid, subject to the provisions of other sections of this Article, weekly payments of compensation equal to sixty-six and two-thirds percent (66 2/3%) of the average weekly wages of the deceased employee at the time of the accident, but not more than the amount established annually to be effective October 1 as provided in G.S. 97-29, nor less than thirty dollars ($30.00), per week, and burial expenses not exceeding three thousand five hundred dollars ($3,500)[.]\nN.C. Gen. Stat. \u00a7 97-38.\nIn asbestosis cases, the question of whether a decedent receives death benefits pursuant to N.C. Gen. Stat. \u00a7 97-38 depends upon whether \u201c[the decedent\u2019s compensable] asbestosis either caused or significantly contributed to his . . . death[.]\u201d Payne v. Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 509, 616 S.E.2d 356, 365 (2005).\nThe question of whether Decedent\u2019s occupational disease caused or significantly contributed to Decedent\u2019s death was determined in this case through the testimony of expert witnesses. \u201cIn cases involving complicated medical questions, only an expert can give competent opinion testimony as to the issue of causation.\u201d Kelly, 190 N.C. App. at 739, 661 S.E.2d at 748 (citing Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)). \u201cWhere, as here, medical opinion testimony is required, \u2018medical certainty is not required, [but] an expert\u2019s speculation is insufficient to establish causation.\u2019 \u201d Kelly, 190 N.C. App. at 739, 661 S.E.2d at 748 (quoting Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003)). The Supreme Court has stated that \u201c \u2018[t]he evidence must be such as to take the case out of the realm of conjecture and remote possibility].]\u2019 \u201d Holley, 357 N.C. at 232, 581 S.E.2d at 753 (2003) (citing Gilmore v. Hoke Cty. Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)). \u201cWe acknowledge that the \u2018mere possibility of causation,\u2019 as opposed to the \u2018probability\u2019 of causation, is insufficient to support a finding of compensability.\u201d Whitfield v. Lab. Corp., 158 N.C. App. 341, 351, 581 S.E.2d 778, 785 (2003) (quoting Swink v. Cone Mills, Inc., 65 N.C. App. 397, 398, 309 S.E.2d 271, 272 (1983)).\nIn the case sub judice, the Commission found as fact the following:\n1. As of the date of his death, May 9, 2005, Decedent-Employee was 70 years old. Decedent-Employee was employed by defendant-employer, Southern Flooring and Acoustical Company from 1969 to 1983. The Commission previously found that decedent-employee contracted severe and disabling asbestosis from his employment with defendant-employer.\n2. Decedent-Employee was also diagnosed with cirrhosis of the liver as a result of Hepatitis, which is not related to his employment.\n4. Decedent-Employee\u2019s death certificate identified cirrhosis as the \u201cimmediate cause\u201d of death and listed hepatitis-B, asbestosis and COPD as conditions \u201cleading to immediate cause[.]\u201d\n5. In the months immediately preceding Decedent-Employee\u2019s death, his cirrhosis of the liver rapidly worsened. During 2005, Decedent-Employee had end-stage liver disease, his condition being at Stage 4, or the worst stage of the disease, with greater than 90 percent loss of liver function.\n8. Although the May 3, 2005 discharge summary did reference the asbestosis, the summary did not describe any resulting effect of the asbestosis on Decedent-Employee\u2019s overall health. Instead, at that time, the focus of the medical treatment appears to have been on the cirrhosis of the liver and the complications resulting therefrom, and on reducing Decedent-Employee\u2019s discomfort during his final illness. The summary also noted that Decedent-Employee had been referred for hospice services two days before his May 1, 2005 hospital admission.\n9. ... [T]he record from May 3, 2005, just prior to Decedent-Employee\u2019s death, did not make any mention of any lingering upper respiratory illness or complication from asbestosis.\n10. On March 7, 2005, the results of a CT scan without contrast of the chest indicated stable lung findings compared to a test done the year before. However, the results also indicated increasing abdominal ascites, which is fluid build-up in the abdomen due to a failing liver.\n11. Dr. Clements is a board-certified gastroenterologist who began seeing Decedent-Employee for his hepatitis-B in December of 2000 and treated Decedent-Employee through his final clinic visit on April 5, 2005, at which time Decedent-Employee was \u201cvery ill.\u201d Dr. Clements signed the death certificate. As he testified, Decedent-Employee\u2019s liver condition was the primary cause of his death.