Attendant Care in Workers’ Compensation Cases: When Things Go South

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Attendant care is the provision of assistance to individuals who cannot care for themselves due to physical or cognitive limitations. Learn more about the essential aspects of attendant care, including attendant care provided by family members and the legal definitions of and requirements for attendant care in workers’ compensation cases.

What Are the Most Common Challenges or Obstacles When Representing Clients in Attendant Cases?  

The biggest obstacle is simply the insurance company wants to protect its money at all costs and will vigorously fight the need for attendant care and the appropriate rate of pay for such care, particularly care provided by family members or friends. 

The insurance company often will argue that attendant care is unrelated to the work injury or only partially related to the work injury, thus they should only be responsible for some of the care.

Although insurers usually have the power to direct medical care in North Carolina, if the treating physician supports the need for attendant care, the insurer may hire other "experts" to challenge the treating physician’s opinion, dispute the amount of care required, or claim that something other than the work-related injury is responsible for the need for attendant care.   

We often hire a nurse and vocational expert specializing in life care planning to help address the need for attendant care. They meet with the injured worker and their family members providing the care. We usually ask the family or dependents to complete an ADL (Activities of Daily Living) worksheet.  

The expert then develops a report and sends it to the doctors for review. Ultimately, the doctor or other healthcare provider decides whether attendant care is appropriate because of the work-related injury and the level and amount of care required.

Often, this requires a detailed letter to the doctor to address the specific need for attendant care. It may require a conference with the health care provider. 

Navigating the Complexities of Attendant Care Workers’ Compensation Eligibility 

How Much Care Is Needed?  

The need for attendant care can be temporary or permanent. Depending on the needs of the injured party it can be a few hours a week to 24 hours a day / 7 days a week. Insurance companies will often contest the amount of care required.  

What Is the Rate That Should Be Paid?  

Prevailing market rate, but what is it? When litigating the attendant care issue, one must prove the reasonable rate for the services provided. An expert, such as a life care planner or vocational expert, frequently provides this information.

The Industrial Commission ultimately decides the appropriate rate. The three rates the Commission may consider in any case are:  

• the hourly rate paid by a home health care agency to a home health care aide/CNA,  
• the rate charged by a home health care agency for a home health care aide/CNA, or  
• the rate charged by an independent contractor who provides home health care aide/CNA services. 

In some cases, the insurance carrier may argue that the injured worker should move to a nursing home (or assisted living facility) if the cost of reimbursement to home health providers, whether professional aides, family members or friends, exceeds the cost of care at a nursing home.  Generally, staying in one’s home has many benefits over a nursing home. First, it’s home.  

Also, one simply does not get the same level of attention and care at a nursing home that they can get at home. Mentally, many folks view a nursing home as the place of last resort and the last stop before one’s death.  

To combat the “nursing home” argument, the healthcare provider should opine that the person is better living at home with attendant care, and moving to a nursing home or similar facility would be detrimental to their physical and mental well-being.  

In North Carolina workers’ compensation medical treatment includes care “reasonably necessary to effect a cure, provide relief, or lessen the period of disability.” Receiving attendant care at home provides relief while being confined to a nursing home against one’s wishes does not. 

Who Should Be Paid?  

When the provider is a nursing home, assisted living facility, or home health care agency or provider, the insurance company pays the provider directly. 

However, if the attendant care is provided by a family member or friend, North Carolina awards payments for past attendant care to either the family member or friend who provided it or directly to the injured worker. The decision is based on the specific circumstances of each case. 

Likewise, when it comes to ongoing attendant care, the decision is based on the specific circumstances of each case.  

Why Do Insurance Companies Fight Attendant Care Claims?  

One simply reason, MONEY. Attendant care is expensive. The reason an insurer tries to reduce the number of attendant care hours and the rate of pay is to save money.  

For instance, if an injured worker requires 24/7 care, and the standard hourly rate is $20.00, the yearly cost would be over $175,000. However, if the insurance company can reduce the care to 16 hours per day and the hourly rate to $15.00, they would only have to pay about $87,500 annually thus reducing their annual costs by over 50%. 

Doug Maynard Fights for You 

Doug Maynard, a seasoned attorney based in North Carolina with extensive experience in handling workers’ compensation cases, excels in securing payment for attendant care services rendered by the loved ones of injured employees.  

Despite benefits being covered under North Carolina workers’ compensation law, insurance companies do not tell injured workers about these benefits particularly when family members and friends provide the attendant care. When brought to their attention, usually by an attorney experienced in workers’ compensation cases, insurers often vigorously resist paying attendant care due to their high costs.  

Nonetheless, Doug has a track record of effectively advocating for clients in such situations, ensuring they receive the rightful compensation they are entitled to. An illustrative case involves a client afflicted with complex regional pain syndrome necessitating extensive aid in daily activities provided by his wife.  

When the medical provider opined that he needed attendant care 24 hours a day / 7 days a week the carrier resisted and a request for hearing filed. Ultimately, the parties settled the case for over seven figures. Contact Doug today to learn more about your right to attendant care resources.  

If you or a loved one needs help with an attendant care claim, don't hesitate to reach out. Contact Doug Maynard today for dedicated assistance and ensure you receive the benefits you're entitled to.

Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Reading this article or interacting with its content does not establish an attorney-client relationship with Maynard Law. To create such a relationship, a formal agreement is required. Past results mentioned in this blog post do not guarantee future outcomes. Each case is unique and must be evaluated on its own merits. For legal advice tailored to your specific situation, please contact a qualified attorney.