{ "id": 4738158, "name": "FRANK DEREBERY v. PITT COUNTY FIRE MARSHALL", "name_abbreviation": "Derebery v. Pitt County Fire Marshall", "decision_date": "1986-08-29", "docket_number": "No. 456PA85", "first_page": "192", "last_page": "208", "citations": [ { "type": "official", "cite": "318 N.C. 192" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "332 S.E. 2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": -1 }, { "cite": "76 N.C. App. 67", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526587 ], "year": 1985, "opinion_index": -1, "case_paths": [ "/nc-app/76/0067-01" ] }, { "cite": "Fla. Stat. Ann. \u00a7 440.13", "category": "laws:leg_statute", "reporter": "Fla. Stat. Ann.", "year": 1971, "opinion_index": 0 }, { "cite": "10 S.E. 2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "218 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615891 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/218/0200-01" ] }, { "cite": "265 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "141 S.E. 2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573590 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0401-01" ] }, { "cite": "131 S.E. 2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562621 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0735-01" ] }, { "cite": "225 S.E. 2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560920 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0276-01" ] }, { "cite": "342 S.E. 2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] }, { "cite": "422 So. 2d 1023", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9560406 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/so2d/422/1023-01" ] }, { "cite": "429 So. 2d 7", "category": "reporters:state_regional", "reporter": "So. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "417 So. 2d 831", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9566892 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/so2d/417/0831-01" ] }, { "cite": "494 A. 2d 313", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "321" }, { "page": "322" }, { "page": "317" } ], "opinion_index": 0 }, { "cite": "99 N.J. 588", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1351584 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nj/99/0588-01" ] }, { "cite": "155 S.E. 2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "159-60" } ], "opinion_index": 0 }, { "cite": "270 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570183 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0690-01" ] }, { "cite": "2 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1930, "opinion_index": 0 }, { "cite": "215 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630539 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/nc/215/0519-01" ] }, { "cite": "345 S.E. 2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778695 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0206-01" ] }, { "cite": "63 S.E. 2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599630 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0088-01" ] }, { "cite": "173 S.E. 2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561636 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0417-01" ] }, { "cite": "139 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "148 S.E. 2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559875 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0560-01" ] }, { "cite": "346 S.E. 2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779479 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0670-01" ] }, { "cite": "188 S.E. 2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574896 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0300-01" ] }, { "cite": "281 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575103 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0657-01" ] }, { "cite": "146 S.E. 2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1966, "pin_cites": [ { "page": "486" }, { "page": "485", "parenthetical": "emphasis in original omitted" } ], "opinion_index": 0 }, { "cite": "266 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561051 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0419-01" ] }, { "cite": "332 S.E. 2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "76 N.C. 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App.", "case_ids": [ 8526587 ], "year": 1985, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0067-01" ] }, { "cite": "347 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "819" } ], "opinion_index": 1 }, { "cite": "494 A. 2d 313", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "315" }, { "page": "315" }, { "page": "317" } ], "opinion_index": 1 }, { "cite": "99 N.J. 588", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1351584 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nj/99/0588-01" ] } ], "analysis": { "cardinality": 1372, "char_count": 35807, "ocr_confidence": 0.82, "pagerank": { "raw": 5.610734856561402e-07, "percentile": 0.9481261262722267 }, "sha256": "11856859099ded7d23c1f27b18e84faef3724e838a73340f73bc65f4169930bf", "simhash": "1:292df96b440ae65a", "word_count": 5703 }, "last_updated": "2023-07-14T18:03:08.889643+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice BRANCH and Justice MEYER join in this dissenting opinion." ], "parties": [ "FRANK DEREBERY v. PITT COUNTY FIRE MARSHALL" ], "opinions": [ { "text": "EXUM, Justice.