\n12.As Dr. Clements further testified, while asbestosis was a portion of Decedent-Employee\u2019s general demise over time, the acute demise at the end was due to the progression of the liver disease. As Dr. Clements further testified, Decedent-Employee did not have a big pulmonary demise at the end. While asbestosis was, in Dr. Clements\u2019 estimation, \u201cone of the portions that were involved with (Decedent-Employee\u2019s) death,\u201d Dr. Clements found it \u201chard, really, to differentiate\u201d the contribution of asbestosis to Decedent-Employee\u2019s overall condition at his death.\n13. Dr. Clements testified that he would yield to a pulmonologist as to the overall contribution that asbestosis had in Decedent-Employee\u2019s death.\n14. Dr. Alford, a board-certified pulmonologist to whom Decedent-Employee was referred by his primary care physician, saw Decedent-Employee just twice before his death. As Dr. Alford testified, the asbestosis caused cor pulmonale, or right heart failure, in Decedent-Employee, which can lead to death.\n15. As of Decedent-Employee\u2019s second visit to Dr. Alford, on February 14, 2005, his pulmonary symptoms had improved somewhat from the month before. Decedent-Employee had reduced his Bumex doses and was using oxygen only intermittently, and his cor pulmonale was not as dominant or debilitating as it had been at the previous visit.\n16. Dr. Alford did not know the details of Decedent-Employee\u2019s death, and he was unaware that Decedent-Employee had end-stage cirrhosis, which by itself can cause death. While Dr. Alford testified that he \u201cwould not be surprised to know that asbesto [sis] . . . and right heart failure, more specifically, was a definite factor in (Decedent-Employee\u2019s) death,\u201d he also acknowledged that he did not have enough details from the death certificate to know exactly how Decedent-Employee died.\n17. Dr. Surdulescu, a board-certified pulmonologist to whom Decedent-Employee was referred by his counsel, in December of 2004 stated that he could not comment on the cause of Decedent-Employee\u2019s death. When asked directly whether ' asbestosis had contributed to Decedent-Employee\u2019s death, Dr. Surdulescu testified, \u201cIt\u2019s hard to tell \u2014 asbestosis, in conjunction with some other problems, maybe.\u201d Dr. Surdulescu further testified that the inclusion of asbestosis on the death certificate was not \u201csurprising\u201d to him.\n18. Dr. Vorwald, a board-certified family physician who was Decedent-Employee\u2019s primary physician, last saw Decedent-Employee on February 4, 2005. He did not treat Decedent-Employee during the three-month period prior to his death and did not review Decedent-Employee\u2019s medical records for that period. Although Dr. Vorwald testified that asbestosis was a significant contributing factor in Decedent-Employee\u2019s death, he had a limited basis for offering an opinion as to the cause of death. In fact, Dr. Vorwald testified that the physicians who were treating Decedent-Employee near the time of his death were in a better position to determine the factors that were significant in Decedent-Employee\u2019s death.\n19. Based upon a careful review of the medical evidence of record, the Full Commission assigns greater weight to the testimony of Dr. Clements than to that of Dr. Vorwald, because Dr. Clements specializes in the field of abdominal disorders and treated Decedent-Employee much closer to his death than did Dr. Vorwald. The Full Commission also finds the testimony of Drs. Vorwald, Alford and Surdulescu regarding the contribution of asbestosis to Decedent-Employee\u2019s death to have been speculative, particularly the testimony to the effect that the witnesses would not have been \u201csurprised\u201d if it was a significant contributor. Dr. Clements yielded to a pulmonologist on the question of the level of contribution of the asbestosis to Decedent-Employee\u2019s death, but neither pulmonologist effectively testified that asbestosis was a significant contributing factor in Decedent-Employee\u2019s death. Finally, the Full Commission notes that Dr. Benson, who was apparently the last physician to examine Decedent-Employee while he was alive, was not deposed.\nBased on the foregoing findings of fact, the Commission concluded the following, and rendered the Award accordingly:\n1. Plaintiff has not carried its burden to show that Decedent-Employee\u2019s death proximately resulted from his compensable asbestosis. The findings do not support a conclusion that asbestosis was more likely than not a significant contributing factor in Decedent-Employee\u2019s death or that asbestosis more likely than not accelerated Decedent-Employee\u2019s death. As such, Plaintiff\u2019s claim for compensation for death under N.C. Gen. Stat. \u00a797-38 must fail.