Hall v. U.S. Xpress, Inc.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-333
Filed: 5 December 2017
North Carolina Industrial Commission, No. 13-717855
HARRISON HALL, Employee-Plaintiff,
v.
U.S. XPRESS, INC., Employer,
and
LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants.
Appeal by plaintiff and defendants from Opinion and Award entered 7
December 2016 by the North Carolina Industrial Commission. Heard in the Court of
Appeals 20 September 2017.
R. James Lore, Attorney at Law, and Law Office of James S. Aven, by James S.
Aven, for plaintiff-appellee, cross-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Matthew J. Ledwith and M.
Duane Jones, for defendant-appellants, cross-appellees.
ZACHARY, Judge.
U.S. Xpress, Inc. (defendant, with Liberty Mutual Insurance Company,
collectively, defendants) appeals from an opinion and award of the North Carolina
Industrial Commission that awarded Harrison Hall (plaintiff) workers’ compensation
benefits. Defendants argue that the Commission lacked subject matter jurisdiction
HALL V. U.S. XPRESS, INC.
Opinion of the Court
over plaintiff’s claim for workers’ compensation benefits, and that the Commission
erred by awarding plaintiff benefits for attendant care that was provided prior to the
date upon which plaintiff filed an Industrial Commission Form 18, and by sanctioning
defendants. Plaintiff has filed a cross-appeal in which he argues that the Commission
erred by limiting the award of attendant care to eight hours per day, by failing to
continue a per diem allowance defendants had previously paid to plaintiff and his
wife, and by requiring plaintiff to contribute $400 per month toward the rental of a
handicapped-accessible apartment. We conclude that the Commission’s opinion and
award should be affirmed.
Factual and Procedural Background
The pertinent facts are largely undisputed. Plaintiff was born in 1959 and was
56 years old at the time of the hearing on this matter. In 1999, plaintiff began
working as a long distance truck driver for defendant, a trucking company based in
Tennessee. Plaintiff was living in Fayetteville, North Carolina, at that time. On 5
July 2002, while plaintiff was delivering merchandise in North Carolina, he was
pinned between his delivery truck and another vehicle. Defendants have not disputed
that this was an injury by accident arising from his employment with defendant, or
that “plaintiff sustained injury to his back and right leg during the performance of
his job duties for defendant-employer. . . .” Following the accident that injured
plaintiff, defendants reported the accident to the legal entity that administers the
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Tennessee Workers’ Compensation Act. Since 6 July 2002, defendants have
voluntarily paid workers’ compensation wage loss benefits of $463.30 per week to
plaintiff, pursuant to the Tennessee Workers’ Compensation Act.
In addition to weekly indemnity payments, defendants have paid workers’
compensation medical benefits of approximately $8,406,832.00 for treatment of the
injuries plaintiff suffered in the accident, pursuant to the Tennessee Workers’
Compensation Act and fee schedule. Plaintiff was initially treated by medical
providers in North Carolina; he later moved to West Virginia, in order to receive
assistance from his girlfriend, who is now his wife. In 2004, defendants transferred
plaintiff’s medical care from West Virginia to Boston, Massachusetts, where plaintiff
and his wife were residing at the time of the hearing on his claim. Unfortunately,
despite receiving medical care, plaintiff has continued to suffer serious health
problems. As a result of the accident in 2002, plaintiff has had approximately 390
surgical procedures, including amputation of his right leg. Because plaintiff’s leg was
amputated up to his buttock, he is not a candidate for a prosthetic leg. He has also
suffered from kidney failure, which makes him dependent upon dialysis, as well as
other medical problems, including diabetes, elevated cholesterol levels, dental
problems, and depression.
Between the date of plaintiff’s accident and 2013, defendants provided workers’
compensation medical and indemnity benefits to plaintiff pursuant to the Tennessee
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Opinion of the Court
Workers’ Compensation Act. As part of the agreement between plaintiff and
defendants for the transfer of plaintiff’s medical care to Boston, defendants agreed to
pay plaintiff and his wife each a $25.00 per diem allowance for meals. In 2011,
defendants discontinued payment of the per diem allowance, and plaintiff learned
that his workers’ compensation benefits had been paid under Tennessee’s, rather
than North Carolina’s, workers’ compensation law. On 8 April 2013, plaintiff filed
Industrial Commission Form 18 with the North Carolina Industrial Commission,
seeking workers’ compensation medical and indemnity benefits. Defendants then
filed Industrial Commission Form 19 reporting plaintiff’s accident to the North
Carolina Industrial Commission on 23 April 2013. On 2 May 2013, defendants filed
Industrial Commission Form 61, asserting that the Industrial Commission lacked
jurisdiction over plaintiff’s claim. In response, plaintiff filed Industrial Commission
Form 33 requesting that his claim be heard by the Commission.
The parties agreed to a bifurcated proceeding, in which a hearing on the issue
of subject matter jurisdiction was conducted prior to a hearing on plaintiff’s
entitlement to workers’ compensation benefits. Following a videoconference
conducted in February of 2014, Deputy Commissioner Stephen T. Gheen entered an
opinion on 12 January 2015, concluding that the Industrial Commission had
jurisdiction over plaintiff’s claim. Deputy Commissioner Gheen entered a modified
order on 10 February 2015, making minor changes to his original order. On 25
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February 2015, defendants gave notice of their appeal from the Deputy
Commissioner’s order.
