An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA12-1238

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

JOSEPH E. BURROUGHS, Employee,

Plaintiff,

v. North Carolina Industrial 

Commission

I.C. No. 584372

LASER RECHARGE OF CAROLINAS, INC., 

Employer, and NORGUARD INSURANCE 

COMPANY, Carrier,

Defendants.

Appeal by defendants from opinion and award entered 27 June 

2012 by the Full Commission of the North Carolina Industrial 

Commission. Heard in the Court of Appeals 8 April 2014.

Lennon, Camak & Bertics, PLLC, by Michael W. Bertics and S. 

Neal Camak, for plaintiff-appellee. 

Teague Campbell Dennis & Gorham, L.L.P., by John A. Tomei, 

for defendants-appellants. 

HUNTER, Robert C., Judge.

Laser Recharge of Carolinas, Inc., (“Laser Recharge”) 

together with its insurance carrier Norguard Insurance Company 

(collectively “defendants”), appeal from an opinion and award 

entered by the Full Commission of the North Carolina Industrial
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Commission ordering defendants to pay compensation for 2,726 

hours of attendant care services performed by plaintiff Joseph 

E. Burroughs’s family members. On appeal, defendants argue 

that: (1) this case must be remanded so that the Full Commission 

may enter findings as to the timeliness of plaintiff’s request 

for attendant care compensation; (2) certain aspects of 

plaintiff’s need for attendant care are not compensable as a 

matter of law; and (3) the Full Commission erred by awarding 

reimbursement to plaintiff directly rather than to the specific 

family members who performed the attendant care services. 

After careful review, we reverse and remand to the Full 

Commission. 

Background

Defendants do not contest any of the Full Commission’s 

findings of fact. Thus, the Full Commission’s findings are 

presumed to be supported by competent evidence and are binding 

on appeal. See Chaisson v. Simpson, 195 N.C. App. 463, 470, 673 

S.E.2d 149, 156 (2009). The relevant findings of fact entered 

by the Full Commission are as follows: Plaintiff began working 

for Laser Recharge in 1997 as a delivery driver. On 30 November 

2005, plaintiff suffered a compensable work-related injury to 

his neck which required a multi-level cervical fusion surgery. 
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Plaintiff was found to be permanently and totally disabled as a 

result of this injury. 

Due to pain in his neck following the initial surgery in 

November 2005, plaintiff had trouble performing many of the 

household chores he was accustomed to doing, such as moving 

trash to the curb and driving himself to medical appointments. 

Defendants provided a transportation service to drive plaintiff 

to medical appointments, but the drivers were unreliable, and 

defendants discontinued this service at plaintiff’s wife’s 

request. Based on the opinion of Dr. Steven Prakken (“Dr. 

Prakken”), plaintiff’s pain management physician, the Full 

Commission found as fact that plaintiff required two hours of 

attendant care per day from 30 November 2005 to 31 May 2006 and 

that this attendant care was provided by plaintiff’s wife and 

other family members. 

Beginning in the summer of 2006, plaintiff’s health began 

to deteriorate. He no longer felt he could perform routine 

household tasks, like yard work. He experienced increased pain 

emanating from his neck into his arms. In September 2007, 

plaintiff’s neurosurgeon, Dr. Russell Margraf (“Dr. Margraf”), 

recommended additional neck surgery if plaintiff’s condition did 

not improve. Over the next year, plaintiff continued to 
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experience pain in his neck, tingling in both hands, and 

weakness in his right hand. Dr. Prakken opined that during this 

period, plaintiff required between two and four hours of 

attendant care per day. Based on this opinion, the Full 

Commission found that from 1 June 2006 to 30 September 2008, 

plaintiff required two hours of attendant care per day, and this 

care was provided by plaintiff’s wife and other family members. 

Specifically, the Full Commission found that “[plaintiff’s 

family members] performed tasks plaintiff used to perform 

himself such as yard work, cleaning the gutters, washing the 

house and cars, vacuuming and taking out the trash. Plaintiff 

was also unable to help his wife with the laundry and cooking, 

tasks for which they had previously shared responsibility.” 