\n1. Plaintiffs claim for compensation for death under N.C. Gen. Stat. \u00a7 97-38 must under the law be, and is hereby, DENIED.\nDr. Clements gave the following testimony, which we must review to determine whether \u201c[t]he Commission\u2019s findings of fact are . . . supported by competent evidence[.]\u201d Kelly, 190 N.C. App. at 738, 661 S.E.2d at 748. If the findings of fact are supported by competent evidence, they are conclusive upon appeal, \u201ceven if there is evidence to support a contrary finding.\u201d Id.\nQ: Do you have an opinion as to whether his respiratory \u2014 his pulmonary problems were contributing to that overall disability?\nA: I would have to say that he did have lung \u2014 that\u2019s not my area of expertise, but he did have some pulmonary \u2014 you know, pulmonary disease related as well. So I cannot say that it did not, but his main symptoms . . . were confusion. He did have some shortness of breath, but he had his belly full of fluid as well. So, yeah it\u2019s kind of hard to differentiate when you are having some shortness of breath symptoms and confused. But I would \u2014 I would say that it at least played some part in his \u2014 in his disease state.\nQ: Okay. As we sit here today, does it remain your opinion that asbestosis was a causative factor in Mr. Gainey\u2019s death?\nA: I think it was one of the portions that were involved with his \u2014 with his death.\nQ: Okay. And, when you \u2014 and this may be an impossible question to answer. But, when you say \u201cone of the portions,\u201d how do you mean that?\nA: Well, I think that he had \u2014 you know, when you have advanced liver disease and confusion, and we\u2019re bringing back therapy and shortness of breath, and he had so many other items going on at the same time, it\u2019s really \u2014 you know, it\u2019s a big global picture, and there\u2019s all the different pieces. And what pieces is prominent at the end of life, when he\u2019s advanced, and you\u2019re withdrawing therapy and things, it\u2019s hard to \u2014 it\u2019s hard, really, to differentiate between those two completely.\nQ: And as far as the \u2014 as far as the cause of death itself, would you say the liver failure was the \u2014 was the primary cause of death?\nA: Yes, I would.\nQ: And I\u2019m not really looking for a percentage, but I\u2019m just trying to get some kind of feel for whether or not you feel like the asbestosis was, you know, a significant contributing factor.\nA: I think it was \u2014 I shouldn\u2019t say \u2014 I\u2019m using too many words. I think it was a portion of his general demise over time. I think it was a portion of his general demise. And, when you have an organ system that\u2019s not working, it puts more stress on other systems that are involved with, you know, hepatitis. And so overall I think it was involved. The acute demise at the end, I don\u2019t think he had a big pulmonary demise. I think it was more progression of the liver disease.\nQ: Doctor, in terms of the extent of Mr. Gainey\u2019s shortness of breath, the cause of it and how severe the asbestosis was and its overall contribution to Mr. Gainey\u2019s death, would you yield to a pulmonologist?\nA: Yes, 100 percent. ...\nAs the Full Commission found as fact, Dr. Clements testified that Decedent\u2019s liver condition was the primary cause of Decedent\u2019s death; specifically Dr. Clements said \u201cthe acute demise at the end\u201d was due to the \u201cprogression of the liver disease.\u201d Dr. Clements further described Decedent\u2019s asbestosis in the following manner: asbestosis was \u201csome part in his . . . disease state\u201d; \u201cone of the portions that were involved with his . . . death\u201d; \u201ca portion of his general demise over time\u201d; and \u201cI don\u2019t think he had a big pulmonary demise\u201d at the end of Decedent\u2019s life, but asbestosis was \u201cinvolved.\u201d We believe that Dr. Clements\u2019 testimony certainly supports and tends to show that asbestosis was a factor in Decedent\u2019s death, but the question before the Full Commission was whether \u201casbestosis either caused or significantly contributed to [Decedent\u2019s] . . . death[.]