NC COA Rules for Employer in Contested Attendant Care Attorney’s Fee Case
• Should plaintiff’s attorneys be barred from seeking relief from the Superior Court when pursuing attorney’s fees from attendant care payments?
• Does allowing a plaintiff’s attorney to recover a fee from attendant care substantially impact an employer and carrier’s right to direct medical treatment under N.C. Gen. Stat. § 97-25 and also substantially drive up the costs of claims through attendant care services?
These critical issues were successfully argued by Hedrick Gardner attorneys Kari Schultz, Duane Jones, and Paul Lawrence. The Court of Appeals has agreed with our arguments and established precedent to help combat the infringement into the defendants’ right to direct medical care.
In Keith Saunders v. ADP TotalSource, COA15-1390 (N.C. Ct. Appeals 6 September 2016), a dispute arose over the plaintiff’s entitlement to attendant care services provided by a family member. The Industrial Commission awarded attendant care. The plaintiff’s counsel also sought an attorney’s fee from the retroactive attendant care awarded; the Full Commission denied the attorney’s fees. The plaintiff’s counsel pressed the issue and appealed the decision to the superior court under N.C. Gen. Stat. § 97-90. The defendants faced an initial hurdle to establish standing to contest the award, as counsel argued the defendants had no dog in the fight. The superior court ultimately reversed the Full Commission’s denial of the fee and awarded plaintiff’s counsel 25% of the attendant care services. The defendants then turned to the Court of Appeals for relief.
The Court of Appeals agreed with the defendants on all issues. First, the Court of Appeals held that a defendant has the standing to contest an award of fees from medical compensation because an employer has the right to direct medical treatment. Because the monies for attorney’s fees would come from the same pool of money allocated for medical expenses, an employer would have standing to contest the awarding of those fees.
Second, the Court of Appeals agreed with the defendants that pursuant to the limited authority given to the superior courts under N.C. Gen. Stat. § 97-90, a superior court can only review the “reasonableness” of a fee contract between a plaintiff and a plaintiff’s counsel for a fee from indemnity compensation, not medical compensation. The Court of Appeals held that whether to award a fee from attendant care services is a legal decision to be made by the Industrial Commission.
While the ultimate decision as to whether the Industrial Commission can award an attorney’s fee out of medical compensation remains pending, regardless of what the Industrial Commission may have the power to do, the superior court cannot review the award.
Hedrick Gardner’s Workers’ Compensation Practice Group and Appellate Practice Group are committed to defending employer’s and carrier’s rights including containing the costs of medical treatment under the Workers’ Compensation Act.
If you have further questions regarding this case, or any other matter involving attendant care services, please contact Paul Lawrence, Kari Schultz, or Duane Jones.
| Kari Lee Schultz