\nThis is a workers\u2019 compensation case. The parties stipulated that plaintiff, Frank Leslie Derebery, (1) sustained an injury by accident arising out of and in the course of employment as a volunteer fireman with defendant, Pitt County Fire Marshall, and (2) is totally and permanently disabled as a result of that injury. The Industrial Commission computed plaintiff s average weekly wages with reference to the higher paid of two part-time employments which plaintiff held. The Commission also ordered defendant to provide plaintiff with a wheelchair accessible place to live.\nBoth parties appealed to the Court of Appeals. The plaintiff contended that the Commission erred in refusing to combine his wages from both employments to compute his average weekly wages. Defendant contended that the award of housing was not permitted under the Workers\u2019 Compensation Act. The Court of Appeals, relying on Barnhardt v. Cab Co., 266 N.C. 419, 146 S.E. 2d 479 (1966), held that the Commission properly refused to combine plaintiffs wages because the higher paid of the two was the \u201cemployment wherein he principally earned his livelihood,\u201d as defined by N.C.G.S. \u00a7 97-2\u00cd5). The Court also held that the provision of N.C.G.S. \u00a7 97-29 \u201crequiring payment for \u2018other treatment or care\u2019 . . . can[not] be reasonably interpreted to extend the liability to provide a residence for an injured employee.\u201d Derebery v. Fire Marshall, 76 N.C. App. at 72, 332 S.E. 2d at 97.\nThe questions presented by this appeal are whether the Court of Appeals erred in (1) affirming the Commission\u2019s refusal to consider both of plaintiffs part-time employments when calculating his average weekly wage, and (2) reversing the Commission\u2019s award of wheelchair accessible housing. We answer both questions affirmatively and reverse the Court of Appeals decision on both points.\nI.\nAt the time he was injured plaintiff was single, nineteen years old and lived with his parents as he had all his life. He worked part time for Sonic Drive-In earning $74.41 a week and part time for Bill Askews Motors earning $87.40 a week.\nPlaintiffs accident paralyzed his legs. He will always have to rely principally on a wheelchair for mobility. Plaintiffs physician stated, \u201cwith him [plaintiff] essentially being in a wheelchair almost entirely he would need architecturally accessible housing.\u201d\nSeveral months after the accident plaintiff received rehabilitation therapy. Plaintiff became capable of living independently. During the time at the rehabilitation center, he expressed a desire to live apart from his parents.\nPlaintiff returned to his parents\u2019 rented home after the stint at the rehabilitation center. The owner of the home has refused to permit structural modifications to the house. The rear entrance and four of the eight rooms in the house, including the kitchen and bathroom, will not admit plaintiffs wheelchair. As a result, plaintiff cannot get to the stove, must take sponge baths and use a portable commode chair.\nPlaintiff introduced into evidence plans for a mobile home, the Enabler, which was designed to accommodate a wheelchair. A registered nurse for the Industrial Commission, Jerri McLamb, testified:\nI feel that the mobile home described in Plaintiffs Exhibit Number 1 would meet Leslie\u2019s needs. I am working with five or six paraplegics through my job with the North Carolina Industrial Commission. It is also important to deal with the emotional needs that occur with spinal cord injuries. The emotional problems are certainly most important and that will determine how functional they\u2019re going to be and how well they can be rehabilitated.\nWith this evidence before it, the Commission, adopting the Opinion and Award of the deputy commissioner, made the following pertinent findings and conclusions of law:\nFindings of Fact\n2. During 1982 and up until 4 March 1983 plaintiff worked on a part time basis for Sonic Drive-In Theater. His average weekly wage with such theater was $74.41.\n3. In late 1982 or early 1983 plaintiff also started a job with Bill Atkins [sic] Motors and worked for such company until 4 March 1983. His average weekly wage with the motor company was $87.40. His principal employment was with the motor company and he principally earned his livelihood in such employment.\n4. After receiving treatment for his injury by accident plaintiff returned to his home to live with his mother and father. Such home is not suitable for plaintiffs needs as a permanent and totally disabled person. However, the owner of the home does not desire any changes made in his property and no changes have, therefore, been made in the interior of the home.\n5. Plaintiff needs to live alone. He is able to take care of his own personal needs. Defendant should furnish plaintiff with a completely wheelchair accessible place to live and provide all reasonable and necessary care for plaintiffs well-being.\nConclusions of Law\n1. Plaintiff is permanently and totally disabled as a result of his injury by accident and he is, therefore, entitled to compensation at the rate of $58.27 per week commencing on the date of his accident and continuing for his lifetime. G.S. 97-29; G.S. 97-2(5); . . .