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Sheena Harrison

Employer must pay quadriplegic worker's rent on accessible home

May 13, 2014 - 1:07pm

Handicap-Accessible Home


A quadriplegic man's former employer must pay the rent on his handicapped-accessible home as part of his workers compensation claim because he had no home of his own that could be renovated for accessibility, the North Carolina Court of Appeals has ruled.

Court records show that Santos Tinajero, an undocumented worker from Mexico, worked for Atlanta-based Balfour Beatty Infrastructure Inc. In August 2008, a crane cable broke and knocked Mr. Tinajero off a barge he was working on.

Mr. Tinajero, then 26, was taken to a hospital and underwent surgery immediately after the accident, but he had suffered a spine fracture that left him quadriplegic, records show.

Four days after the accident, Mr. Tinajero was transferred to a rehabilitative care center in Atlanta to receive 24-hour attendant care, records show. He remained there until December 2008, when his nurse case manager found an assisted living facility that would accept a patient his age.

In February 2009, Mr. Tinajero filed an emergency motion with the North Carolina Industrial Commission saying that the assisted living facility was not a suitable living environment for him, court filings show. While Mr. Tinajero and Balfour waited for a hearing in his case, Mr. Tinajero decided on his own accord in April 2010 to move into an apartment across the street from his rehabilitative care facility.

A deputy commissioner for the state industrial commission ruled that Mr. Tinajero was entitled to lifetime workers comp benefits, but that Balfour was not obligated to buy, build, or lease adaptive housing for him, filings show. The commissioner found that Mr. Tinajero had been provided with suitable housing at the assisted living facility, and therefore Mr. Tinajero hadn't proved a need to leave the facility.

Assisted care facility ruled inappropriate

But on appeal, the full industrial commission found that Mr. Tinajero's placement at the assisted care facility was not medically appropriate because it endangered his physical and mental health, records show. The decision was based on Mr. Tinajero's concerns about potential infections from his medical care, since he contended the facility didn't follow proper medical orders for catheterization.

Therefore, the commission found “it was in (Mr. Tinajero's) medical best interest for (Balfour) to provide housing suitable for the maximum possible level of independence, which means someplace other than a skilled nursing home or long-term care facility,” records show.

The commission noted that Mr. Tinajero did not own or live in an appropriate dwelling that could be made accessible for him, and that Balfour was responsible to lease an apartment for Mr. Tinajero that would meet his physical needs, as well as pay for 24/7 attendant care.

Balfour and its workers comp insurer, Zurich American Insurance Co., appealed in October 2012, arguing that rent is an “ordinary expense of life” to be paid from Mr. Tinajero's disability benefits.

In a unanimous decision on May 6, the North Carolina Court of Appeals found that Balfour should pay for Mr. Tinajero's rent because the additional cost of renting handicapped accessible housing is not an ordinary expense, records show. The court also noted that Balfour and Zurich had been “completely willing” to pay for Mr. Tinajero's housing in the rehabilitative center or assisted living facility, but not the cost of leasing an apartment.

The court also said Mr. Tinajero proved to the industrial commission that he needed to leave the assisted living center because he was receiving improper medical care.

“In other words, (Balfour) conditioned their full payment of housing costs on Mr. Tinajero's accepting housing contrary to his medical interests,” the court opinion reads.

In a partial dissent, Judge R. Christopher Dillon said he believed Balfour should pay some of Mr. Tinajero's rent, but that some of that cost should also be paid through Mr. Tinajero's disability benefits.

Despite awarding rent payments, the appeals court denied a request from Mr. Tinajero for Balfour and Zurich to pay for an adaptive van to transport him. The court based its decision of that fact that Mr. Tinajero never had a driver's license or owned a vehicle prior to his work accident.

 



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