Additional proceedings by the Commission addressed the issue of plaintiff’s
claim for workers’ compensation medical and indemnity benefits. On 29 October
2015, an interlocutory opinion and award was entered by Deputy Commissioner J.
Brad Donovan in which he incorporated the order entered by Deputy Commissioner
Gheen, noting that it was “favorable to the plaintiff on the issue of jurisdiction. . . .”
This order left open the calculation of certain benefits. On 8 January 2016, Deputy
Commissioner Donovan entered an order finalizing the award and otherwise
incorporating his earlier order awarding plaintiff workers’ compensation medical and
indemnity benefits. Plaintiff appealed to the Full Commission for review of aspects of
the award of benefits, and defendants appealed to the Full Commission, challenging
the Commission’s subject matter jurisdiction as well as certain parts of Deputy
Commissioner Donovan’s award.
The case was heard by the Full Commission on 23 June 2016. On 7 December
2016, the Commission, by means of an order entered by Commissioner Bill
Daughtridge, Jr. with the concurrence of Commissioners Bernadine S. Ballance and
Tammy Nance, awarded plaintiff certain workers’ compensation medical and
indemnity benefits. The specific provisions of the Commission’s order are discussed
below, as pertinent to the issues raised by the parties on appeal. Plaintiff and
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Opinion of the Court
defendants entered timely notices of appeal to this Court from the Commission’s
opinion and award.
Standard of Review
“Generally, appellate review of the Commission’s decisions is limited to
‘whether any competent evidence supports the Commission’s findings of fact and
whether [those] findings . . . support the Commission’s conclusions of law.’ ” Burley v.
U.S. Foods, Inc., 368 N.C. 315, 317, 776 S.E.2d 832, 834 (2015) (quoting McRae v.
Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004)). In addition,
“[b]ecause the Industrial Commission is the sole judge of the credibility of the
witnesses and the weight of the evidence[, w]e have repeatedly held that the
Commission’s findings of fact are conclusive on appeal when supported by competent
evidence, even though there be evidence that would support findings to the contrary.”
Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 423, 760 S.E.2d 732, 738 (2014)
(internal quotation omitted).
“On appeal, this Court may not reweigh the evidence or assess credibility.
Findings of fact may be set aside on appeal only when there is a complete lack of
competent evidence to support them[.]” Kelly v. Duke Univ., 190 N.C. App. 733, 738-
39, 661 S.E.2d 745, 748 (2008) (internal quotation omitted). Findings that are not
challenged on appeal are “presumed to be supported by competent evidence” and are
“conclusively established on appeal.” Johnson v. Herbie’s Place, 157 N.C. App. 168,
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180, 579 S.E.2d 110, 118 (2003) (citation omitted). The “Commission’s conclusions of
law are reviewed de novo.” McRae, 358 N.C. at 496, 597 S.E.2d at 701 (citation
omitted).
The Industrial Commission’s findings regarding subject matter jurisdiction are
subject to a different standard:
“The finding of a jurisdictional fact by the Industrial
Commission is not conclusive upon appeal even though
there be evidence in the record to support such finding. The
reviewing court has the right, and the duty, to make its
own independent findings of such jurisdictional facts from
its consideration of all the evidence in the record.” . . . This
Court makes determinations concerning jurisdictional
facts based on the greater weight of the evidence.
Capps v. Southeastern Cable, 214 N.C. App. 225, 226-27, 715 S.E.2d 227, 229 (2011)
(quoting McCown v. Hines, 353 N.C. 683, 686, 549 S.E.2d 175, 177 (2001)).
Appeal by Defendants
Subject Matter Jurisdiction
Defendants argue first that the Industrial Commission lacked subject matter
jurisdiction over plaintiff’s claim for workers’ compensation benefits. Defendants
contend that plaintiff’s claim was barred by the provisions of N.C. Gen. Stat. § 97-24
(2016). This statute provides in relevant part that:
(a) The right to compensation under this Article shall be
forever barred unless (i) a claim . . . is filed with the
Commission or the employee is paid compensation as
provided under this Article within two years after the
accident or (ii) a claim . . . is filed with the Commission
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within two years after the last payment of medical
compensation when no other compensation has been paid
and when the employer’s liability has not otherwise been
established under this Article.
In this case, plaintiff did not file a claim with the North Carolina Industrial
Commission within two years of his accident, and thus jurisdiction is not proper
under N.C. Gen. Stat. § 97-24(a)(i). The jurisdictional dispute between the parties is
whether plaintiff filed a claim “within two years after the last payment of medical
compensation when no other compensation has been paid and when the employer’s
liability has not otherwise been established under this Article,” as specified in § 97-
24(a)(ii). “Under section 97-24(a)(ii), a plaintiff must show that: (1) his claim was
filed within two years after the last payment of ‘medical compensation,’ (2) no ‘other
compensation’ was paid, and (3) the employer’s liability has not otherwise been
established under the Act.” Clark v. Summit Contrs. Group, Inc., 238 N.C. App. 232,
235, 767 S.E.2d 896, 898-99 (2014).