\n2. Defendant shall furnish plaintiff with all reasonable and necessary treatment or care for the well-being of plaintiff which includes an appropriate place for plaintiff to live in view of his condition.\nUpon the foregoing findings of fact and conclusions of law, the Commission entered an award that defendant shall \u201cpay plaintiff compensation at the rate of $58.27 per week and furnish plaintiff with an appropriate place to live in view of his disabled condition\nII.\nPlaintiff contends first that the Court of Appeals erred in affirming the method employed by the Industrial Commission to calculate plaintiffs average weekly wages. At the time plaintiff was injured he was earning $74.41 working part time for one employer and $87.40 per week working part time for another employer. The Commission considered only the wages earned in the employment where plaintiff earned the greater wages to calculate his average weekly wage. Plaintiff contends the Commission should have considered the wages in both part-time employments. We agree.\nThe last paragraph of N.C.G.S. \u00a7 97-2(5) provided on the date of plaintiffs accident:\nIn case of disabling injury or death to a volunteer fireman or member of an organized rescue squad or duly appointed and sworn member of an auxiliary police department organized pursuant to G.S. 160A-282 or senior members of the State Civil Air Patrol functioning under Article 11, Chapter 143B, under compensable circumstances, compensation payable shall be calculated upon the average weekly wage the volunteer fireman or member of an organized rescue squad or member of an auxiliary police department or senior member of the State Civil Air Patrol was earning in the employment wherein he principally earned his livelihood as of the date of injury.\nN.C.G.S. \u00a7 97-2(5) (1979). The Commission interpreted the statute as if the legislature employed the word \u201cprincipally\u201d to distinguish among possible nonvolunteer fire department jobs a volunteer fireman may hold. The cardinal rule of statutory construction is that legislative intent controls. In seeking to ascertain this intent, courts should consider the language of the statute, the spirit of the Act and what the statute seeks to accomplish. Crumpton v. Mitchell, 303 N.C. 657, 281 S.E. 2d 1 (1981); Stephenson v. Durham, 281 N.C. 300, 188 S.E. 2d 281 (1972). The statute does contemplate that persons to whom it applies might have multiple employments. The context of the statute, however, demarcates a person\u2019s voluntary and remunerative employments. The legislature employed the term \u201cprincipally\u201d to distinguish the fireman\u2019s volunteer employment from his other, remunerative employment or employments, ie., \u201cthe employment wherein he principally earned his livelihood.\u201d The statute insures that the injured volunteer fireman receives compensation commensurate with his proven earning ability as demonstrated by the wages he receives for work done other than in his capacity as a volunteer fireman.\nOur interpretation comports with the purpose of the average weekly wage basis as a measure of the injured employee\u2019s earning capacity. See A. Larson, The Law of Workmen\u2019s Compensation \u00a7 60.00 (1986). This purpose is reflected in the second paragraph of N.C.G.S. \u00a7 97-2(5) which states that if all other statutorily provided measures for computing average weekly wages fail, an employee\u2019s average weekly wages must be determined by calculating \u201cthe amount which the injured employee would be earning were it not for the injury.\u201d N.C.G.S. \u00a7 97-2(5).\nDefendant cites Barnhardt v. Cab Co., 266 N.C. 419, 146 S.E. 2d 479 (1966), in support of his argument that the Commission properly refused to combine plaintiffs earnings to calculate his average weekly wage. In that case claimant worked full time for National Cash Register Company at a weekly wage of $68.00. The claimant also was employed by the Yellow Cab Company part time at a weekly wage of $26.90. Plaintiff was shot in the head and became totally and permanently disabled while working for the cab company. The Industrial Commission combined plaintiffs weekly wages in the part-time and full-time employments to arrive at his average weekly wage. The superior court affirmed the Industrial Commission\u2019s award. This Court reversed: \u201cWe hold that, in determining plaintiffs average weekly wage, the Commission had no authority to combine his earnings from the employment in which he was injured with those from any other employment.\u201d Barnhardt v. Cab Co., 266 N.C. at 429, 146 S.E. 2d at 486. The Court reasoned that combining wages would be unfair to the employer\u2019s carrier who charged premiums based on the amount of compensation paid the employee and also to the employer who would have to pay higher premiums.\nThe Court also made the following observation in an effort to strengthen its holding:\nIt is also noted that, even in making the exception for volunteer firemen, the North Carolina Legislature did not permit a combination of wages, but adopted as its basis the wages of his principal employment. Had plaintiff here been injured while serving as a volunteer fireman, instead of while driving a taxi, his compensation would have been based on his average weekly wages from National.