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1. Workers' Compensation--attorney fees--law of the case
A Supreme Court reinstatement of an order in a workers' compensation case did not
become the law of the case on intervenor's entitlement to attorneys' fees where the Supreme
Court's ruling did not address the additional attorneys' fee requested here or the fee awarded in
the order.
2. Workers' Compensation--attorney fees--appeal of order--not a collateral attack on
earlier order
An appeal of an order by an Industrial Commissioner awarding attorney fees was not an
improper collateral attack on an order of the Full Commission which had earlier awarded attorney
fees. Although intervenor suggested that the second order awarding attorney fees was simply a
supplemental order expounding on a Supreme Court ruling and taxing attorney fees for the entire
appellate process, the Supreme Court ruling reinstating the earlier order did not address attorney
fees and, although intervenor was granted attorney fees in the order appealed from, intervenor
was incorrect to assume that the Supreme Court intended to change long-held statutory law.
Moreover, intervenor did not move for the attorney fees in question until after the Supreme
Court's ruling and the order award was a new and separate order properly appealed to the
Commission.
3. Workers' Compensation--Industrial Commission panel--two signatures on opinion
Although intervenor argued that two Commissioners cannot constitute a panel of the
Industrial Commission for the decision of a workers' compensation action, the opinion here
clearly stated that there was a third commissioner on the panel even though the third signature
was lacking due to illness.
4. Workers' Compensation--attorney fees--care provider--Medicaid accepted--
provider's fees not a benefit to employee
The Industrial Commission correctly concluded that intervenor was not entitled to
attorney fees in a workers' compensation action where intervenor was a nursing home which had
accepted payment from Medicaid. In so doing, intervenor gave up its right to hold the injured
employee liable for any costs associated with the care aside from the standard deductible,
coinsurance or copayments, and the plain language of N.C.G.S. § 97-88 only authorizes payments
to the injured employee for his costs. Intervenor cannot now argue that payment of its attorney
fees is either payment of the injured employee's costs or is of some benefit to the injured
employee.
The Jernigan Law Firm, by N. Victor Farah and Leonard T. Jernigan, Jr., for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Jeffrey A. Doyle, for defendant-appellees.
Lore & McClearen, by R. James Lore, for intervenor-appellant.
HUNTER, Judge.
The present appeal is the result of an opinion and award of
the North Carolina Industrial Commission (“Commission”) entered on
3 June 1999 due to a remand from our Supreme Court in Pearson v. C.
P. Buckner Steel Erection Co., 348 N.C. 239, 498 S.E.2d 818 (1998),
which contains a full review of the facts and procedural history of
this case -- most of which is unnecessary to resolve this appeal.
In the present appeal, the intervenor Cary Health Care Center,
Inc., doing business as Cary Manor Nursing Home (“intervenor”),
appeals the two-member panel of the Commission's reversal of an
award of attorneys' fees to intervenor. Intervenor contends that
the two commissioners who entered the opinion and award of 3 June
1999 did not have jurisdiction to do so (the third member being
absent due to illness), and; assuming arguendo they did, intervenor
contends the panel misapplied N.C. Gen. Stat. § 97-88. We disagree
and affirm the Commission's opinion and award.
Briefly, the facts relevant to the present appeal reveal that
defendant-employer C.P. Buckner Steel Erection and defendant-
insurer Liberty Mutual Insurance Company (collectively
“defendants”), appealed the prior award of the Commission (dated
19 December 1995) which ordered defendants to pay intervenor the
difference between the amount paid intervenor by Medicaid and the
amount allowable under the Commission's fee schedule, and whichalso ordered defendants to pay intervenor $500.00 in attorneys'
fees. In Pearson v. C. P. Buckner Steel Erection Co., 126 N.C.
App. 745, 486 S.E.2d 723 (1997) (“1997 appeal”), this Court held
that:
Attorneys' fees may be awarded by the
Commission when the hearing or proceeding is
brought by the insurer and the insurer is
ordered to pay or continue to pay benefits.
N.C. Gen. Stat. § 97-88 (1991). In the
present case, the opinion and award ordering
defendants to pay the expenses in excess of
those paid by Medicaid was not the result of
an appeal by the insurer. It was the direct
result of a motion made by plaintiff. Therefore, an award of attorneys' fees to the
plaintiff was improper.