The facts of Clark are comparable to those of the instant case. In Clark, this
Court held that “the record clearly shows that [the] defendants’ liability had not
otherwise been established under the Act because [the] defendants had not been held
liable for [the] plaintiff’s injuries pursuant to a North Carolina workers’
compensation claim[.] . . . Thus, the third element is satisfied.” Id. The same is true
in this case; when plaintiff filed Industrial Commission Form 18, defendants’ liability
had not been determined pursuant to a North Carolina workers’ compensation claim.
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The Clark opinion explained that “whether [the] plaintiff can satisfy the remaining
two elements of N.C. Gen. Stat. § 97-24(a)(ii) turns on this Court’s understanding of
the terms ‘medical compensation’ and ‘other compensation’ as they are contemplated
within the North Carolina Workers’ Compensation Act.” Clark, 238 N.C. App. at 235,
767 S.E.2d at 899.
N.C. Gen. Stat. § 97-2 (2016) sets out the legal definition of various terms
“[w]hen used in this Article, unless the context otherwise requires[.]” These
definitions include, as relevant to this appeal, the following:
(11) Compensation. -- The term “compensation” means the
money allowance payable to an employee or to his
dependents as provided for in this Article, and includes
funeral benefits provided herein.
(19) Medical Compensation. -- The term “medical
compensation” means 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[.] . . .
(20) Health care provider. -- The term “health care
provider” means physician, hospital, pharmacy,
chiropractor, nurse, dentist, podiatrist, physical therapist,
rehabilitation specialist, psychologist, and any other
person providing medical care pursuant to this Article.
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Two previous North Carolina cases have interpreted these definitions in a
factual context that is functionally indistinguishable from the present case: that of a
workers’ compensation claimant who (1) suffers a compensable injury; (2) receives
medical and indemnity compensation that is voluntarily provided by the employer,
pursuant to the workers’ compensation statutes of a state other than North Carolina;
and (3) files a claim within two years of the last medical compensation provided under
the other state’s workers’ compensation act. McGhee v. Bank of America Corp., 173
N.C. App. 422, 618 S.E.2d 833 (2005), addressed the question of whether, for purposes
of determining whether a plaintiff filed a claim within two years of the last payment
of medical compensation, payments to out-of-state medical providers should be
considered. In McGhee, the plaintiff filed a claim for workers’ compensation benefits
in North Carolina within two years of her last medical compensation payment to her
Virginia health care providers. This Court upheld the Commission’s finding that the
“plaintiff had timely filed a claim within two years after the last payment of medical
compensation pursuant to N.C. Gen. Stat. § 97-24(a)(ii) because the employer paid
medical providers in Virginia” within two years of the date that the plaintiff filed her
claim. Clark, 238 N.C. App. at 236, 767 S.E.2d at 899 (discussing McGhee, 173 N.C.
App. at 427, 618 S.E.2d at 836).
In Clark, the claimant filed a claim within two years of last receiving medical
compensation in Florida. As in McGhee, the defendant argued that, for purposes of
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Opinion of the Court
determining whether a plaintiff filed a workers’ compensation claim within two years
of the last payment of medical compensation, payments from a state other than North
Carolina should not be considered. This Court expressly rejected that argument:
While it is clear that, pursuant to [the] plaintiff’s Florida
workers’ compensation claim, [the] defendants made
payments for his medical treatment in Florida, the issue is
whether those payments constituted “medical
compensation” under the Act. . . . [The] defendants contend
that “[n]one of [the] plaintiff’s medical payments were
made ‘in the judgment of’ the North Carolina Industrial
Commission or in a matter before the North Carolina
Industrial Commission.” Thus, according to [the]
defendants, [the] plaintiff did not receive any payments of
“medical compensation” and subsection (ii) is inapplicable.
. . . There is no basis for [the] defendants’ contention that
“medical compensation” only includes payments made in a
matter pending before the North Carolina Industrial
Commission. In contrast, our caselaw establishes that an
employee’s claim is timely filed under section 97-24(a)(ii) if
it is filed within two years after the defendant’s last
payment of “medical compensation” to the plaintiff
regardless of where the medical treatment occurs and
regardless of whether that payment was ordered as a result
of a pending workers’ compensation action in North
Carolina.
Clark at 235-36, 767 S.E.2d at 899 (emphasis added) (citing McGhee, 173 N.C. App.
at 426-27, 618 S.E.2d at 836). McGhee and Clark have also rejected the instant
defendants’ argument that disability payments that are not provided pursuant to
North Carolina workers’ compensation are “other compensation” within the meaning
of N.C. Gen. Stat. § 97-24(a)(ii). As stated in Clark:
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The next issue is whether the benefits [the] plaintiff
received under Florida law constitute “other
compensation” for purposes of section 97-24(a)(ii). If they
do, [the] plaintiff would be unable to satisfy the second
element under section 97-24(a)(ii).
