658619o3.doc

I.C. NO. 658619, JAMES CHARLES RACKLEY, JR., Employee, Plaintiff v. COASTAL PAINTING, Employer, COMPANION PROPERTY & CASUALTY INSURANCE COMPANY, Carrier, Defendants.  OPINION AND AWARD by THERESA B. STEPHENSON, Deputy Commissioner, N.C. Industrial Commission.  Filed 14 July 2005.



	This matter was heard before the undersigned Plaintiff's Motion to Compel Defendants and Sanctions by telephone hearing conferences on March 24 and March 29, 2005.  This matter is ready for decision.
A P P E A R A N C E S
	Plaintiff:	Taft, Taft & Haigler, P.A., Attorneys, Greenville, North Carolina; Thomas F. Taft, Sr. appearing.

	Defendants:	Morris, York, Williams, Surrels & Barringer, LLP, Attorneys, Charlotte, North Carolina; Stephen Kushner, appearing.

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Based upon all of the matters of record in this claim, the undersigned makes the following
FINDINGS OF FACT
	1.	Counsel for the Plaintiff reported to the undersigned Deputy Commissioner certain information concerning progress or the lack of progress by Defendants in responding to the Opinion and Award issued orally on January 25, 2005 and filed in a written Opinion and Award dated February 7, 2005.  This information was contained and reported in letters faxed and mailed to this Deputy Commissioner with copies provided to Counsel for Defendants and were dated March 21, 2005, March 23, 2005 and two letters March 24, 2005.
	2.	Plaintiff's attorney reported that as of March 17, 2005 Plaintiff had not had any communication from the Defendant Insurance Carrier relative to any matters and including the matters addressed and ordered in the February 7, 2005 Opinion and Award and further reported that Plaintiff's attorney had no communication from the Defendants or their attorney in the 55 days since the hearing of January 25, 2005.  Counsel for the Defendants did not deny these statements in a telephone hearing held later on March 24, 2005.
	3.	Plaintiff's attorney further reported that he called Defendants' attorney on March 21, 2005 and enquired and was told by Mr. Kushner that Mr. Kushner believed the outstanding medical bills and medical liens had been paid but he had no information on efforts to have a Nurse Case Manager assigned to the case or any efforts to take over the medical care of the Plaintiff.  He reported to Plaintiff's attorney that he would make enquiries that week and give a written report hopefully not later than Friday of that week.  Counsel for the Defendant did not deny these facts in a telephone hearing held later on March 24, 2005.
	4.	Plaintiff's attorney spoke with the Plaintiff by telephone on March 23, 2005 and was told by Plaintiff that he still had no communication from any representative of the Defendant Carrier and that he had been available at the same telephone number and same address as he had for many months.  Counsel for the plaintiff further reported that Plaintiff had been under a doctor's order for additional physical therapy for approximately one month and was unable to receive the physical therapy due to the fact that the Defendant Insurance Carrier was not responding to multiple requests from Plaintiff's home health nurse and that Plaintiff was attempting his own home exercise program but it was causing him considerable pain and he was fearful he might not be using the correct exercises.
	5.	Plaintiff further reported through his attorney that he had a serious and continuing need for a handicap adapted vehicle for mobility.
	6.	Counsel for the Plaintiff referred in his March 23, 2005 letter to Paragraph 3 of the February 7, 2005 Opinion and Award requiring the appointment of a qualified Nurse Case Manager, the provision of a written assessment of the Plaintiff's current medical condition, medical needs and make recommendations for Plaintiff's medical care and provide the undersigned a written report within thirty days of the Opinion and Award and a preliminary written report within two weeks of the said Opinion and Award and requested and petitioned for an additional hearing relative to the continued failures to obey Orders and to order further sanctions.
	7.	Counsel for the Plaintiff in his March 23, 2005 letter formally petitioned for an Order to employ a Certified Life Care Planner to prepare a Life Care Plan for the Plaintiff and Order the Defendant Insurance Carrier to pay the reasonable cost when submitted.