Id. at 752, 486 S.E.2d at 728 (emphasis added). The Supreme Court
reversed and remanded on appeal by intervenor in Pearson v. C. P.
Buckner Steel Erection Co., 348 N.C. 239, 498 S.E.2d 818 (“1998
appeal”), stating,
we hold that the Commission's 19 December 1995
order directing defendants to pay intervenor
and plaintiff's other health-care providers
the difference between the amount reimbursed
to Medicaid and the amount allowable under the
Act was a proper exercise of its authority.
We further hold that the Commission correctly
applied the workers' compensation law of this
State and that such law is not preempted by
federal Medicaid law. We therefore reverse
the Court of Appeals' holding that the
Commission's 19 December 1995 order was in
error. . . .
Pearson, 348 N.C. at 246-47, 498 S.E.2d at 823. However, the
Supreme Court did not rule on the issue of attorneys' fees.
On 19 June 1998, intervenor petitioned for supplemental
attorneys' fees pursuant to N.C. Gen. Stat. § 97-88 for the
additional time necessary to defend against defendants' 1997 appeal
to this Court, and intervenor's 1998 appeal to the Supreme Court
which resulted in reinstatement of the Commission's order of 19
December 1995. On 7 August 1998, Commissioner Bolch entered an
order for the Full Commission requiring defendants to pay plaintiff
the sum of $10,000.00 as attorneys fees for the time intervenor's
counsel spent in defending against defendants' appeals. Defendants
sent a letter to Commissioner Mavretic, asking for a stay from the
order dated 7 August 1998, and requesting a hearing de novo. An
order staying the 7 August 1998 order was entered by IndustrialCommission Chairman Howard Bunn on 31 August 1998, “pending final
resolution of Defendants' appeal.” On 26 October 1998, intervenor
filed a motion to dismiss, alleging that defendants failed to
timely appeal the 7 August 1998 order to the North Carolina Court
of Appeals as required by N.C. Gen. Stat. § 97-86. Intervenor
asserted that the Commission could not proceed to review said order
by collateral attack through a separate Full Commission panel. On
3 June 1999, two Full Commissioners filed the order denying
intervenor's motion to dismiss, reversing the 7 August 1998 order
and its granting of $10,000.00 in attorneys' fees to intervenor,
and denying intervenor's motion for additional attorneys' fees
under N.C. Gen. Stat. § 97-88.1.
Although on 10 June 1999 intervenor filed its notice of appeal
from the order of 3 June 1999; we note that on 14 June 1999,
unaware that intervenor had filed notice of appeal, the Full
Commission filed an amended opinion and award which clarified the
Commission's position as to why it ruled as it did. (However, the
amended opinion in no way altered any of the Commission's findings
or conclusions of the original 3 June 1999 order.) Defendant
requested that the Commission's amended order and award be included
in the record on appeal. However, in her order settling the record
on appeal, Commissioner Renee Riggsbee stated that:
When the Order was filed, the Full Commission
panel was not aware that Intervenor had filed
notice of appeal two days earlier.
Nevertheless, plaintiff's notice of appeal was
filed before the Commission's Order, thereby
divesting the Commission of jurisdiction.
Although the Order does not change the effect
of the original Opinion and Award, it is [my]opinion . . . that the Order further explains
and clarifies the Commission's position and,
therefore, does not merely correct a clerical
mistake, oversight, or omission within the
meaning of Rule 60(a) of the Rules of Civil
Procedure. Accordingly, the Order amending
Opinion and Award for the Full Commission
filed 14 June 1999 shall not be included in
the record on appeal. Defendants may petition
the Court of Appeals for an order allowing the
inclusion of the Commission's Order.
In response, defendants petitioned this Court for a Writ of
Certiorari on 15 October 1999 pursuant to N.C.R. App. P. 21,
requesting that the Commission's amended opinion and award be
included as part of the record on appeal. This Court granted the
writ and allowed the record to be so amended. Thus, we now
consider intervenor's appeal to be from both of the Commission's
orders and awards filed 3 June and 14 June 1999, and any objections
made by intervenor to the 3 June 1999 order, we deem made to the 14
June 1999 order also.