“ ‘Compensation’ under the Workers’ Compensation Act
means ‘the money allowance payable to an employee or to
his dependents as provided for in this Article[.]’ ”. . . In
McGhee, this Court interpreted the term “other
compensation” and determined that any benefits “paid . . .
in lieu of workers’ compensation benefits and not made
payable . . . pursuant to [North Carolina’s] Workers’
Compensation Act” did not qualify as “other
compensation,” and we are bound by that definition[.] In
McGhee, 173 N.C. App. at 427, 618 S.E.2d at 836, the
plaintiff received short-term disability benefits from the
employer. On appeal, the defendants argued that the short-
term disability benefits constituted “other compensation,”
making section 97-24(a)(ii) inapplicable. Id. However, this
Court disagreed, concluding that because the short-term
disability benefits were “paid to [the] plaintiff in lieu of
workers’ compensation benefits and not made payable to
[the] plaintiff pursuant to the Workers’ Compensation
Act[,]” they did not qualify as “other compensation” under
section 97-24(a)(ii). Based on McGhee, since the workers’
compensation benefits [the] plaintiff received in Florida
were also “not made payable to [him] pursuant to [North
Carolina’s] Workers’ Compensation Act,” id., they do not
qualify as “compensation,” as defined in section 97-2(11)
(2013), or “other compensation,” as defined in McGhee, for
purposes of N.C. Gen. Stat. § 97-24(a)(ii).
Clark at 237-238, 767 S.E.2d at 900 (emphasis in original) (quoting McGhee at 427,
618 S.E.2d at 836-37, and citing In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30,
37 (1989)).
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In sum, McGhee and Clark establish that (1) medical compensation provided
to a health care provider outside of North Carolina or pursuant to the workers’
compensation laws of another state may be considered in determining whether a
plaintiff has filed a workers’ compensation claim in North Carolina within two years
of the last medical compensation, but that (2) for purposes of determining a plaintiff’s
compliance with N.C. Gen. Stat. § 97-24(a)(ii), disability or other indemnity payments
are not considered “other compensation” within the meaning of the statute unless the
payments were made pursuant to a North Carolina workers’ compensation claim.
In the present case, plaintiff filed Industrial Commission Form 18 seeking
workers’ compensation benefits within two years of the last payment of medical
compensation. The fact that the payments were made to health care providers in
Boston, pursuant to the Tennessee workers’ compensation statute and fee schedule,
does not invalidate them for purposes of determining whether plaintiff’s claim was
timely filed. In addition, plaintiff’s entitlement to disability payments under the
North Carolina Workers’ Compensation Act had not been previously determined at
the time that plaintiff filed a workers’ compensation claim. We conclude that plaintiff
met the criteria specified in N.C. Gen. Stat. § 97-24(a)(ii), and that the Industrial
Commission had jurisdiction over plaintiff’s claim.
In reaching this conclusion, we have considered, but have ultimately rejected,
defendants’ arguments for a contrary result. Preliminarily, we note that the parties
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Opinion of the Court
have directed our attention to the circumstances of defendants’ payments to plaintiff,
as pertinent to whether plaintiff was informed that the medical compensation and
disability payments were made pursuant to Tennessee law. Plaintiff characterizes
the payments made by defendants as having been made “unilaterally and secretly,”
while defendants note that plaintiff failed to make inquiries or to pursue the question
of whether Tennessee or North Carolina law was the basis of the payments. However,
N.C. Gen. Stat. § 97-24(a)(ii) does not include a requirement either that an employer
keep a claimant informed of the legal status of disability or medical compensation
payments or, alternatively, that a plaintiff investigate this matter. Accordingly, we
do not consider the parties’ arguments on this issue. Similarly, our conclusion that
the Industrial Commission had subject matter jurisdiction has been reached without
consideration of plaintiff’s estoppel arguments.
Defendants further argue that the payments made to plaintiff’s health care
providers in Boston do not constitute medical compensation within the meaning of
N.C. Gen. Stat. § 97-24(a)(ii). Defendants state that:
N.C. Gen. Stat. § 97-24 only refers to compensation and
medical compensation defined by N.C. Gen. Stat. § 97-2
and paid pursuant to N.C. Gen. Stat. § 97-18 and N.C. Gen.
Stat. § 97-25. N.C. Gen. Stat. § 97-24 does not refer to
medical compensation paid pursuant to a statutory
structure of another state.
Contrary to defendants’ contention, there is no reference in N.C. Gen. Stat. §
97-24 to § 97-2, § 97-18, or § 97-25. While it is true that N.C. Gen. Stat. § 97-24 “does
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not refer to compensation paid pursuant to a statutory structure of another state,”
defendant ignores the fact that McGhee and Clark have explicitly held that such
payments are “medical compensation.” We conclude that this argument lacks merit.
Defendants next argue that the Commission’s “interpretation” of N.C. Gen.
Stat. § 97-24 is “inconsistent with the rules of statutory construction.” However, the
Commission was not charged with developing an “interpretation” of N.C. Gen. Stat.
§ 97-24 on a blank slate; rather, the Commission properly applied the holdings of
McGhee and Clark to the facts of this case.
Defendants also contend that the Commission failed to employ the statutory
definitions of the terms “medical compensation” and “health care provider.” The basis
of defendants’ argument on this issue is a 2011 amendment to § 97-2(19). Previously,
the statute defined medical compensation in relevant part as “medical, surgical,
hospital, nursing, and rehabilitative services, and medicines, sick travel, and other
treatment, including medical and surgical supplies, as may reasonably be required to
effect a cure or give relief [.]” Effective 23 June 2011 and applying to claims arising
after that date, the definition was changed to “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
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effect a cure or give relief,” with the addition of the underlined phrase “including, but
not limited to, attendant care services prescribed by a health care provider authorized
by the employer or subsequently by the Commission[.]”