\u201d Payne, 172 N.C. App. at 509, 616 S.E.2d at 365. We believe Dr. Clements\u2019 testimony supports the Commission\u2019s findings, and in turn it\u2019s conclusion, that asbestosis did not significantly contribute to Decedent\u2019s death. Dr. Clements\u2019 testimony provides competent evidence to support the challenged findings, and therefore, the findings of fact are conclusive on appeal. Although there was arguably evidence of record contrary to Dr. Clements\u2019 testimony, in the form of testimony by other physicians, \u201c[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Adams, 349 N.C. at 680, 509 S.E.2d at 413 (citation omitted). The Commission did not err by giving more weight to the testimony of Dr. Clements than to the testimony of other physicians; nor did the Commission err by concluding that evidence in the form of testimony that a physician \u201cwould not be surprised to know that asbesto [sis]\u201d contributed to Decedent\u2019s death was speculative. On appeal, this Court \u201cdoes not have the right to weigh the evidence and decide the issue on the basis of its weighty] [t]he court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding[s].\u201d Adams, 349 N.C. at 681, 509 S.E.2d at 414 (1998) (citation omitted). As such, we conclude that the challenged findings of fact are supported by Dr. Clements\u2019 testimony, and the findings of fact, in turn, support the conclusion of law that Decedent\u2019s asbestosis did not cause or significantly contribute to Decedent\u2019s death. Therefore, we affirm the Full Commission\u2019s conclusion that Decedent\u2019s death is not compensable pursuant to N.C. Gen. Stat. \u00a7 97-38.\nII: Attendant Care Compensation\nIn Plaintiff\u2019s second and final argument on appeal, she contends the Full Commission erred by concluding there was \u201cinsufficient competent medical evidence to establish that attendant care was reasonable and necessary as a result of Decedent-Employee\u2019s compensable asbestosis.\u201d We conclude the Commission acted under a misapprehension of law.\n\u201cWhether a plaintiff does or does not receive attendant care benefits is a conclusion of law which must be supported by findings of fact.\u201d Ruiz v. Belk Masonry Co., 148 N.C. App. 675, 679, 559 S.E.2d 249, 252, disc. review denied, 356 N.C. 166, 568 S.E.2d 610 (2002). \u201cOn an appeal from an opinion and award from the Commission [regarding attendant care benefits], the standard of review for this Court \u2018is limited to a determination of (1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its conclusions of law.\u201d Id., 148 N.C. App. at 679-80, 559 S.E.2d at 252-53 (quoting Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000)).\n\u201cThe Commission\u2019s conclusions of law are reviewed de novo.\u201d McRae, 358 N.C. at 496, 597 S.E.2d at 701. \u201cIf the conclusions of the Commission are based upon a . . . misapprehension of the law, the case should be remanded so \u2018that the evidence [may] be considered in its true legal light.\u2019 \u201d Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006), rehearing denied, 361 N.C. 227, 641 S.E.2d 801 (2007) (quoting Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005)).\nN.C. Gen. Stat. \u00a7 97-25 provides that \u201c[mjedical compensation shall be provided by the employer.\u201d N.C. Gen. Stat. \u00a7 97-2(19) defines the term \u201cmedical compensation\u201d:\nThe term \u201cmedical compensation\u201d 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.\nN.C. Gen. Stat. \u00a7 97-2(19) (Emphasis added).\nIn the case sub judice, the Commission made the following findings of fact with regard to the issue of whether Decedent was entitled to receive attendant care benefits:\n20. From November 2004 through January 2005, decedent-employee was unable to do some of the things that he normally would perform on his own. As a result, his wife, Brenda Gainey, began assisting decedent-employee around the house for approximately 6 hours per day. From January 2005 to March 2005, decedent-employee\u2019s wife and daughter, Wendy Shackleton, increased their assistance to 10 hours per day.\n21. In March 2005, decedent-employee\u2019s health began to deteriorate significantly. In April 2005, Brenda Gainey hired an individual named Judy Norris to assist in taking care of Decedent-Employee. Ms. Norris spent approximately 18 hours per day tending to decedent-employee\u2019s needs. Ms. Norris\u2019 qualifications and the amount of money paid for her services are unknown.\n22. From March 2005 until his death, decedent-employee\u2019s family, with the assistance of Ms. Norris and Hospice, provided 24-hour supervision and care.\n23. On February 4, 2005, Dr. Frederick Vorwald examined decedent-employee. At the time of the examination, Dr. Vorwald noted that that decedent-employee rarely left the house, but that he appeared capable of dressing and showering himself.\n24. In February 2005, Dr. Alford examined decedent-employee for the last time prior to his death. Dr. Alford, who specializes in pulmonary and critical care medicine, noted that decedent-employee was clinically doing somewhat better.... Dr. Alford did not prescribe attendant care for decedent-employee, nor did he testify that attendant care was necessary due to the progression of decedent-employee\u2019s asbestosis.