Intervenor argues that the two commissioners who signed and
entered the opinion and award of 3 June 1999 lacked jurisdiction to
do so (1) because the Supreme Court's ruling in the 1998 appeal was
res judicata with regard to attorneys' fees; (2) because defendants
cannot collaterally attack a Full Commission decision; and (3)
because three Commissioners are necessary to make up a panel.
[1]Intervenor first contends that once the Supreme Court
ordered reinstatement of the 19 December 1995 order which awarded
$500.00 in attorneys' fees to intervenor, intervenor's entitlement
to attorneys' fees became the law of the case. We disagree. It is
true that reinstatement of the 19 December 1995 order reinstatedthe $500.00 attorneys' fee awarded as of that date. However, the
Supreme Court's ruling does not address the $10,000.00 attorneys'
fee requested by intervenor in the present appeal. In fact, the
Supreme Court's ruling did not even address the attorneys' fees
awarded in the 19 December 1995 order. (See Pearson, 348 N.C. 239,
498 S.E.2d 818.) Additionally, we note that intervenor has failed
to properly preserve this argument in an assignment of error.
Accordingly, we will not consider it. N.C.R. App. P. 10.
[2]Secondly, intervenor argues that the two Commissioners who
signed the 3 June 1999 opinion and award lacked jurisdiction to
overturn Commissioner Bolch's 7 August 1998 “Order for Attorneys
Fees Pursuant to G.S. 97-88.” It is intervenor's contention that
by appealing Commissioner Bolch's award of attorneys' fees to
intervenor, defendants improperly collaterally attacked one Full
Commission panel's order and requested review by another Full
Commission panel. However, we note that intervenor continually
suggests that Commissioner Bolch's order was simply a “supplemental
order” in that it somehow expounded on the Supreme Court's ruling
and taxed defendants with intervenor's attorneys' fees for the
entire appellate process. We disagree.
As stated above, the Supreme Court's ruling reinstating the
Commission's 19 December 1995 order did NOT address attorneys' fees
at all. It neither addressed whether the fees were properly
granted nor whether intervenor was, in fact, entitled to fees.
Instead, the Court's focus was strictly on the merits of
intervenor's argument that defendants should be required to pay thedifference between what Medicaid had already paid intervenor and
the amount intervenor would be entitled to under the Industrial
Commission's payment guidelines. Pearson, 348 N.C. 239, 246, 498
S.E.2d 818, 822-23. Thus, although intervenor was granted
attorneys' fees in the order, intervenor is incorrect to assume --
and we refuse to assume -- that our Supreme Court intended to
change the long-held statutory law which requires that any grant of
attorneys' fees must benefit the injured employee. N.C. Gen. Stat.
§ 97-88.
We further note that intervenor did not even move the
Commission for the attorneys' fees in question at present until
after the Supreme Court's ruling. Thus, Commissioner Bolch's award
of attorneys' fees, although clearly based on the fact that the
Commission's order “filed December 19, 1995 . . . was ultimately
affirmed by the Supreme Court of North Carolina,” was not, as
intervenor contends, a “supplemental order for the Full
Commission,” but in fact was a new and separate order. Thus,
defendants properly appealed to the Full Commission for a hearing
on the matter pursuant to N.C. Gen. Stat. § 97-88.
[3]Thirdly, regarding intervenor's argument that two
Commissioners cannot constitute a panel, we note that although only
two Commissioners signed the opinion and award of 3 June 1999, the
opinion clearly states that there was a third Commissioner on the
panel. Explaining the reason why a third signature is not on the
filed document, Commissioner Dianne C. Sellers wrote:
“Commissioner Christopher Scott, who was a member of the FullCommission panel which reviewed this case, was unavailable at the
time of the filing of this Opinion and Award because of illness.”
Therefore, we overrule intervenor's argument.
[4]In the alternative, intervenor next contends that even if
the two member panel had jurisdiction, its opinion and award of 3
June 1999 misapplied the applicable statute and thus, the
Commission concluded in error that intervenor was not entitled to
attorneys' fees. Again, we disagree.