\nId. at 429, 146 S.E. 2d at 485 (emphasis in original omitted).\nBarnhardt is distinguishable. Plaintiff here was totally and permanently disabled working as a volunteer fireman, not while working for either of his two part-time employers. Furthermore, the justification relied on by the Court in rendering that decision does not apply here. Defendant and its carrier must have known that a volunteer fireman would be employed in another job or jobs and receive compensation therefrom. The dictum in Barnhardt which suggests that N.C.G.S. \u00a7 97-2(5) does not permit a combination of a volunteer fireman\u2019s outside wages is overruled.\nWe hold the Court of Appeals erred in upholding the Commission\u2019s refusal to take into account plaintiffs wages from both employments to compute the average weekly wage plaintiff earned at his principal employment.\nIII.\nPlaintiff next contends that the Court of Appeals erred by reversing the Industrial Commission\u2019s award insofar as it required defendant to furnish plaintiff with wheelchair accessible housing.\nBefore and after his accident, plaintiff has lived with his parents in their rented home. The owner of the house refuses to allow plaintiffs family to modify the house structurally to accommodate plaintiffs wheelchair. Defendant repeatedly has expressed a willingness to provide structural modifications to plaintiffs present residence. He argues, however, that the Act stops short of compelling him to furnish plaintiff with alternate housing accessible by wheelchair.\nThe parties agree the applicable statutory provisions are contained in the following part of N.C.G.S. \u00a7 97-29:\nIn cases of total and permanent disability, compensation, including reasonable and necessary nursing services, medicines, sick travel, medical, hospital, and other treatment or care of [sic] rehabilitative services shall be paid for by the employer during the lifetime of the injured employee.\nN.C.G.S. \u00a7 97-29. The Court of Appeals held that an employer\u2019s statutory duty to provide \u201cother treatment or care\u201d does not extend to furnishing a residence for an injured employee. Initially, we must decide whether these statutory duties reasonably could be construed to include the duty to furnish alternate housing. We believe that they can.\nWe have long recognized that the Workers\u2019 Compensation Act is remedial legislation. The Act should be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents and its benefits should not be denied by a technical, narrow and strict construction. See Gunter v. Dayco Corp., 317 N.C. 670, 346 S.E. 2d 395 (1986); Cates v. Construction Co., 267 N.C. 560, 148 S.E. 2d 604 (1966); Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E. 2d 857 (1965).\nThis liberal construction in favor of claimants comports with the statutory purpose of allocating the cost of work-related injuries first to industry and ultimately to the consuming public. Petty v. Transport, Inc., 276 N.C. 417, 173 S.E. 2d 321 (1970); Vause v. Equipment Co., 233 N.C. 88, 63 S.E. 2d 173 (1951).\nThe legislature\u2019s history of expanding the medical benefits provided by N.C.G.S. \u00a7 97-29 supports our construing the statute generously in favor of claimants. When the Workers\u2019 Compensation Act was enacted, N.C.G.S. \u00a7 97-29 made no provision for medical expenses. See 1929 N.C. Sess. Laws ch. 120, \u00a7 29. N.C.G.S. \u00a7 97-25 was the only provision in the Act which obligated the employer to provide such expenses. N.C.G.S. \u00a7 97-25 required the employer to furnish:\nMedical, surgical, hospital, . . . and other treatment, including medical and surgical supplies as may reasonably be required, for a period not exceeding ten weeks from date of injury 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, . . . shall be provided by the employer.\n1929 N.C. Sess. Laws ch. 120, \u00a7 25. Under these provisions an employer was not obligated to pay the expenses of medical treatment given more than ten weeks after the date of injury unless the additional treatment would lessen the period of disability. See Little v. Ventilator Co., 317 N.C. 206, 345 S.E. 2d 204 (1986). Thus, where an employee suffered total and permanent disability, an employer was not obligated to pay medical expenses beyond a ten-week period. See Millwood v. Cotton Mills, 215 N.C. 519, 2 S.E. 2d 560 (1930).\nThe legislature filled this void in the Act in 1947 by amending N.C.G.S. \u00a7 97-29 to provide as follows:\n[IJn cases in which total disability is due to paralysis resulting from injuries to a spinal cord, compensation including reasonable and necessary medical and hospital care shall be paid during the life of the injured employee.\n1947 N.C. Sess. Laws ch. 823, \u00a7 1.\nIn 1953 the Act was extended to make its provisions applicable to brain injuries. 1953 N.C. Sess. Laws ch. 1135, \u00a7 1. In 1971 it was extended to include the loss of hands, arms, feet, legs or eyes and to require the employer to provide other \u201ccare.\u201d 1971 N.C. Sess. Laws ch. 321, \u00a7 1. In 1973 the Act was amended to require employers to provide \u201crehabilitative services\u201d in addition to \u201cother treatment or care\u201d and was extended to totally and permanently disabled employees without regard to the nature of their injury. 