	8.	Plaintiff's Counsel also reported in his March 23, 2005 letter that the attorneys fee that had been ordered as a sanction against Defendant Insurance Carrier in the February 7, 2005 Opinion and Award had still not be paid and requested an additional Order for its payment.
	9.	Counsel for the Plaintiff further formally petitioned that the Defendant Insurance Carrier be held in willful contempt of the lawful orders of the North Carolina Industrial Commission and asked that the $1,000 per day penalty addressed in the February 7, 2005 Opinion and Award which was held in abeyance pending compliance with said Order be assessed against Defendant Insurance Carrier.
	10.	Counsel for the plaintiff reported in an additional letter or addendum to his March 23, 2005 letter/motion information on two additional outstanding medical bills that were unpaid related to equipment Plaintiff uses for cure and relief and provided the phone number and bill numbers for these providers who were demanding payment.
	11.	Additionally in the addendum letter dated March 24, 2005 Plaintiff's attorney reported the name of the high-tech wheelchair service and stated the Plaintiff's wheelchair required batteries, tires, laterals and a right arm pad which no one was willing to provide without assurance of payment.
	12.	Plaintiff's attorney further reported in this letter the name of the maintenance provider for Plaintiff's chair lift that required annual maintenance but had not been serviced for the past 4 years because no one was available to pay for it and reported the costs of approximately $750 required for straps, motor maintenance, batteries, etc. and the suppliers phone number.
	13.	Counsel for the Plaintiff likewise reported in a letter to the undersigned, again with a copy to Counsel for the Defendant dated March 24, 2005, that Plaintiff's attorney had spoken with Linda Barfield, a care coordinator for Interim HealthCare in Florida, the provider that was handling Plaintiff's medical care through the State of Florida in the absence of care being provided by Defendant Insurance Carrier since the Decision of the Court of Appeals on August 22, 2002.  She informed Plaintiff's attorney that she had independently contacted Plaintiff's workers' compensation Insurance Carrier to try to coordinate and transfer assumption of his care and had called Mike Hainley, the name she was given by the Insurance Carrier as the Case Manager and had left several messages for him; that he had actually called her on or about March 3, 2005.  She further reported that she discussed Plaintiff's need for physical therapy and that Mr. Hainley had indicated that he had a problem with the way the prescription was written and that it needed to be signed by a physician and not a physician's assistant and that she quickly faxed him a new prescription signed by a physician on or about March 3, 2005 and had no response since that date.  These matters were not denied by Mr. Mike Hainley, who participated in the telephone hearing on behalf of Defendant Insurance Carrier held later that day.
	14.	That as a result of those letters, a telephone hearing was scheduled and held on March 24, 2005 with Counsel for the Plaintiff and Defendants in attendance by telephone as well as Mike Hainley, a case manager for Defendant Insurance Carrier.
	15.	When presented with information contained in Findings of Fact numbers 1 through 14 above and asked for an explanation for the inaction and failure to follow the Orders contained in the Opinion and Award dated February 7, 2005, Mr. Hainley stated words to the effect that one of the reasons they had not paid the various providers and liens was that they had no knowledge of who they were and were waiting for Plaintiff to provide that information; to which, Counsel for the plaintiff reported that information had been provided to the Defendants Insurance Carrier and their attorney on no less than 3 occasions beginning in September 2003.  Mr. Hainley had no further response.  That in response to the same inquiry, Counsel for the Defendant stated that the reason for the failures was " a coding error" but offered no further explanation.
	16.	That as a result of the matters presented in the March 24, 2005 telephone hearing the undersigned Deputy Commissioner Ordered that the Defendant Insurance Carrier meet a 2:00 p.m., Monday, March 28, 2005 deadline for complying with it's Orders of February 7, 2005 and further stated that failure to honor and meet the deadline of March 28, 2005 would result in Orders for Arrest being issued by the Deputy Commissioner for the persons responsible for the continuing failures to honor the various Orders of the Industrial Commission and the North Carolina Court of Appeals.