N.C. Gen. Stat. § 97-88 provides:
If the Industrial Commission at a hearing
on review or any court before which any
proceedings are brought on appeal under this
Article, shall find that such hearing or
proceedings were brought by the insurer and
the Commission or court by its decision orders
the insurer to make, or to continue payments
of benefits, including compensation for
medical expenses, to the injured employee, the
Commission or court may further order that the
cost to the injured employee of such hearing
or proceedings including therein reasonable
attorney's fee to be determined by the
Commission shall be paid by the insurer as a
part of the bill of costs.
N.C. Gen. Stat. § 97-88 (1999) (emphasis added). We note that the
plain language of this statute only authorizes payments to the
injured employee for his costs. Case law well establishes that
where the statutory language is “clear and without ambiguity,
'there is no room for judicial construction,' and the statute must
be given effect in accordance with its plain and definite meaning.”
Avco Financial Services v. Isbell, 67 N.C. App. 341, 343, 312
S.E.2d 707, 708 (1984) (quoting Williams v. Williams, 299 N.C. 174,
180, 261 S.E.2d 849, 854 (1980)). In its opinion and award filed 3 June 1999, Commissioner
Sellers, writing for the panel, found in pertinent part that:
5. Upon remand [from the Supreme Court]
to the Industrial Commission, plaintiff and
[intervenor] separately petitioned for
attorney's fees taxed to defendants pursuant
to N.C. Gen. Stat. § 97-88 . . . . On 7
August 1999, Commissioner Bolch . . . filed an
Order granting fees to counsel for
[intervenor] in the amount of $10,000.00
. . . . The motion filed by plaintiff [for
attorneys' fees] appears to be still pending
before Commissioner Bolch.
(Emphasis added.) Thus, because the plain language of N.C. Gen.
Stat. § 97-88 is clear and unambiguous on its face, and because the
evidence clearly supported a finding that plaintiff's and
intervenor's attorneys' fees were separate and apart, the
Commission specifically concluded as law that:
2. N.C. Gen. Stat. § 97-88 endows the
Industrial Commission with the authority to
order an insurer to pay an injured employee
reasonable attorney's fees. It does not
empower the Commission to award attorney's
fees to a medical provider or to an intervenor
in any manner or for any reason. Further, the
statute expressly limits its purpose to
reimbursing “the cost [of appellate review] to
the injured employee.” As there is no
evidence that the award of attorney's fees to
the intervenor in this case was made to
satisfy “costs to the injured employee,” the
award contained in the 7 August 1998 Order
. . . is not proper under the Act.
3. . . . Given the absence of statutory
authority under N.C. Gen. Stat. § 97-88 for
awarding fees to any party other than the
“injured employee,” defendants' application
for review was reasonable; therefore, there is
no basis upon which to award the intervenor
with attorney's fees for the defense of the
resulting review.
(Emphasis added.)
In reviewing the record before us, we agree with Commissioner
Sellers that it is devoid of any evidence indicating that the
plaintiff in the present case incurred attorneys' fees as a result
of intervenor's involvement in the case at bar. In fact, once
intervenor accepted Medicaid as payment for the injured employee's
medical care under Medicaid, Title XIX of the Social Security Act,
42 U.S.C. §§ 1396-1396v (1994) and in conjunction with North
Carolina's Medicaid program as set out in N.C. Gen. Stat. §§ 108A-
54 thru 108A-70.5 (1997), intervenor gave up its right to hold the
injured employee liable for any costs associated with that care
aside from the standard deductible, coinsurance or copayment
required. “A State plan must provide that the Medicaid agency must
limit participation in the Medicaid program to providers who
accept, as payment in full, the amounts paid by the agency plus any
deductible, coinsurance or copayment required by the plan to be
paid by the individual. . . .” 42 C.F.R. 447.15 (1996) (emphasis
added). Thus by accepting payment from Medicaid, intervenor
effectively released the injured employee from any associated
costs. Because intervenor could not hold the injured employee
liable for its attorneys' fees, we hold that intervenor cannot now
argue that payment of its attorneys' fees is either payment of the
injured employee's costs or is of some benefit to the injured
employee. Accordingly, we affirm the Commission's 3 July 1999
opinion and award as amended by its 14 June 1999 order reversing
the previous 7 August 1998 award of attorneys' fees to intervenor.
Affirmed. Judges GREENE and HORTON concur.
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