1973 N.C. Sess. Laws ch. 1308, \u00a7 2. This legislative history of continued expansion of the scope of N.C.G.S. \u00a7 97-29 and finally the inclusion of the words \u201cother treatment or care or rehabilitative services\u201d supports a conclusion that the legislature intends for the statute to include wheelchair accessible housing.\nThe decisions of this Court also support construing \u201cother treatment or care\u201d to include wheelchair accessible housing. In Godwin v. Swift & Co., 270 N.C. 690, 155 S.E. 2d 157 (1967), the claimant suffered a head injury which left him blind, partially paralyzed, emotionally unstable and mentally infirm. The Commission concluded that plaintiff was totally and permanently disabled and awarded medical, hospital and nursing expenses for the remainder of claimant\u2019s life. The Commission found that claimant needed around-the-clock attention and care. The Commission concluded plaintiff would be better off under the care of his brother and sister-in-law than in a nursing home. The Commission required the employer to pay the brother and his wife $65 per week as compensation for their services on the ground that these services constituted \u201cother treatment and care\u201d not embraced in the medical award for medical, hospital and nursing expenses. This Court upheld the Commission\u2019s award, reasoning:\nThe statute makes provision for payment for named essential items and services, and adds \u2018other treatment or care.' The provision for other treatment or care goes beyond and is in addition to the specifics set out in the statute.\nId. at 693, 155 S.E. 2d at 159-60.\nCourts in at least two other jurisdictions with statutory provisions similar to ours have concluded that \u201ctreatment\u201d or \u201ccare\u201d includes the duty to furnish alternate, wheelchair accessible housing. In Squeo v. Comfort Co., 99 N.J. 588, 494 A. 2d 313 (1985), the Supreme Court of New Jersey concluded that construction of a self-contained apartment \u201ccould constitute \u2018medical, surgical or other treatment . . . necessary to cure and\u2019 or \u2018other appliance\u2019 within the meaning of the applicable statute.\u201d The claimant was a twenty-four-year-old wheelchair-bound quadriplegic. He requested that his employer provide an apartment attached to his parent\u2019s home. After his injury, he was placed in a nursing home with predominantly elderly patients. The nursing home environment caused severe depression. Furthermore, he suffered a number of protracted physical ailments which contributed to his emotional unrest. He attempted suicide three times. Claimant testified he desired to \u201cget on with life\u201d but stated the institutional setting prevented him from doing so. An expert in neuropsychiatry testified on behalf of claimant that claimant had developed ways of adjusting to quadriplegia and aspired to attend college and become gainfully employed. His depression arose from a conflict between his ambitions and his perception of being trapped in a nursing home with people with whom he had nothing in common.\nThe New Jersey Supreme Court reviewed a number of cases from several jurisdictions before concluding:\nIn sum, courts in other jurisdictions governed by statutes similar to ours have been generous in their liberal construction of the language in question. The phrases \u2018other treatment\u2019 and \u2018appliance\u2019 have assumed various forms, ranging from permanent round-the-clock nursing care to the rent-free use of a modular home.\nId. at 603, 494 A. 2d at 321.\nThe Court went on to affirm the Commission\u2019s award of alternate housing:\nApart from his quadriplegia, which cannot be reversed, and physical complications, which are treated as they arise, Squeo has suffered serious psychological setbacks. No one disputes that these emotional problems are a result of his work-connected injury and its consequences. Nor is it disputed that Squeo\u2019s depression is so aggravated by living in the nursing home that he has tried to kill himself on three occasions. We find these three factors \u2014Squeo\u2019s unremitting physical ailments, his age and his having lived independently of his parents for several years prior to the accident, and his psychological dread of institutional living, culminating in three suicide attempts \u2014are sufficient to consider this an unusual case calling for unusual relief.\nId. at 604-05, 494 A. 2d at 322.\nIn Peace River Elec. Corp. v. Choate, 417 So. 2d 831 (Fla. Dist. Ct. App. 1982), review denied, 429 So. 2d 7 (Fla. 1983), the Court upheld an award for the rent-free use of a modular home to replace a dilapidated makeshift dwelling consisting of an ancient trailer and a ramshackled wooden shed that were impossible to negotiate by wheelchair. The Court rejected the employer\u2019s proposal to remodel plaintiffs existing dwelling because \u201cnothing short of bulldozing the dwelling would serve to remedy the situation.\u201d Id. at 832. However, claimant\u2019s request for alternate housing was denied where the employer had obtained rental housing for claimant and agreed to make modifications as were required. Lane v. Walton Cottrel Assoc., 422 So. 2d 1023 (Fla. Dist. Ct. App. 1982). Both decisions were handed down under a statute which required the employer to furnish \u201cremedial treatment, care and attendance.