\n25. On April 5,2005, Dr. John Clements, who was treating decedent-employee for his end-stage [li]ver disease, provided his last treatment for decedent-employee. At that time, decedent-employee was suffering from ascites and was in a state of confusion, which made him incapable of tending to his own needs. The confusion was a result of elevated ammonia building up due to the advanced stage of his liver disease. Dr. Clement[s] was unable to attribute asbestosis as the cause of decedent-employee\u2019s incapacity. In Dr. Clement[s\u2019] opinion, decedent-employee\u2019s confusion was paramount in his incapacity and that his mental state was a result of his liver failure.\n26. Decedent-Employee\u2019s treating pulmonologist, Dr. Sever Surdulescu, last examined him in December 2004. At that time, decedent-employee exhibited a lack of energy to walk. Dr. Surdulescu stated that the cause of the lack of energy could be either his asbestosis or his cirrhosis or a combination of the two serious diseases. When questioned whether it was reasonable that decedent-employee would need help around the house in 2005, Dr. Surdulescu, the treating pulmonologist, responded \u201c[i]t\u2019s possible, but I don\u2019t remember.\u201d\n27. The greater weight of the competent medical evidence fails to establish that any physician prescribed attendant medical care for Decedent-Employee. The greater weight of the competent medical evidence also fails to establish that Decedent-Employee\u2019s incapacity to care for himself was the result of his compensable asbestosis. (Emphasis added).\nBased on these findings of fact, the Full Commission made the following conclusion of law and entered the following award:\n2. An injured employee is entitled to receive reasonable and necessary medical services and other treatment as may reasonably be required to effect a cure or give relief. N.C. Gen. Stat. \u00a7\u00a7 97-2(19), 97-25. Attendant care services can be compensable under the Act if the treatment provided is reasonable and necessary. In determining whether the attendant care is reasonable and necessary, the competent medical evidence must show that a physician has prescribed attendant care as a necessary result of the accident. The physician must also describe with a reasonable degree of particularity the nature and extent of the duties to be performed as attendant care. Leathers v. City Coach Lines, Inc., I.C. File Number 972686, Full Commission Opinion and Award filed March 18, 2002. There is insufficient competent medical evidence to establish that attendant care was reasonable and necessary as a result of Decedent-Employee\u2019s compensable asbestosis. Plaintiffs claim for attendant care should be denied. N.C. Gen. Stat. \u00a7\u00a7 97-2(19); 97-25. (Emphasis added).\n2. Plaintiffs claim for attendant care services must under the law be, and is hereby, DENIED.\nThe Full Commission cites only Leathers v. City Coach Line Inc., I.C. File Number 972686, which is a Full Commission Opinion & Award filed 18 March 2002, for the legal proposition that \u2018\u2018competent medical evidence must show that a physician has prescribed attendant care as a necessary result of the accident[;] [t]he physician must also describe with a reasonable degree of particularity the nature and extent of the duties to be performed as attendant care.\u201d Defendants argue on appeal that a treating physician must prescribe attendant care in order for attendant care to be compensable, but Defendants cite only Leathers, and no other legal authority, for this proposition.\nLeathers states the following:\nIn determining this question, the Commission finds persuasive the guidance of the Virginia Supreme Court and several other jurisdictions that have used the following four-point standard to determine whether attendant care is reasonable and necessary treatment:\n... [T]he employer must pay for the care when it is performed by a spouse, if (1) the employer knows of the employee\u2019s need for medical attention at home as a result of the industrial accident; (2) the medical attention is performed under the direction and control of a physician, that is, a physician must state home nursing care is necessary as a result of the accident and must describe with a reasonable degree of particularity the nature and extent of duties to be performed by the spouse; (3) the care rendered by the spouse must be of the type usually rendered only by trained attendants and beyond the scope of normal household duties; and (4) there is a means to determine with proper certainty the reasonable value of the services performed by the spouse.\nWarren Trucking Co. v. Chandler, 221 Va. 1108, 277 S.E.2d 488 (1981).