Plaintiff underwent an additional multi-level cervical 

fusion surgery on 7 May 2009. From October 2008 through the 

date of this procedure, plaintiff was forced to use a cane to 

walk due to difficulty with his gait; he also suffered from 

urinary urgency. Based on Dr. Prakken’s opinion, the Full 

Commission found that from 1 October 2008 through 6 May 2009, 

plaintiff required three hours of attendant care per day, which 

was provided by plaintiff’s wife and other family members. 
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Plaintiff remained in the hospital until 13 June 2009 after 

undergoing the additional surgery on 7 May. 

Following release from the hospital, plaintiff was no 

longer able to perform any activities around the house, 

including bathing, feeding, dressing, or toileting on his own. 

For the time period beginning with plaintiff’s release from the 

hospital and going through 31 October 2009, Dr. Margraf 

prescribed two hours of attendant care per day, five days per 

week, which defendants provided. In early 2010, plaintiff 

underwent additional surgery to remove a vocal cord growth 

related to the May 2009 surgery. On 30 April 2010, Dr. Prakken 

prescribed two weeks of attendant care, which defendants 

provided. The Full Commission found that during the times when 

attendant caretakers provided by defendants were not at 

plaintiff’s home, plaintiff’s wife would constantly monitor him

to manage his medications and ensure that he did not fall. 

Based on Dr. Prakken’s opinion, the Full Commission found that 

from 13 June 2009 until the date of the hearing before the 

Commission on 1 May 2012 and continuing, plaintiff required four 

hours of direct attendant care and eight hours of passive 

attendant care per day, which has been and continues to be 

provided by plaintiff’s wife and other family members. 
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Thus, the Full Commission found that plaintiff’s wife and 

family members are entitled to reimbursement for the attendant 

care that they have provided since November 2005. In total, 

these amounted to 2,726 hours of compensable attendant care from 

30 November 2005 through 6 May 2009. Additionally, the Full 

Commission ordered that beginning 13 June 2009 and continuing 

until further order of the Commission, defendants are to pay for 

twelve hours of attendant care per day, seven days a week. The 

Full Commission concluded that although plaintiff’s family 

members are entitled to reimbursement for these hours, the 

record did not contain sufficient evidence of the market hourly 

rate for an unskilled attendant care provider. Thus, it noted 

that the parties must stipulate to the appropriate hourly rate 

or request Commission approval to take depositions or submit 

other evidence to resolve the rate amount. Defendants filed 

timely notice of appeal from the Full Commission’s opinion and 

award. 

By order of this Court entered 30 October 2012, defendants’

appeal was held in abeyance pending resolution of two North 

Carolina Supreme Court cases – Chandler ex re. Harris v. 

Atlantic Scrap & Processing, __ N.C. __, 749 S.E.2d 278 (2013),

and Mehaffey v. Burger King, __ N.C. __, 749 S.E.2d 252 (2013). 
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Both cases were filed by the Supreme Court in November 2013, and 

the parties to this suit filed briefs within thirty days 

thereafter. 

Discussion

I. Timeliness of Plaintiff’s Request

Defendants first argue that, pursuant to the holding in 

Mehaffey, the Full Commission’s opinion and award must be 

remanded for entry of factual findings and legal conclusions 

related to the timeliness of plaintiff’s request for 

reimbursement. We agree. 

Plaintiff argues that defendants failed to preserve this 

issue on appeal because they did not properly present this 

contention in the first instance before the Full Commission. 

See Floyd v. Executive Personnel Grp., 194 N.C. App. 322, 329, 

669 S.E.2d 822, 828 (2008) (holding that a party may not raise 

an argument for the first time on appeal that was not brought 

first before the Industrial Commission). However, we believe 

that defendants presented this issue before the Commission and 

therefore preserved it for appellate review. On page six of 

defendants’ brief to the Full Commission, they argued that:

To permit an employee to wait years after a 

family member begins providing post-accident 

care before bringing the issue of 

reimbursement to the attention of the 
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employer, carrier, and Commission would 

frustrate the second of the two goals 

reflected in § 97-25.4(a): the containment 

of medical costs. 