\u201d\nThe principle which emerges from these cases is that an employer must furnish alternate, wheelchair accessible housing to an injured employee where the employee\u2019s existing quarters are not satisfactory and for some exceptional reason structural modification is not practicable. We conclude on the basis of the legislative history surrounding N.C.G.S. \u00a7 97-29, this Court\u2019s prior interpretation of that statute and the persuasive authority of other courts interpreting similar statutes that the employer\u2019s obligation to furnish \u201cother treatment or care\u201d may include the duty to furnish alternate, wheelchair accessible housing.\nIn this case the Industrial Commission found as fact that plaintiffs existing quarters \u201care not suitable for plaintiffs needs as a permanent and totally disabled person\u201d and \u201cthe owner of the home does not desire any changes made in his property and no changes have, therefore, been made.\u201d We believe these findings exemplify the type of unusual case which justifies the Commission\u2019s conclusion of law that \u201cDefendant shall furnish plaintiff . . . an appropriate place for plaintiff to live in view of his condition.\u201d\nDefendant contends the evidence does not support the Commission\u2019s findings that plaintiffs existing residence is not suitable to plaintiffs needs. He claims the evidence shows at most that plaintiff requests new housing because of a desire to live independently of his parents.\nWe disagree. As this Court stated in Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E. 2d 798 (1986):\nThe scope of appellate review of questions of fact is limited. The Industrial Commission is constituted as the fact-finding body in workers\u2019 compensation cases. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E. 2d 577 (1976). The authority to find facts necessary for an award is vested exclusively in the Commission. Moore v. Electric Co., 259 N.C. 735, 131 S.E. 2d 356 (1963). The Commission\u2019s fact findings will not be disturbed on appeal if supported by any competent evidence even if there is evidence in the record which would support a contrary finding. Jones v. Desk Co., 264 N.C. 401, 141 S.E. 2d 632 (1965). Where, however, there is a complete lack of competent evidence in support of the findings they may be set aside. Click v. Freight Carriers, 300 N.C. 164, 265 S.E. 2d 389 (1980); Logan v. Johnson, 218 N.C. 200, 10 S.E. 2d 653 (1940).\nId. at 432-33, 342 S.E. 2d at 803.\nWe believe the record contains evidence which supports the Commission\u2019s findings disputed by defendant. The evidence tends to show the following: Plaintiffs present home has not been modified to accommodate his wheelchair. The owners will not permit such modification. Plaintiff cannot enter the bathroom or kitchen. As a result, he cannot use the bath or toilet facilities and he cannot prepare meals for himself. Plaintiffs physician acknowledged that plaintiff needs architecturally modified housing. We believe this evidence supports the Commission\u2019s finding of fact that plaintiffs present residence is not satisfactory.\nFor all the reasons stated above the decision of the Court of Appeals is reversed and this case is remanded with instructions for further remand to the Industrial Commission in order that it may re-enter its award for wheelchair accessible housing and calculate plaintiffs average weekly wage using a method of computation consistent with the principles stated in this opinion.\nReversed and remanded.\n. This statute is reprinted infra, p. 196.\n. This statute is reprinted infra, p. 199.\n. The word \u201cof\u201d between care and rehabilitative services in the statute is a misprint. It should be \u201cor.\u201d See 1973 N.C. Sess. Laws ch. 1308, \u00a7 2.\n. \u201cN.J.S.A. 34-15:15 in pertinent part provides:\nThe employer shall furnish to the injured worker such medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible; * * * the Division of Workers\u2019 Compensation after investigating the need of the same and giving the employer an opportunity to be heard, shall determine that such physicians\u2019 and surgeons\u2019 treatment and hospital services are or were necessary and that the fees for the same are reasonable and shall make an order requiring the employer to pay for or furnish the same.\n* # \u2022 * *\nWhen an injured employee may be partially or wholly relieved of the effects of a permanent injury, by use of an artificial limb or other appliance, which phrase shall also include artificial teeth or glass eye, the Division of Workers\u2019 Compensation, acting under competent medical advice, is empowered to determine the character and nature of such limb or appliance, and to require the employer or the employer\u2019s insurance carrier to furnish the same.\u201d\nId. at 596, 494 A. 2d at 317.\n. At the time of these decisions, Florida\u2019s Workers\u2019 Compensation Act provided:\n\u201c[T]he employer shall furnish to the employee such remedial treatment, care, and attendance under the direction and supervision of a qualified physician or surgeon or other recognized practitioner, nurse, or hospital and for such period as the nature of the injury or the process of recovery may require, including medicines, crutches, artificial members, and other apparatus. . . .