The basis of defendants’ argument is not entirely clear. However, it appears
that defendants contend that the proper way to interpret § 97-2(19) is to apply the
phrase “prescribed by a health care provider” to all the listed types of medical
compensation. Defendants contend that, because “health care provider” is defined as
including only medical care performed pursuant to the North Carolina Workers’
Compensation Act, “only those payments made to clinicians providing medical
services pursuant to the North Carolina Workers’ Compensation Act constitute
‘medical compensation.’ ” We do not agree. First, the structure of the phrasing in the
definition does not support defendants’ position. Secondly, the phrase at issue
specifies that medical compensation is defined as “including, but not limited to” the
attendant care that is described. Moreover, the injury upon which plaintiff’s claim is
based occurred in 2002, well before the 2011 amendment to the text of N.C. Gen. Stat.
§ 97-2(19). As a result, the earlier version of the statute governs our analysis of this
issue.
Finally, defendants fail to consider the precedential effect of our opinion in
Clark which, citing McGhee, held that medical compensation paid pursuant to the
workers’ compensation laws of a state other than North Carolina could be considered
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for purposes of determining a claimant’s compliance with N.C. Gen. Stat. § 97-
24(a)(ii). Defendants first contend that McGhee is distinguishable from the present
case because in McGhee the “defendants stipulated that [their] medical payments
constituted ‘medical compensation.’ ” We are at a loss to understand the basis of this
erroneous assertion, given that in McGhee the “Defendants argue[d] that [the]
plaintiff neither filed her claim within two years of the accident, nor within two years
after the last payment of medical compensation by [the] defendants” and that “the
payment at issue, $ 72,554.38 paid to medical providers in Virginia, does not meet
the statutory definition of ‘medical compensation’ under section 97-2(19) of the North
Carolina General Statutes[.]” McGhee at 425-26, 618 S.E.2d at 836. We conclude
that defendants have misstated the facts of McGhee and that the defendants in that
case did not stipulate that the medical compensation at issue met the statutory
definition.
In their Reply Brief, defendants acknowledge our holding in Clark, and
essentially argue that Clark was wrongly decided. We do not agree with defendants
on this point. Moreover, regardless of the merits of our decision in Clark, it is long-
established that “[w]here a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court.” In re Civil Penalty at
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384, 379 S.E.2d at 37. For the reasons discussed herein, we conclude that the
Industrial Commission had jurisdiction over plaintiff’s claim.
Award of Attendant Care
In this case, plaintiff’s wife provided attendant care services for plaintiff
beginning in 2006, when plaintiff underwent his first leg amputation surgery. When
plaintiff filed Industrial Commission Form 18 seeking workers’ compensation
benefits, he requested retroactive and prospective compensation for the cost of the
attendant care provided by his wife. Defendants do not dispute that a workers’
compensation claimant may receive reimbursement for the cost of attendant care
provided prior to the date when he filed a claim for North Carolina workers’
compensation benefits. However, in order “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. If [the] plaintiff did not
seek approval within a reasonable time, he is not entitled to reimbursement.”
Mehaffey v. Burger King, 367 N.C. 120, 128, 749 S.E.2d 252, 257 (2013) (citing
Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 593, 264 S.E.2d 56, 63 (1980)).
Defendants argue that the Commission erred by awarding plaintiff compensation for
the cost of attendant care provided by his wife prior to the date on which he filed
Industrial Commission Form 18, on the grounds that plaintiff failed to seek approval
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for attendant care within a reasonable time after he selected his wife to provide this
service. We disagree.
The crux of defendants’ argument is that, in determining whether plaintiff
sought approval from the Commission to receive attendant care within a reasonable
time, our starting point should be the date of plaintiff’s injury or, at the latest, the
year 2006 when plaintiff’s wife began providing full-time attendant care. We have
concluded above that plaintiff properly filed a claim for workers’ compensation
benefits within two years of the last payment for medical compensation. Prior to his
filing a claim, there was no basis upon which the North Carolina Industrial
Commission might have exercised jurisdiction over plaintiff’s entitlement to workers’
compensation benefits, including the approval of payment for attendant care services.
As discussed above, we are resolving the issues raised in this appeal without formal
consideration of the doctrine of estoppel. Nonetheless, we observe that between 2002
and 2011 plaintiff had no reason to file a claim with the North Carolina Industrial
Commission. The Commission found that plaintiff made his request for attendant
care “within a reasonable time of having selected his wife to provide those services
and requested approval from the Industrial Commission of his wife as his attendant
care provider within a reasonable time of having filed his North Carolina claim.” We
hold that this finding is supported by the evidence, and that it supports the
Commission’s conclusion that:
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20. . . . Immediately upon filing his claim for workers’
compensation benefits in North Carolina in 2013, plaintiff
did request approval from the North Carolina Industrial
Commission of attendant care services payable to his wife,
Mrs. Hall. The Commission, therefore, concludes that
plaintiff’s request for retroactive reimbursement of
attendant care to his wife was made within a reasonable
time.
We conclude that the Commission did not err by awarding plaintiff retroactive
workers’ compensation benefits for the cost of his attendant care, and that defendants
are not entitled to relief on the basis of this argument.