\nAfter the Full Commission purportedly adopted this four-part test for awarding attendant care benefits, the Commission in Leathers then cited a series of other jurisdictions, including Massachusetts, Minnesota, Montana, New Mexico, and Arkansas, for propositions of law related to the Warren Trucking four-part test.\nWhile the test, set forth in Leathers is a correct statement of Virginia law, we find no such holding in the opinions of this Court or the Supreme Court of this State. The Full Commission\u2019s interpretation of the statute governing attendant care benefits in Leathers is not binding on this Court. See Brooks v. McWhirter Grading Co., 303 N.C. 573, 581, 281 S.E.2d 24, 29 (1981) (\u201cAlthough the interpretation of a statute by an agency created to administer that statute is traditionally accorded some deference by appellate courts, those interpretations are not binding\u201d (quotation omitted)).\nAlthough the courts in Virginia, Kentucky, Minnesota, Montana, New Mexico, and Oklahoma have adopted either the four-part test in Warren Trucking or a similar modified test, courts in other jurisdictions have adopted a less restrictive test. When asked on appeal to adopt the Warren Trucking test, the Supreme Courts of Arizona and Vermont considered and rejected the application of the four-part test, favoring a \u201cflexible case-by-case approach\u201d and renouncing the \u201crigid framework\u201d of the four-part test, stating that it \u201c[did] not further the remedial purposes of workers\u2019 compensation statutes[.]\u201d Close v. Superior Excavating Co., 166 Vt. 318, 324, 693 A.2d 729, 732 (1997) (stating that \u201cwe do not believe that [Warren Trucking\u2019s] rigid framework is necessary to decide these cases[;] [t]he Commissioner, aware of Warren Trucking, similarly chose to adopt a more flexible case-by-case approach];] . . . [a]dopting such a test would also conflict with our longstanding practice of construing the workers\u2019 compensation statute liberally\u201d); see also Carbajal v. Indus. Comm\u2019n, 223 Ariz. 1, 4, 219 P.3d 211, 214 (2009) (concluding, \u201cas the Vermont Supreme Court did, that Warren Trucking\u2019s rigid framework does not further the remedial purposes of workers\u2019 compensation statutes],]\u201d and \u201c]u]nder Arizona law, compensability turns on the nature of the services, not on the identity of the provider\u201d).\nThis Court has previously upheld awards from the Industrial Commission contrary to the proposition that a physician\u2019s prescription is required for an award of attendant care benefits. See Ruiz, 148 N.C. App. at 680-81, 559 S.E.2d at 253 (holding that attendant care compensation was properly awarded when the claimant\u2019s brother testified and a life care planner, not a physician, \u201cdrafted a life care plan for [the claimant] . . . indicating] that [the claimant] would need attendant care for the remainder of his life\u201d even though the claimant\u2019s treating physician stated \u201cthat [claimant] has improved steadily, [claimant] can remain at home unattended, and vocational rehabilitation would be appropriate for [claimant]\u201d); London v. Snak Time Catering, 136 N.C. App. 473, 479, 525 S.E.2d 203, 207 (2000) (Award upheld when the claimant\u2019s wife testified, and a life care planning specialist opined, that the claimant was in need of twenty-four hour per day attendant care; although a physician testified, there was no mention of a physician\u2019s \u201cprescription\u201d for attendant care, and his testimony was not included in the Court\u2019s enumeration-of \u201cfindings of fact [that] are relevant to the Commission\u2019s conclusions of law\u201d that claimant was entitled to attendant care benefits); Godwin v. Swift & Co., 270 N.C. 690, 694, 155 S.E.2d 157, 160 (1967) (The testimony of the \u201cbusiness manager of the Friendly Elm Nursing Home\u201d and the claimant\u2019s brother, without mention of the claimant\u2019s treating physician, was sufficient to \u201csupport the finding that\u201d attendant care \u201cwas reasonably necessary for the welfare of the claimant\u201d).\nOur Supreme Court\u2019s decisions pertaining to the construction of the Workers\u2019 Compensation Act further suggest that the Commission\u2019s requirement of a physician\u2019s prescription in this case was too restrictive. See Keller v. Elec. Wiring Co., 259 N.C. 222, 225, 130 S.E.2d 342, 344 (1963) (\u201cThe Compensation Act requires that it be liberally construed to effectuate the objects for which it was passed \u2014 to provide compensation for workers injured in industrial accidents\u201d); see also Shaw v. U.S. Airways, Inc., 362 N.C. 457, 463, 665 S.E.2d 449, 453 (2008) (stating that \u201cthe Workers\u2019 Compensation Act should be liberally construed, whenever appropriate, so that benefits will not be denied upon mere technicalities or strained and narrow interpretations of its provisions\u201d (quotation omitted)).