Although defendants did not explicitly request that the Full 

Commission enter findings and conclusions as to the 

reasonableness of the length of time it took plaintiff to 

request reimbursement for these attendant care services, they 

did argue that the length of time was an additional reason to 

deny plaintiff’s request. Thus, we conclude defendants raised 

and argued this point before the Full Commission and the issue 

is properly preserved for appellate review. See Floyd, 194 N.C. 

App. at 329, 669 S.E.2d at 828.

Turning to the merits of defendants’ argument, we agree 

that under Mehaffey, this matter must be remanded. The Mehaffey 

Court noted that “to receive compensation for medical services, 

an injured worker is required to obtain approval from the 

Commission within a reasonable time after he selects a medical 

provider.” Mehaffey, __ N.C. at __, 749 S.E.2d at 257. 

Therefore, “[i]f [a] plaintiff did not seek approval within a 

reasonable time, he is not entitled to reimbursement.” Id. 

Because the defendants in Mehaffey challenged the reasonableness 

of the timing of the plaintiff’s request and the Full Commission 

did not resolve that issue in its findings of fact or 
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conclusions of law, the Supreme Court remanded for entry of such 

findings and conclusions. Id. 

Here, like in Mehaffey, defendants challenged the 

reasonableness of the timing of plaintiff’s request for 

reimbursement for attendant care services, and the Full 

Commission failed to enter findings of fact or conclusions of 

law resolving that issue. Accordingly, pursuant to the Mehaffey

holding, we remand for entry of further findings of fact and 

conclusions of law as to the timeliness of plaintiff’s request

for reimbursement.

1

II. Compensability of Attendant Care Services

Defendants next argue that some of the services for which 

plaintiff was reimbursed are not compensable as a matter of law. 

Because the Full Commission entered findings of fact that would 

 

1 Plaintiff also argues that defendants are barred from 

challenging the timeliness of plaintiff’s request because 

defendants waived their right to direct medical care by denying 

plaintiff’s need for care in the past. We disagree for two 

reasons: (1) nothing in Mehaffey indicates that defendants’

previous denial of care affects the Full Commission’s duty to 

enter findings of fact and conclusions of law as to the 

timeliness of a request where defendants have properly raised 

that issue before the Commission; and (2) defendants did not 

completely deny plaintiff’s attendant care. To the contrary, 

defendants provided all attendant care that was prescribed in 

2009 and 2010. In their brief, defendants concede that there is 

competent evidence to support an award of “some ongoing 

attendant care services for [p]laintiff.” Thus, plaintiff’s 

argument regarding waiver is without merit.
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support an erroneous conclusion of law, but did not specify 

whether those facts were taken into account in its award, we 

remand for clarification on this issue. 

N.C. Gen. Stat. § 97-25 (2013) states that “[m]edical 

compensation shall be provided by the employer.” Medical 

compensation is defined in relevant part as:

medical, surgical, hospital, nursing, and 

rehabilitative services, including, but not 

limited to, attendant care services 

prescribed by a health care provider 

authorized by the employer or subsequently 

by the Commission, vocational 

rehabilitation, 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[.]

N.C. Gen. Stat. § 97-2(19) (2013). This Court has previously 

held that “ordinary expense[s] of life” are not included in the 

definition of “medical compensation” and therefore are not 

required to be provided or reimbursed by the employer. See 

Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488, 

494, 665 S.E.2d 781, 786 (2008). 

The holding in Scarboro is instructive here. In that case, 

the Full Commission found as fact that because of a work-related 

back injury, the plaintiff was unable to perform yard work that 
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was required by his homeowners’ association. Scarboro, 192 N.C. 