	17.	Counsel for the Defendant reported to the undersigned Deputy Commissioner and Plaintiff's attorney by facsimile dated March 28, 2005, that Defendant Insurance Carrier, through it's Case Manager Mike Hainley, had spoken and provided authorization for the three providers described in Paragraph 10 above that indicated they did not treat based on no one accepting responsibility to pay, had faxed medical requests to three physicians for their office notes and itemized bills, had arranged a nurse with CorVel Corporation to meet with Plaintiff on Saturday, March 27, 2005 and have a written preliminary report available not later than February 28, 2005; had overnighted by Federal Express a check for the attorneys' fees ordered on February 7, 2005 made payable to Plaintiff's law firm, that a three page "in-home assessment" for Plaintiff prepared by Cathy Walker, a medical field case manager for CorVel Corporation was provided by facsimile to the undersigned Deputy Commissioner and Plaintiff's counsel at approximately 2:17 p.m., March 28, 2005.
	18.	That an additional telephone hearing was scheduled and held on March 29, 2005 with the same parties in attendance as in the March 24, 2005 hearing.
	19.	Plaintiff's attorney submitted a sworn affidavit dated March 28, 2005, properly served on Counsel for the Defendants, reporting many of these matters to the undersigned and said affidavit was read and considered by the undersigned.
	20.	Counsel for the Defendant reported in the hearing that all outstanding medical bills and medical liens had been paid by the Defendant Insurance Carrier, that the interim health care needs addressed by Plaintiff's attorney in his letters of March 23 and March 24, 2005 had been taken care of or were in the process of being taken care of, that the attorneys fee check for sanctions payable to Plaintiff's Counsel had been overnighted to Plaintiff's Counsel, that a Nurse Case Manager had been appointed, had met with Plaintiff and had prepared and submitted an in-home assessment of Plaintiff's condition and health care needs, that appropriate authorizations for care had been provided to various carriers on behalf of Defendant Carrier and the Defendant Carrier had assumed all of it's responsibilities to the Plaintiff as required by Orders of the North Carolina Industrial Commission and the North Carolina Court of Appeals decision.
	21.	Discussion occurred concerning the need for a Life Care Plan and the undersigned opined that it would need to be prepared "so as to address and spell out all of the medical needs of the Plaintiff with respect to the future" and that such a Life Care Plan "would become a working plan" and Ordered that Defendant Carrier propose a life care planner to Plaintiff's attorney and he is permitted to discuss the provision of such a plan with the proposed provider and if he is not satisfied with the credentials or description of the Life Care Plan to be provided, then he could bring the matter back before the undersigned for resolution.
	22.	Defendants have again failed to adequately follow the opinion of the Court of Appeals dated August 22, 2002 affirming the Order of the Full Commission dated June 13, 2001 and the Opinion and Award dated February 7, 2005 as of March 28, 2005 and that not timely complying with said Orders was without reason or excuse and was thereby either intentional and willful or was done with a wanton disregard for the rights, health, safety and well being of the plaintiff and reflected a disregard for the Decision of the North Carolina Court of Appeals and Opinion and Awards of the Full Industrial Commission and the undersigned Deputy Commissioner.
	23.	Even though Counsel for Plaintiff formally petitioned that the Defendant Insurance Carrier be held in willful contempt this notice did not formally meet the requirements of five (5) days formal notice and the undersigned therefore is unable to find that Defendant Insurance Carrier is in lawful contempt.
	24.	As a result, in addition to causing Plaintiff difficulties with his ongoing medical care, Defendants have also caused Plaintiff to incur unnecessary attorneys fees and expenses.
	25.	That the undersigned Deputy Commissioner should retain jurisdiction in this matter for all future issues that may arise relative to this claim because of the importance and complexity of the matter.
