Derebery v. Pitt County Fire Marshall

Justice Billings

dissenting in part and concurring in part.

I dissent from Part III of the majority opinion.

In concluding that the defendant must provide wheelchair-accessible housing to the plaintiff, the majority says that this is an “unusual case,” apparently assuming that the decision will have limited applicability. I find nothing very unusual about a young man desiring to move out of his parents’ home to live independently. Neither is it unusual for a wheelchair-bound individual to need wheelchair-accessible housing. The fact that the owner of the plaintiffs parents’ present home will not permit alteration of the house does not establish such an “unusual” event as to justify imposing upon the defendant an obligation that he otherwise would not have. The preference of the plaintiffs parents to continue renting this particular house which is unsuitable for their son, added to his perfectly natural desire to live independently, is no basis for requiring the defendant to assume the total cost of alternative housing for the plaintiff.

The Workers’ Compensation Act provides disability compensation as a substitute for lost wages. That substitute for wages is the employer’s contribution to those things which wages ordinarily are used to purchase — food, clothing, shelter, etc. There is no provision in the Workers’ Compensation Act for the employer, in addition to providing the statutory substitute for wages, to provide the ordinary necessities of life, although in addition to week*206ly compensation based upon the employee’s wages the employer must provide compensation for “reasonable and necessary nursing services, medicines, sick travel, medical, hospital, and other treatment or care [or] rehabilitative services.” N.C.G.S. § 97-29 (1985). To construe “other treatment or care” to include basic housing is not a “liberal construction,” 318 N.C. 192, 199, 347 S.E. 2d 814, 819, of the statute; it is clearly a misconstruction. If housing is the kind of “treatment or care” intended by the statute, are not food, clothing and all of the other requirements for day-to-day living equally necessary for the employee’s “treatment or care”? In the context of the Workers’ Compensation Act, the “treatment or care [or] rehabilitative services” clearly relate to those necessitated by the employee’s work-related injury.

The majority’s discussion of the history of N.C.G.S. § 97-29 clearly indicates the limitation intended by the General Assembly. Although originally limited to medical and hospital care necessitated by paralysis resulting from injuries to the spinal cord (slip op. p. 11), the Act was expanded to include disability from other causes and to expand the kind of care or treatment allowed so that it would not be limited to treatment or care provided in a hospital. None of these amendments expanded the statute to include anything beyond the care, treatment or rehabilitative services related to the employee’s medical condition. If the care, treatment or rehabilitative services appropriate for the employee’s condition necessitate residence in a special facility, such as a nursing home, hospital or rehabilitation center, the employer must pay for the entire cost, including residence at the facility, because residence there is part and parcel of the treatment, care or rehabilitative services.

An analysis of the case of Squeo v. Comfort Control Corp., 99 N.J. 588, 494 A. 2d 313 (1985), relied upon by the majority, shows the inapplicability of that case to the present one, even if we were persuaded by its reasoning. In that case, the treating physician described the plaintiffs history and condition as follows:

[Claimant] has had a terribly hard time. The man has had just about every complication that God ever put on this earth for him .... [T]he first year was devastating . . . because he went out of one problem into another and then when we saw him, immediately we had to do something to his urinary tract *207and surgery and then ... we had problems with skin breakdowns, rashes, you name the complications, this poor fellow had it. Then he developed a curvature of the spine and [had to have] corrective surgery and . . . he’s had one medical difficulty after another.

Id. at 591, 494 A. 2d at 315.

Further evidence established that the plaintiff had lived independently of his parents for several years before his accident. After the accident, he was confined to a nursing home which was occupied primarily by elderly patients. Claimant became severely depressed as a result of the institutional living and nursing home environment and, on three occasions while in the nursing home, attempted suicide. The testimony of an expert in neuropsychiatry established that, whereas claimant had adjusted to his quadriplegia and wanted to get on with his life by attending college and becoming employed, he became and remained depressed by “the conflict between his ambitions and his perception of his future in the nursing home with older people with whom he had nothing in common.” Id. at 592, 494 A. 2d at 315. The physician testified further that claimant believed life in a nursing home was not worth living and that claimant would continue to attempt suicide as long as he remained in the nursing home. Even then, the court only required that a suitable addition be added to the claimant’s parents’ home because under the facts of the case the apartment was a reasonable and necessary medical expense (necessary for the claimant whose condition required care, not independence). The court additionally required that the employer’s interest in the house be secured by a mortgage executed by the claimant’s parents “so that if Squeo should no longer use the apartment, the employer would be compensated for any significant value the apartment may add to the property in the event it is sold, rented, or mortgaged.” Id. at 596, 494 A. 2d at 317.

The attempt by the plaintiff to rely upon that portion of N.C. G.S. § 97-29 which requires the employer to provide “rehabilitative services” likewise fails. In the first place, a common-sense interpretation of the words makes it obvious that “services”1 does *208not include housing. Additionally “rehabilitation falls under two major headings: physical and vocational,” 2 A. Larson, The Law of Workmen’s Compensation § 61.21 (1986), and the providing of housing to the plaintiff will result in neither his medical nor vocational rehabilitation.

In the case sub judice, if we assume that the evidence supports a conclusion that it would be best for the plaintiff to live independently, I submit that (1) the need for the plaintiff to live independently is nothing more than the natural desire of a young man upon reaching his early 20s to establish his own life independent of his parents and is not the effect of his injury, and (2) the only features of the plaintiffs proposed new residence which are necessitated by his injury are those which make it wheelchair-accessible. If we construe the statute to impose any obligation upon the employer to aid the plaintiff in establishing his independence from his parents, it should be only to alter housing provided by the plaintiff to make it suitable to his special needs, i.e., wheelchair-accessible — an obligation which the defendant has consistently been willing to assume.

I concur in the remainder of the Court’s opinion.

Chief Justice BRANCH and Justice MEYER join in this dissenting opinion.

. “1. The occupation or duties of a servant. 2. Employment in duties or work for another; especially, such employment for a government .... 6. Work done for *208others as an occupation or business .... 11. An act of assistance or benefit to another or others; favor . . . .” The American Heritage Dictionary, New College Edition (1980).