\u201d\nFla. Stat. Ann. \u00a7 440.13 (West 1971).", "type": "majority", "author": "EXUM, Justice." }, { "text": "Justice Billings\ndissenting in part and concurring in part.\nI dissent from Part III of the majority opinion.\nIn concluding that the defendant must provide wheelchair-accessible housing to the plaintiff, the majority says that this is an \u201cunusual case,\u201d apparently assuming that the decision will have limited applicability. I find nothing very unusual about a young man desiring to move out of his parents\u2019 home to live independently. Neither is it unusual for a wheelchair-bound individual to need wheelchair-accessible housing. The fact that the owner of the plaintiffs parents\u2019 present home will not permit alteration of the house does not establish such an \u201cunusual\u201d event as to justify imposing upon the defendant an obligation that he otherwise would not have. The preference of the plaintiffs parents to continue renting this particular house which is unsuitable for their son, added to his perfectly natural desire to live independently, is no basis for requiring the defendant to assume the total cost of alternative housing for the plaintiff.\nThe Workers\u2019 Compensation Act provides disability compensation as a substitute for lost wages. That substitute for wages is the employer\u2019s contribution to those things which wages ordinarily are used to purchase \u2014 food, clothing, shelter, etc. There is no provision in the Workers\u2019 Compensation Act for the employer, in addition to providing the statutory substitute for wages, to provide the ordinary necessities of life, although in addition to weekly compensation based upon the employee\u2019s wages the employer must provide compensation for \u201creasonable and necessary nursing services, medicines, sick travel, medical, hospital, and other treatment or care [or] rehabilitative services.\u201d N.C.G.S. \u00a7 97-29 (1985). To construe \u201cother treatment or care\u201d to include basic housing is not a \u201cliberal construction,\u201d 318 N.C. 192, 199, 347 S.E. 2d 814, 819, of the statute; it is clearly a misconstruction. If housing is the kind of \u201ctreatment or care\u201d intended by the statute, are not food, clothing and all of the other requirements for day-to-day living equally necessary for the employee\u2019s \u201ctreatment or care\u201d? In the context of the Workers\u2019 Compensation Act, the \u201ctreatment or care [or] rehabilitative services\u201d clearly relate to those necessitated by the employee\u2019s work-related injury.\nThe majority\u2019s discussion of the history of N.C.G.S. \u00a7 97-29 clearly indicates the limitation intended by the General Assembly. Although originally limited to medical and hospital care necessitated by paralysis resulting from injuries to the spinal cord (slip op. p. 11), the Act was expanded to include disability from other causes and to expand the kind of care or treatment allowed so that it would not be limited to treatment or care provided in a hospital. None of these amendments expanded the statute to include anything beyond the care, treatment or rehabilitative services related to the employee\u2019s medical condition. If the care, treatment or rehabilitative services appropriate for the employee\u2019s condition necessitate residence in a special facility, such as a nursing home, hospital or rehabilitation center, the employer must pay for the entire cost, including residence at the facility, because residence there is part and parcel of the treatment, care or rehabilitative services.\nAn analysis of the case of Squeo v. Comfort Control Corp., 99 N.J. 588, 494 A. 2d 313 (1985), relied upon by the majority, shows the inapplicability of that case to the present one, even if we were persuaded by its reasoning. In that case, the treating physician described the plaintiffs history and condition as follows:\n[Claimant] has had a terribly hard time. The man has had just about every complication that God ever put on this earth for him .... [T]he first year was devastating . . . because he went out of one problem into another and then when we saw him, immediately we had to do something to his urinary tract and surgery and then ... we had problems with skin breakdowns, rashes, you name the complications, this poor fellow had it. Then he developed a curvature of the spine and [had to have] corrective surgery and . . . he\u2019s had one medical difficulty after another.\nId. at 591, 494 A. 2d at 315.\nFurther evidence established that the plaintiff had lived independently of his parents for several years before his accident. After the accident, he was confined to a nursing home which was occupied primarily by elderly patients. Claimant became severely depressed as a result of the institutional living and nursing home environment and, on three occasions while in the nursing home, attempted suicide. The testimony of an expert in neuropsychiatry established that, whereas claimant had adjusted to his quadriplegia and wanted to get on with his life by attending college and becoming employed, he became and remained depressed by \u201cthe conflict between his ambitions and his perception of his future in the nursing home with older people with whom he had nothing in common.