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Based upon all the foregoing Findings of Facts, the undersigned makes the following
CONCLUSIONS OF LAW
	1.	Defendants have failed to comply with the Court of Appeals decision dated August 22, 2002 which affirmed the Full Commission's Opinion and Award dated June 13, 2001 and have further failed to adequately comply with the Opinion and Award of the undersigned Deputy Commissioner dated February 7, 2005.
	2.	That these multiple failures to comply with the above-described Decisions and Orders were without excuse or justification and were either a willful and intentional disregard of the various Orders or a result of gross negligence or a wanton disregard for the rights, health, safety and well-being of Plaintiff.
	3.	That the undersigned does not find Defendant Life Insurance Company in willful contempt because proper notice was not given to Defendant Insurance Carrier at the hearing scheduled for March 24, 2005 to consider the issue of contempt but failure to so find is not a denial of Plaintiff's Motion based upon the facts of the case.
	4.	The Defendants are hereby assessed a civil penalty in the amount of $1,000 per day beginning February 22, 2005 through March 28, 2005 for thirty-five (35) days and said sum of $35,000 shall be paid as a civil penalty for the failures hereinabove described.
	5.	That an award of attorneys fees payable to Plaintiff's Counsel will be allowed upon submission of an appropriate fee request.
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Based upon the foregoing Conclusions of Law, the undersigned enters the following
O R D E R
1.	Defendant/Employer/Insurance Carrier shall take reasonable steps to verify that all outstanding medical bills, related medical expenses and other costs necessarily incurred by Plaintiff/Employee have been identified and paid.
2.	That Defendant/Employer/Insurance Carrier shall take such further reasonable steps to ensure that all liens including but not limited to Vocational Rehabilitation of Florida, Vocational Rehabilitation of North Carolina, Medicaid of North Carolina, Medicaid of Florida, and Medicare have been paid after diligent and persistent enquiry of the known lien holders has occurred by Defendant/Employer/Insurance Carrier.
3.	Defendant/Employer/Insurance Carrier shall continue to provide for a qualified Nurse Case Manager located so as to be able to regularly assess the needs and progress of the plaintiff and make regular reports to Defendants with copies to Plaintiff's attorney.
4.	Defendant/Employer/Insurance Carrier shall make available to Counsel for the Plaintiff the name, address, telephone number, qualifications and terms of engagement of a qualified Life Care Planner who will be engaged at the expense of the Defendants to prepare a complete Life Care Plan for Plaintiff and if Plaintiff's attorney objects to the selection of the Life Care Planner, he is directed to petition the undersigned for guidance in the matter.
5.	That the Nurse Case Manager shall provide Plaintiff's attorney copies of all her reports and communications and a summary of oral reports and communications she has with medical care providers, and Defendant/Employer/Insurance Carrier within fifteen (15) working days of said communication.
6.	That Defendant Insurance carrier is found to have not timely complied with the Decision of the North Carolina Court of Appeals dated August 22, 2002 affirming the Order of the Full Commission dated June 13, 2001 and the Opinion and Award dated February 27, 2005 of the undersigned and the reasons given by Defendant Insurance Carrier and Counsel for Defendants are specifically rejected and found to be without just reason or excuse and were thereby either intentional and willful or done with a wanton disregard for the rights, health, safety and well being of the Plaintiff and Defendant Insurance Carrier is therefore assessed a fine or civil penalty in the amount of $35,000 with said sum to be paid to the North Carolina Industrial commission within ten (10) working days.
7.	Plaintiff has incurred a total of $6020.00 in additional attorneys fee.  The undersigned determines that these fees are reasonable in light of the numerous hours Plaintiff's Counsel has spent on the case attempting to resolve this matter that should never have been required to be brought before the Commission.  Defendant/Employer/Insurance Carrier is Ordered to pay this amount directly to Plaintiff's Counsel within ten (10) working days.
8.	That the undersigned Deputy Commissioner retains jurisdiction in this matter for all purposes.
SO ORDERED:



			S/			
THERESA B. STEPHENSON
DEPUTY COMMISSIONER

I.C. No. 658619	Page 6