Payment for Adaptive Housing and Transportation

Wednesday, June 11, 2014 | 0

Santos Tinajero was rendered quadriplegic after sustaining an admittedly compensable injury. His condition required 24-hour attendant care, and he was initially transferred to a rehabilitative center. Tinajero was subsequently transferred to an assisted living facility, which he contended was not a suitable living environment, and he requested placement in an apartment with 24-hour attendant care. Defendants declined to pay for Tinajero’s housing and a hearing was held on that and other issues.
 
The deputy commissioner concluded Tinajero was entitled to lifetime benefits, but that defendants were not obligated to provide adaptive housing. The deputy commissioner also found that the life care plan submitted by Tinajero was not an objective and unbiased assessment of his needs. Tinajero appealed to the full commission, which found that Tinajero’s placement in the assisted-living facility was inappropriate in that it endangered his physical and psychological health. The full commission affirmed the deputy commissioner’s opinion regarding the life care plan, but concluded Tinajero was entitled to have defendants pay for the preparation of a life care plan by a qualified life care planner.
 
The parties appealed to the Court of Appeals, which dismissed the appeal as interlocutory due to the outstanding issue of completion of a satisfactory life care plan. The parties subsequently agreed to a new life care plan evaluation by Ms. Susan Caston, and Tinajero sought to take the depositions of Ms. Caston and Mr. Robert May, who peer-reviewed the previous life care plan, for the limited purpose of authenticating Mr. May’s report. The full commission denied Tinajero’s motions. The commission also found that defendants were not required to purchase or lease adaptive transportation, as defendants had provided adequate transportation; however, if Tinajero purchased his own vehicle, defendants were obligated to modify the vehicle to accommodate Tinajero’s disability. The Commission ordered an occupational therapist be consulted to make recommendations regarding accessibility options for Tinajero in his apartment. Finally, the commission found defendants did not unreasonably defend the claim and refused to assess attorneys’ fees. Both parties appealed to the Court of Appeals.
 
On May 6, 2014, in Tinajero v. Balfour Beatty Infrastructure, the Court of Appeals first considered whether the commission properly required defendants to pay the rental cost of handicapped accessible housing in light of defendants’ argument that housing is an ordinary expense of life. The court rejected defendants’ argument and held the commission did not abuse its discretion since (1) Tinajero had no dwelling of his own that could be renovated to provide handicapped accessible housing, (2) defendants had continuously paid the full cost of housing for Tinajero since his accident so long as he resided in a skilled nursing home or long-term care facility, and (3) the commission found that living in such facilities was not in Tinajero’s medical best interest.
                                                               
The court next considered whether the commission erred in refusing to allow Tinajero to conduct depositions of Ms. Caston and Mr. May and concluded error as to Ms. Caston’s deposition but not as to Mr. May's. Tinajero properly requested leave to take Ms. Caston’s deposition, and the commission erred in admitting Ms. Caston’s report without allowing Tinajero an opportunity to depose her but the court could not conclude that the Commission had abused its discretion in denying the taking of a deposition of Mr. May for the purpose of asking the Commission to reconsider a prior ruling.
 
The issue of whether the commission erred in refusing to order defendants to provide Tinajero with the use of an adaptive van was also considered by the court. The court noted that an employer may be required to provide adaptive transportation if the plaintiff’s existing access is not satisfactory, and the modes to make it satisfactory are not practicable, but that the commission properly found that Tinajero’s access to transportation was satisfactory, and as such, the commission should not mandate that defendants purchase a vehicle for Plaintiff.

The last issue addressed by the court was whether the commission erred by failing to tax defendants with attorneys’ fees for unreasonably pursuing their defense and by failing to tax all costs, including the cost of the initial life care plan, against defendants.  Ultimately, the court concluded that the commission erroneously concluded in its initial interlocutory order that Tinajero was not entitled to attorneys’ fees. This decision should have been made in the commission’s final disposition of the case. The court remanded the commission’s determination, and ordered the commission to revisit the issue after the taking of Ms. Caston’s deposition. The court also indicated that the issue of whether defendants should pay all costs, including the cost of the initial life care plan, should also be determined following the deposition.
 
DISSENT:
 
Judge Dillon concurred in part and dissented in part. He agreed that defendants were obligated to provide adaptive housing for Tinajero, but concluded that the Commission erred by classifying Tinajero’s entire lease payment as “other treatment” under N.C.G.S. § 97-25. Instead, he remarked that some portion of the payments is an ordinary expense of life and some portion is an expense designed to “effect a cure and give relief.” Judge Dillon also argued that defendants’ prior willingness to pay the entire cost for Tinajero’s housing was not dispositive of whether defendants were legally obligated to pay the entire rental expense of Tinajero’s apartment.

Teague Campbell Dennis & Gorham is an employment law firm with offices in Raleigh and Asheville, North Carolina. This column was reprinted with the firm's permission from its June 2014 Risk Alert newsletter.