\nWe believe the liberal construction of the Workers\u2019 Compensation Act suggests, and the prior decisions by our appellate courts require, that the test for attendant care be less restrictive than that imposed by the Full Commission in this case. Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993) (The Court of Appeals has \u201cno authority to overrule decisions of [the] Supreme Court and [has] the responsibility to follow those decisions until otherwise ordered by the Supreme Court\u201d) (quotation omitted); In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989) (\u201c[A] panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court\u201d).\nFor the foregoing reasons, we decline to adopt the four-part test set forth in Warren Tracking. The law of this State does not support an approach in which a physician\u2019s prescription is the sole evidence upon which the question of attendant care compensation hinges. Instead, we explicitly adopt what we believe has already been the practice in North Carolina \u2014 a flexible case-by-case approach in which the Commission may determine the reasonableness and medical necessity of particular attendant care services by reviewing a variety of evidence, including but not limited to the following: a prescription or report of a healthcare provider; the testimony or a statement of a physician, nurse, or life care planner; the testimony of the claimant or the claimant\u2019s family member; or the very nature of the injury.\nSince neither this Court nor the North Carolina Supreme Court has adopted the \u201cfour-part\u201d test in Leathers for the determination of whether \u201cattendant care is reasonable and necessary],]\u201d the Commission\u2019s requirement that a physician\u2019s prescription is a prerequisite to attendant care compensation constitutes a misapprehension of law. \u201cIf the conclusions of the Commission are based upon a. .. misapprehension of the law, the case should be remanded so \u2018that the evidence [may] be considered in its true legal light.\u2019 \u201d Chambers, 360 N.C. at 611, 636 S.E.2d at 555; see also Holley, 357 N.C. at 231, 581 S.E.2d at 752. \u201cWhen the Commission acts under a misapprehension of the law, the award must be set aside and the case remanded for a new determination using the correct legal standard.\u201d Ballenger v. ITT Grinnell Industrial Piping, Inc., 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987) (concluding that the Commission\u2019s opinion set out an incorrect standard and remanding to the Commission for new findings of fact and conclusions of law applying the correct legal standard). Because the Commission\u2019s requirement in this case, that a physician\u2019s prescription is a prerequisite to attendant care compensation, constitutes a misapprehension of law, we remand the portion of the Opinion & Award denying attendant care benefits to the Commission for new findings of fact and conclusions of law applying the standard enumerated in this opinion. The remainder of the Commission\u2019s Opinion & Award is affirmed.\nAFFIRMED, in part, REVERSED and REMANDED, in part.\nChief Judge MARTIN and Judge ROBERT C. HUNTER concur.\n. Decedent died on 9 May 2005, before the entry of the Full Commission\u2019s Opinion and Award regarding his disability. On 22 July 2005, Brenda Gainey, the executrix of Decedent\u2019s estate at that time, filed an amended Form 18B seeking benefits for Decedent\u2019s death. Brenda Gainey also died before the completion of the appeals process with regard to benefits stemming from Decedent\u2019s death, and Wendy Shackleton (Plaintiff), the daughter of Brenda Gainey and Decedent, qualified as the executrix of both the estates of Brenda Gainey and Decedent. Plaintiff subsequently filed a Form 33 seeking death benefits and a separate Form 33 on the issue of attendant care.\n. The parties agree the Commission has in prior orders determined that Decedent\u2019s asbestosis arose out of his employment; Decedent\u2019s asbestosis was a compensable occupational disease; Decedent was totally and permanently disabled, and his asbestosis was a significant contributing factor in his disability. The sole question on appeal with regard to Plaintiffs first argument is whether the Commission erred by concluding that Decedent\u2019s asbestosis neither caused nor significantly contributed to Decedent\u2019s death.