App. at 494, 665 S.E.2d at 786. The plaintiff sought to have 

his employer reimburse him for the costs of hiring an outside 

company to perform the yard work on the theory that such 

services were an “extraordinary and unusual expense included in 

the ‘other treatment’ language of N.C. Gen. Stat. § 97-25.” Id. 

at 492, 665 S.E.2d at 784. However, the Court held that 

“providing plaintiff with the resources to comply with this 

restrictive covenant [to perform certain yard work] does not 

rise to the level of ‘other treatment.’ [The Full Commission’s] 

factual findings support the conclusion that the lawn care 

services are an ordinary expense of life, which is not included 

in medical compensation, pursuant to N.C. Gen. Stat. § 97-2(19) 

and N.C. Gen. Stat. § 97-25.” Id. 

Here, the Full Commission found as fact that:

8. During the summer of 2006, plaintiff was 

still unable to perform some of the 

activities of daily living that he had been 

able to perform prior to his injury. 

Plaintiff could no longer care for his yard, 

and his wife had to take the trash out 

because he was unable to do so. 

. . .

11. Plaintiff’s condition continued to 

decline over the next year. During his 

first appointment with Dr. Prakken on 

September 29, 2008, plaintiff reported pain 
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in his neck and back, tingling in both 

hands, and weakness in his right hand which 

limited his ability to work around his 

house. As a result of this, family members 

including plaintiff’s daughter, brother-inlaw and son-in-law performed tasks plaintiff 

used to perform himself such as yard work, 

cleaning the gutters, washing the house and 

cars, vacuuming and taking out the trash. 

Plaintiff was also unable to help his wife 

with the laundry and cooking, tasks for 

which they had previously shared 

responsibility. 

It is clear that some of the activities identified by the Full 

Commission as being performed by plaintiff’s family members on 

his behalf, specifically yard work and other household chores, 

fall under the definition of “ordinary expenses of life” and are 

therefore not compensable. See Scarboro, 192 N.C. App at 492, 

665 S.E.2d at 784. However, it is unclear to what extent the 

Full Commission relied on these factual findings in its opinion 

and award. Although the Full Commission’s conclusion that 

plaintiff is entitled to reimbursement for attendant care is 

supported by competent evidence, we have no way of knowing how 

many of these hours were comprised of non-compensable “ordinary 

expenses of life” activities. 

Accordingly, pursuant to Scarboro, we remand to the Full 

Commission for clarification in its findings of fact and 

conclusions of law as to this distinction, and we instruct the 
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Full Commission to award reimbursement only for those 

“extraordinary and unusual expenses” that are compensable under 

section 97-25. 

III. Payment Recipients

Defendants’ final argument on appeal is that the Full 

Commission erred by awarding reimbursement directly to plaintiff 

rather than to the family members who actually performed the 

attendant care services. However, defendants cite no authority 

for the proposition that this failure to specify recipients and 

connect their award to the attendant care provided amounts to 

reversible error. Thus, this argument is deemed abandoned. See 

Hackos v. Goodman, Allen & Filetti, PLLC, __ N.C. App. __, __, 

745 S.E.2d 336, 341 (2013). 

Furthermore, we disagree with defendants’ contention that 

plaintiff’s wife should not be awarded compensation solely 

because she herself is also disabled. Defendants assert that 

plaintiff’s wife “has not had to alter her routine at all in 

order to provide [p]laintiff with this ‘passive care.’ Due to 

her own disability, she has not worked since before [p]laintiff 

was injured and would be at home with him regardless of his need 

for someone to be within shouting distance.” We expressly 

reject this line of argument. Neither defendants nor this Court 
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have any basis to assume how plaintiff’s wife would have spent 

her time had plaintiff not been seriously injured. Defendants’

argument is overruled. 

Conclusion

For the reasons stated above, we reverse the opinion and 

award and remand to the Full Commission for entry of findings of 

fact and conclusions of law: (1) addressing the reasonableness 

of the amount of time it took plaintiff to request reimbursement 

for the attendant care services plaintiff’s family provided; and 

(2) resolving what portion of the attendant care to which 

plaintiff is entitled was comprised of valid medical 

compensation under the meaning of section 97-25. 

REVERSED AND REMANDED.

Judges BRYANT and STEELMAN concur.

Report per Rule 30(e).