Sanctions
Defendants’ final argument is that the Industrial Commission erred by
imposing a sanction against them for unfounded litigiousness. In its award, the
Commission stated that:
As sanctions for defendants’ unfounded litigiousness of the
jurisdictional issue and denying the compensability of
plaintiff’s various medical conditions that Dr. Pribaz
correlated to plaintiff’s original compensable right leg
injury, without presenting expert medical evidence to the
contrary, defendants shall be responsible for paying to
plaintiff’s counsel the lump sum of [$5,000.00]. . . .
N.C. Gen. Stat. § 97-88.1 (2016) provides that if “the Industrial Commission
shall determine that any hearing has been brought, prosecuted, or defended without
reasonable ground, it may assess the whole cost of the proceedings including
reasonable fees for defendant’s attorney or plaintiff’s attorney upon the party who
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has brought or defended them.” Our review of the Commission’s decision to impose a
sanction is a two-step process:
First, whether the defendant had a reasonable ground to
bring a hearing is reviewable by this Court de novo. If this
Court concludes that a party did not have reasonable
ground to bring or defend a hearing, then we review the
decision of whether to make an award and the amount of
the award for an abuse of discretion. In conducting the first
step of the analysis, the reviewing court should consider
the evidence presented at the hearing to determine [the]
reasonableness of a defendant’s claim. As such, the burden
is on the defendant to place in the record evidence to
support its position that it acted on reasonable grounds.
Blalock v. Southeastern Material, 209 N.C. App. 228, 231-32, 703 S.E.2d 896, 899
(2011) (internal citations and quotation marks omitted).
On appeal, defendants make a conclusory assertion that “[b]ased upon the
statutory argument above, the arguments distinguishing this matter from McGhee,
and the facts of this matter, Defendants did not engage in unfounded and stubborn
litigiousness.” Defendants have not directed our attention to any legal or factual
basis for their denial of the compensability of the medical conditions to which the
Commission referred in its award. In regard to defendants’ denial of the
Commission’s jurisdiction, we conclude that the issue of jurisdiction was previously
resolved in opinions issued by this Court that are, in all material respects,
indistinguishable from the present case and that therefore constitute binding
precedent. We conclude that the Commission did not err by concluding that
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Opinion of the Court
defendants had engaged in unfounded litigiousness and did not abuse its discretion
in its award of attorney’s fees to plaintiff’s counsel.
Appeal by Plaintiff
Attendant Care
Plaintiff first argues that the Commission erred by limiting its award of the
cost of attendant care to eight hours per day. Plaintiff offered expert medical
testimony that he was in need of eight to twelve hours of attendant care per day,
seven days per week. It is plaintiff’s contention that the Commission must view the
evidence in the light most favorable to the claimant, and that this requirement strips
the Commission of the authority to exercise its discretion to choose the appropriate
award when presented with a range of possible awards. We do not agree.
Plaintiff directs our attention to the statement in Adams v. AVX Corp., 349
N.C. 676, 681, 509 S.E.2d 411, 414 (1998), that “[t]he evidence tending to support
[the] plaintiff’s claim is to be viewed in the light most favorable to [the] plaintiff, and
[the] plaintiff is entitled to the benefit of every reasonable inference to be drawn from
the evidence.” However, the issue in Adams was whether the plaintiff was entitled to
any workers’ compensation benefits. The opinion did not address the Commission’s
discretion to choose an appropriate award based upon its consideration of the
evidence. Plaintiff contends that, in a situation such as the present case in which the
sole medical expert testifies to a high to low range of the number of hours of medical
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Opinion of the Court
services as being medically necessary, if the Commission has the discretion to select
any number of hours within that range, this would “render[] the Adams mandate
meaningless.” In essence, plaintiff is asking us to reweigh the evidence, which we will
not do:
Because it is the fact-finding body, the Commission is the
sole judge of the credibility of the witnesses and the weight
to be given their testimony. The Commission’s findings of
fact are conclusive on appeal if they are supported by any
competent evidence. Accordingly, this Court does not have
the right to weigh the evidence and decide the issue on the
basis of its weight.
Shaw v. US Airways, Inc., 217 N.C. App. 539, 541-42, 720 S.E.2d 688, 690 (2011)
(internal quotation omitted). We conclude that the Commission did not err by
awarding plaintiff eight hours per day of attendant care.
Per Diem Allowance
Plaintiff argues next that the Commission erred by failing to require
defendants to continue payment of a per diem allowance of $50.00 per day for meals
that defendants had previously paid to plaintiff between 2004 and 2011. The sole
basis of plaintiff’s argument on this issue is that defendants should be estopped from
discontinuing these payments. We conclude that plaintiff is not entitled to relief on
the basis of this argument.
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Opinion of the Court
The parties agree that the per diem allowance was for meals. Plaintiff’s only
argument is that defendants should be estopped from discontinuing the per diem
payments.