\n. We also note'that the statutes governing medical compensation in Arizona and Vermont are similar to the North Carolina statute. In Arizona, Ariz. Rev. Stat. \u00a7 234062(a), states that \u201c [promptly, upon notice to the employer, every injured employee shall receive medical, surgical and hospital benefits or other treatment!.] \u2022 \u2022 \u25a0\u201d The Vermont statute provides benefits for \u201creasonable surgical, medical and nursing services.\u201d Vt. Stat. Ann. tit. 21, \u00a7 640(a). Similarly, N.C. Gen. Stat. \u00a7 97-2(19) defines \u201cmedical compensation\u201d as \u201cmedical, surgical, hospital, nursing, and rehabilitative services, and medicines, sick travel, and other treatment].]\u201d\n. We further note that the proposition of law set forth by the Pull Commission in this case is even more restrictive than Warren Trucking-. The Commission required that a \u201cphysician has prescribed attendant care[,]\u201d while Warren Trucking only requires that \u201ca physician must state home nursing care is necessary].]\u201d\n. With regard to the evidentiary considerations associated with attendant care benefits, American Jurisprudence states the following: \u201cThe reasonableness and medical necessity of particular attendant care services can be established by a prescription or a report of a healthcare provider, through the testimony of the claimant or family member, or by the very nature of the injury itself. The testimony of the claimant may, depending on the particular circumstances, be sufficient to establish the compensability of the attendant care services that were rendered. Testimony of the claimant\u2019s wife or other family member who rendered the services, the treating physician, and the nurses who provided in-hospital care would also be helpful on that issue.\u201d 7 Am. Jur. 3d Proof of Facts 143 \u00a7 12 (1990).\n. See Ruiz, 148 N.C. App. 675, 559 S.E.2d 249; London, 136 N.C. App. at 479, 525 S.E.2d at 207; Godwin, 270 N.C. at 694, 155 S.E.2d at 160; Boylan v. Verizon Wireless, -N.C. App. \u2014, \u2014, 685 S.E.2d 155, 160 (2009), disc. review denied, 363 N.C. 853, 693 S.E.2d 918 (2010) (Evidence sufficient when a rehabilitative nurse opined that \u201cdue to her current physical condition, [the] Plaintiff needs some level of assistance in the performance of her daily living activities\u201d); Levens v. Guilford County Schs., 152 N.C. App. 390, 396, 567 S.E.2d 767, 771 (2002) (concluding that \u201cthe Commission did not err in ordering that. . . the details of any new home construction or remodeling should be governed by \u2018reasonableness and medical necessity,\u2019 without specifically ordering that [the claimant\u2019s treating physician\u2019s] specifications be followed\u201d).", "type": "majority", "author": "THIGPEN, Judge." } ], "attorneys": [ "Wallace and Graham, P.A., by Edward L. Pauley, for Plaintiff - Appellant.", "Teague, Campbell, Dennis & Gorham, L.L.P., by Bruce A. Hamilton, Tracy L. Jones, and Leslie B. Price, for DefendantsAppellees." ], "corrections": "", "head_matter": "WENDY SHACKLETON, as the Executrix of the Estate of BRENDA P. GAINEY, Deceased, and as the Executrix of the Estate of LEWARD BENMACK GAINEY, Deceased Employee Plaintiff v. SOUTHERN FLOORING & ACOUSTICAL COMPANY, Employer, and USF&G KEMPER INSURANCE COMPANY, Carrier, Defendants\nNo. COA10-734\n(Filed 19 April 2011)\n1. Workers\u2019 Compensation\u2014 death \u2014 not significantly caused by asbestosis \u2014 findings and conclusions\nThe Industrial Commission did not err by concluding that decedent\u2019s asbestosis neither caused nor significantly contributed to decedent\u2019s death. A doctor\u2019s testimony supported the Commission\u2019s findings, and in turn its conclusion, that asbestosis did not significantly contribute to decedent\u2019s death.\n2. Workers\u2019 Compensation\u2014 attendant care \u2014 reasonable and medically necessary \u2014 misapprehension of law \u2014 matter remanded\nThe Industrial Commission erred by concluding there was insufficient competent medical evidence to establish that attendant care was reasonable and necessary as a result of decedent\u2019s compensable asbestosis. The Commission\u2019s requirement that a physician\u2019s prescription was a prerequisite to attendant care compensation constituted a misapprehension of law. The matter was remanded for a new determination using the correct legal standard.\nAppeal by Plaintiff from Opinion and Award of the Full North Carolina Industrial Commission entered 22 March 2010 by Commissioner Christopher Scott. Heard in the Court of Appeals 10 January 2011.\nWallace and Graham, P.A., by Edward L. Pauley, for Plaintiff - Appellant.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Bruce A. Hamilton, Tracy L. Jones, and Leslie B. Price, for DefendantsAppellees." }, "file_name": "0233-01", "first_page_order": 241, "last_page_order": 259 }