\u201d Id. at 592, 494 A. 2d at 315. The physician testified further that claimant believed life in a nursing home was not worth living and that claimant would continue to attempt suicide as long as he remained in the nursing home. Even then, the court only required that a suitable addition be added to the claimant\u2019s parents\u2019 home because under the facts of the case the apartment was a reasonable and necessary medical expense (necessary for the claimant whose condition required care, not independence). The court additionally required that the employer\u2019s interest in the house be secured by a mortgage executed by the claimant\u2019s parents \u201cso that if Squeo should no longer use the apartment, the employer would be compensated for any significant value the apartment may add to the property in the event it is sold, rented, or mortgaged.\u201d Id. at 596, 494 A. 2d at 317.\nThe attempt by the plaintiff to rely upon that portion of N.C. G.S. \u00a7 97-29 which requires the employer to provide \u201crehabilitative services\u201d likewise fails. In the first place, a common-sense interpretation of the words makes it obvious that \u201cservices\u201d does not include housing. Additionally \u201crehabilitation falls under two major headings: physical and vocational,\u201d 2 A. Larson, The Law of Workmen\u2019s Compensation \u00a7 61.21 (1986), and the providing of housing to the plaintiff will result in neither his medical nor vocational rehabilitation.\nIn the case sub judice, if we assume that the evidence supports a conclusion that it would be best for the plaintiff to live independently, I submit that (1) the need for the plaintiff to live independently is nothing more than the natural desire of a young man upon reaching his early 20s to establish his own life independent of his parents and is not the effect of his injury, and (2) the only features of the plaintiffs proposed new residence which are necessitated by his injury are those which make it wheelchair-accessible. If we construe the statute to impose any obligation upon the employer to aid the plaintiff in establishing his independence from his parents, it should be only to alter housing provided by the plaintiff to make it suitable to his special needs, i.e., wheelchair-accessible \u2014 an obligation which the defendant has consistently been willing to assume.\nI concur in the remainder of the Court\u2019s opinion.\nChief Justice BRANCH and Justice MEYER join in this dissenting opinion.\n. \u201c1. The occupation or duties of a servant. 2. Employment in duties or work for another; especially, such employment for a government .... 6. Work done for others as an occupation or business .... 11. An act of assistance or benefit to another or others; favor . . . .\u201d The American Heritage Dictionary, New College Edition (1980).", "type": "concurring-in-part-and-dissenting-in-part", "author": "Justice Billings" } ], "attorneys": [ "Marvin Blount, Jr. and Charles Ellis for plaintiff appellant.", "Teague, Campbell, Dennis & Gorham by C. Woodrow Teague and Linda Stephens for defendant appellee.", "Academy of Trial Lawyers by Paul J. Michaels and Gregory M. Martin, amicus curiae." ], "corrections": "", "head_matter": "FRANK DEREBERY v. PITT COUNTY FIRE MARSHALL\nNo. 456PA85\n(Filed 29 August 1986)\n1. Master and Servant \u00a7 71\u2014 workers\u2019 compensation \u2014 computation of weekly wage \u2014wages from two part-time jobs to be considered\nThe Court of Appeals erred in upholding the Industrial Commission\u2019s refusal to take into account plaintiffs wages from both part-time employments to compute the average weekly wage plaintiff earned at his principal employment.\n2. Master and Servant \u00a7 69\u2014 workers\u2019 compensation \u2014 award of wheelchair accessible housing proper\nPursuant to N.C.G.S. \u00a7 97-29 an employer\u2019s obligation to furnish \u201cother treatment or care\u201d may include the duty to furnish alternate, wheelchair accessible housing. In this case the Industrial Commission properly required defendant to furnish such alternate housing where it found that plaintiffs existing quarters were not suitable for his needs as a permanent and totally disabled person and the owner of the home which plaintiff shared with his parents was not willing to make permit structural changes in the house.\nJustice Billings dissenting in part and concurring in part.\nChief Justice Branch and Justice Meyer join in this dissenting opinion.\nOn plaintiff\u2019s petition for further review pursuant to N.C.G.S. \u00a7 7A-31 of a decision of the Court of Appeals, 76 N.C. App. 67, 332 S.E. 2d 94 (1985), in part reversing a workers\u2019 compensation award and in part affirming the denial of an award by the Industrial Commission.\nMarvin Blount, Jr. and Charles Ellis for plaintiff appellant.\nTeague, Campbell, Dennis & Gorham by C. Woodrow Teague and Linda Stephens for defendant appellee.\nAcademy of Trial Lawyers by Paul J. Michaels and Gregory M. Martin, amicus curiae." }, "file_name": "0192-01", "first_page_order": 216, "last_page_order": 232 }