[T]he essential elements of an equitable estoppel as related
to the party estopped are: (1) Conduct which amounts to a
false representation or concealment of material facts, or at
least, which is reasonably calculated to convey the
impression that the facts are otherwise than, and
inconsistent with, those which the party afterwards
attempts to assert; (2) intention or expectation that such
conduct shall be acted upon by the other party, or conduct
which at least is calculated to induce a reasonably prudent
person to believe such conduct was intended or expected to
be relied and acted upon; (3) knowledge, actual or
constructive, of the real facts. As related to the party
claiming the estoppel, they are: (1) lack of knowledge and
the means of knowledge of the truth as to the facts in
question; (2) reliance upon the conduct of the party sought
to be estopped; and (3) action based thereon of such a
character as to change his position prejudicially.
Gore v. Myrtle/Mueller, 362 N.C. 27, 33-34, 653 S.E.2d 400, 405 (2007) (quoting
Hawkins v. M & J Fin. Corp., 238 N.C. 174, 177-178, 77 S.E.2d 669, 672 (1953)).
Defendants paid the per diem meal allowance for seven years. Plaintiff has not
established that he relied upon a misrepresentation that these payments would
continue indefinitely. In addition, the Commission found that the per diem payments
did not constitute medical compensation. We conclude that plaintiff has failed to
establish that he produced evidence of the elements of equitable estoppel and that
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Opinion of the Court
the Commission did not err by ruling that defendants were entitled to cease payment
of the per diem allowance.
Housing Allowance
Plaintiff’s final argument is that the Commission erred by requiring him to
contribute $400 per month toward the cost of renting his apartment. Plaintiff
contends that the Commission improperly allowed defendants a “credit” against their
obligation to pay the entire cost of plaintiff’s housing. Upon review of the facts of this
case, in the context of the relevant jurisprudence, we conclude that plaintiff is not
entitled to relief on the basis of this argument.
A leading case on the issue of an employer’s responsibility to provide
handicapped accessible housing for a workers’ compensation claimant is Derebery v.
Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986).1 In Derebery:
The parties agree[d that] the applicable statutory
provisions are contained in the following part of N.C.G.S. §
97-29: “In cases of total and permanent disability,
compensation, including reasonable and necessary nursing
services, medicines, sick travel, medical, hospital, and
other treatment or care of [sic] rehabilitative services shall
be paid for by the employer during the lifetime of the
injured employee.”2
1 Derebery addressed an employer’s obligation to a claimant who was permanently and totally
disabled. In this case, the Commission has awarded plaintiff temporary total disability benefits, but
the issue of whether defendant is permanently and totally disabled has not been resolved. This
distinction does not affect the outcome of plaintiff’s appeal.
2 Effective 23 June 2011 and applying to cases arising after that date, the lifetime entitlement
to medical compensation was replaced by a requirement that the issue of a claimant’s total disability
be revisited approximately every ten years. Because the present case arose before 2011, if plaintiff is
determined to be permanently and totally disabled, he will be entitled to lifetime medical
compensation.
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Opinion of the Court
Id. at 199, 347 S.E.2d at 818. After reviewing this statute and cases from other
jurisdictions, our Supreme Court “conclude[d] on the basis of the legislative history
surrounding N.C. Gen. Stat. § 97-29, this Court’s prior interpretation of that statute
and the persuasive authority of other courts interpreting similar statutes that the
employer’s obligation to furnish ‘other treatment or care’ may include the duty to
furnish alternate, wheelchair accessible housing.” Id. at 203-04, 347 S.E.2d at 821
(emphasis added).
In Timmons v. North Carolina DOT, 123 N.C. App. 456, 460, 473 S.E.2d 356,
358 (1996), aff’d per curiam, 346 N.C. 173, 484 S.E.2d 551 (1997), another case in
which the claimant was permanently and totally disabled, the plaintiff was building
a house. The Commission held that the defendant should pay the additional cost of
rendering the house handicapped accessible, but was not responsible for the entire
cost of the construction:
At the time of [the] plaintiff’s injury in 1980, G.S. § 97-25
required, in relevant part: “medical, surgical, hospital,
nursing services, medicines, . . . rehabilitation services, and
other treatment including medical and surgical supplies as
may reasonably be required to . . . give relief . . . shall be
provided by the employer.” . . . In Derebery v. Pitt County
Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986), the
North Carolina Supreme Court held that an employer’s
duty to provide “other treatment or care” as contained in
G.S. § 97-29, was sufficiently broad as to include the duty
to provide handicapped accessible housing. . . . In our view,
the words “and other treatment” contained in G.S. § 97-25
are susceptible of the same broad construction accorded the
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Opinion of the Court
similar language of G.S. § 97-29 by the Supreme Court in
Derebery, and we reject [the] defendant’s argument to the
contrary.
We do not agree with [the] plaintiff, however, that Derebery
requires [the] defendant to pay the entire cost of
constructing his residence. . . . [T]he expense of housing is
an ordinary necessity of life, to be paid from the statutory
substitute for wages provided by the Workers’
Compensation Act. The costs of modifying such housing,
however, to accommodate one with extraordinary needs
occasioned by a workplace injury, such as the plaintiff in
this case, is not an ordinary expense of life for which the
statutory substitute wage is intended as compensation.
Such extraordinary and unusual expenses are, in our view,
properly embraced in the “other treatment” language of
G.S. § 97-25, while the basic cost of acquisition or
construction of the housing is not.
Id. at 461-62, 473 S.E.2d at 359.
In Burnham v. McGee Bros. Co., 221 N.C. App. 341, 727 S.E.2d 724 (2012), the
plaintiff, who was permanently and totally disabled, rented a two-bedroom
handicapped accessible apartment and asked defendants to pay the additional cost
for the second bedroom that he required for storage of equipment related to his
disability. “Plaintiff specified that he sought compensation for ‘the additional cost of
housing due to [his] injury.’ In response, [the] defendants asserted that they had no
obligation to contribute to [the] Plaintiff’s ongoing rental expenses because applicable
‘case law establishes that rent is an ordinary expense of life.’ ” Id. at 344, 727 S.E.2d
at 726. The Commission ordered the defendants to pay the additional rent for the
second bedroom. On appeal, the plaintiff argued that the defendants had no valid
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Opinion of the Court
basis upon which to challenge their obligation to pay the additional part of the
plaintiff’s rent. This Court disagreed, noting that only a few cases had addressed
such issues:
. . . [The] Plaintiff argues that [the] Defendants had no
valid legal basis for resisting his request for assistance
with his rental expenses given that an employer’s
“responsibility to pay for proper accommodative housing
has been part of North Carolina law for many years.”
However, our review of the pertinent decisions in this area
indicates that the exact point at issue in this case has not
been specifically addressed.
Id. at 347, 727 S.E.2d at 728. Burnham then summarized the two earlier opinions,
noting that “both Derebery and Timmons draw a distinction between the ordinary
expenses of life and the extraordinary expenses associated with modifying or
constructing housing for the purpose of rendering it handicapped-accessible” but that
“neither decision addresses an employer’s obligation to pay ongoing rental expenses
that are attributable to a plaintiff’s disability such as the cost of an additional
bedroom used to store the equipment, supplies, and mobility-related devices needed
to accommodate [the] Plaintiff’s paraplegia.” Id. at 348-49, 727 S.E.2d at 729. This
Court concluded that, given “the paucity of published cases addressing the extent to
which an employer or insurance carrier is liable for the additional costs associated
with housing for handicapped individuals and the complete absence of any decision
addressing the extent to which employers and their carriers are liable for ongoing
increased rental payments stemming from needs like those present here,” the
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Opinion of the Court
Commission did not err by determining that the defendants did not act unreasonably
in defending against the plaintiff’s claim for rental payments. Id. at 349, 727 S.E.2d
at 729-30.
In 2013, this Court decided Espinosa v. Tradesource, Inc., 231 N.C. App. 174,
752 S.E.2d 153 (2013), which reviewed an opinion of the Industrial Commission in
which the defendants were ordered to pay, inter alia, the pro rata difference between
the permanently and totally disabled plaintiff’s pre-injury rent and his post-injury
rent. Both parties appealed, with the defendants arguing that it was error to require
them to pay anything beyond the cost of rendering the apartment handicapped
accessible, and the plaintiff arguing that the Commission erred by reducing his award
by the amount he paid for rent before the injury. This Court upheld the Commission:
As a preliminary point, we note that the parties’ arguments
assume rules that are rigid and broadly applicable in the
cases discussed above. A reading of section 97-25 makes it
clear, however, that an award of “other treatment” is in the
discretion of the Commission. . . . Section 97-2(19), as
written at the time of [the] Plaintiff’s injury, further
explained that the type of medical compensation the
employer must pay is “in the judgment of the
Commission[.]” . . . The Supreme Court’s decision in
Derebery and our own decision in Timmons represent the
outer limits of the Commission’s authority under those
statutes, not entirely new rules to be followed in place of or
in addition to the statutes created by our legislature.
In this case, the Commission determined that [the]
Defendants should pay the pro rata difference between the
rent required for [the] Plaintiff’s new, handicapped-
accessible home and the rent [the] Plaintiff had to pay as
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Opinion of the Court
an ordinary expense of life before his injury. The
Commission sensibly reasoned that living arrangements
constitute an ordinary expense of life and, thus, should be
paid by the employee. The Commission also recognized,
however, that a change in such an expense, which is
necessitated by a compensable injury, should be
compensated for by the employer. Because [the] Plaintiff
did not own his own home in this case, he was required to
find new rental accommodations that would meet his
needs. In this factual circumstance, it was appropriate for
the Commission to require the employer to pay the
difference between the two.
While circumstances may occur in which an employer is
required to pay the entire cost of the employee’s adaptive
housing, neither the Supreme Court’s opinion in Derebery
nor our holding in Timmons support [the] Plaintiff’s
assertion that such a requirement is necessary whenever
an injured worker does not own property or a home. Such
a ruling would reach too far.
Id. at 186, 752 S.E.2d at 160-61 (emphasis in original).
We conclude that Espinosa is functionally indistinguishable from the present
case and that our jurisprudence clearly establishes both that (1) an employer may be
required to pay for the expense of providing handicapped housing for a disabled
claimant, and that (2) the Commission has the discretion to require the claimant to
contribute a reasonable amount toward rent, such as the amount of his pre-injury
rent. We conclude that the Commission did not err by requiring plaintiff to contribute
to the cost of renting a handicapped-accessible apartment.
Conclusion
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Opinion of the Court
Thus, for the reasons discussed above, we conclude that the Industrial
Commission did not err and that its opinion and award should be affirmed.
AFFIRMED.
Judges DAVIS and MURPHY concur.
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