{ "id": 11913683, "name": "ROBERT E. TIMMONS, JR., Employee, Plaintiff v. NORTH CAROLINA DEPARMENT OF TRANSPORTATION, Employer; Self-insurer; Defendant", "name_abbreviation": "Timmons v. North Carolina Deparment of Transportation", "decision_date": "1996-08-06", "docket_number": "No. COA95-835", "first_page": "456", "last_page": "463", "citations": [ { "type": "official", "cite": "123 N.C. App. 456" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "74 ALR3d 854", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "449 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "117 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524468 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/117/0126-01" ] }, { "cite": "298 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562490 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0392-01" ] }, { "cite": "347 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "821" }, { "page": "818" } ], "opinion_index": 0 }, { "cite": "318 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738158 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0192-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1985, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "324 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "219", "parenthetical": "where employee suffered total loss of both legs, he was entitled under 97-31(17) to compensation for total and permanent disability in accordance with 97-29" } ], "opinion_index": 0 }, { "cite": "312 N.C. 538", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4751019 ], "year": 1985, "pin_cites": [ { "parenthetical": "where employee suffered total loss of both legs, he was entitled under 97-31(17) to compensation for total and permanent disability in accordance with 97-29" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0538-01" ] }, { "cite": "261 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "854" } ], "opinion_index": 0 }, { "cite": "299 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574165 ], "year": 1980, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0174-01" ] }, { "cite": "312 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "708", "parenthetical": "quoting Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980)" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526370 ], "year": 1984, "pin_cites": [ { "page": "343", "parenthetical": "quoting Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0341-01" ] } ], "analysis": { "cardinality": 668, "char_count": 17220, "ocr_confidence": 0.756, "pagerank": { "raw": 5.211255562232542e-07, "percentile": 0.9405857252681527 }, "sha256": "7dcf56c3e569c133858ef2b1be25662632014a77eaaf7a483a2d9076f0c14ffc", "simhash": "1:2c01e78e1c9bd08d", "word_count": 2668 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge SMITH concur." ], "parties": [ "ROBERT E. TIMMONS, JR., Employee, Plaintiff v. NORTH CAROLINA DEPARMENT OF TRANSPORTATION, Employer; Self-insurer; Defendant" ], "opinions": [ { "text": "MARTIN, John C., Judge.\nIn July 1980, plaintiff sustained a compensable injury in the course and scope of his employment with defendant, as a result of which he was rendered paraplegic. At the time of his injury, plaintiff was 19 years old and was earning $135.20 per week. Pursuant to a Form 21 agreement approved by the Industrial Commission on 6 August 1980, defendant has paid plaintiff workers\u2019 compensation benefits for total disability in the amount of $90.14 per week, as well as medical expenses related to his injury, from the time of the accident to the present. In addition, after plaintiff\u2019s injury, defendant paid approximately $40,250.00 for modifications to plaintiff\u2019s parents\u2019 home to make it accessible for his use.\nIn 1982, plaintiff moved from his parents\u2019 home to a handicapped accessible apartment where he lived for approximately eight and a half years. In 1989, after a substantial increase in his rent, plaintiff moved back to his parents\u2019 home and lived there until January 1991. Apparently desiring additional privacy, however, plaintiff moved to an apartment which is not adapted to accommodate his disability.\nOn 28 October 1989, plaintiff returned to work as a full-time permanent employee of defendant and, at the time of the hearing, was earning $17,768.00 per year. Plaintiff also works part-time conducting exercise classes at a health spa.\nOn 15 June 1992, plaintiff filed a motion requesting the Industrial Commission to order a life care plan to be prepared at defendant\u2019s expense to enable plaintiff to receive handicapped housing and rehabilitation services. Plaintiff had acquired land and sought financial assistance from defendant in constructing a handicapped accessible home. Defendant opposed the motion and requested a hearing to determine whether it was obligated to finance such a plan and to provide additional handicapped housing accommodations for plaintiff. Defendant also sought to terminate plaintiffs total disability benefits since plaintiff had returned to full-time employment.\nThe deputy commissioner entered an opinion and award in which he denied defendant\u2019s motion to terminate plaintiffs disability benefits, and allowed in part and denied in part the benefits sought by plaintiff. Both parties appealed. The Full Commission adopted the deputy commissioner\u2019s findings and concluded plaintiff was entitled to continuing disability benefits, was not entitled to be provided with a life care plan, but was entitled to financial assistance in constructing a handicapped accessible residence. The Commission: (1) denied defendant\u2019s motion to terminate plaintiff\u2019s disability benefits; (2) ordered defendant to pay, pursuant to G.S. \u00a7 97-25, the expense of rendering the home which plaintiff plans to build accessible to his disabilities; (3) referred to mediation any disputes arising from the construction; (4) ordered defendant to pay plaintiff\u2019s attorney fees; and (5) ordered defendant to pay the fees of Dr. Cynthia Wilhelm, a medical rehabilitation expert who drafted a life care plan for plaintiff and provided expert testimony. Defendant appeals.\nI.\nDefendant employer assigns error to the Commission\u2019s order denying its motion to terminate plaintiff\u2019s compensation benefits for temporary total disability. Defendant argues that since plaintiff has returned to full-time employment, he is no longer entitled to on-going benefits. We disagree.\nAt the time of plaintiff\u2019s injury, G.S. \u00a7 97-31 provided in relevant part:\nIn cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation ... to wit:\n(17) The loss of. . . both legs . . . shall constitute total and permanent disability, to be compensated according to the provisions of G.S. 97-29. . . . (19) Total loss of use of a member . . . shall be considered as equivalent to the loss of such member ....\n(emphasis added). At that time, G.S. \u00a7 97-29 provided in pertinent part:\nIn cases of total and permanent disability, compensation, including reasonable and necessary nursing services, medicines, sick travel, medical, hospital, and other treatment or care of rehabilitative services shall be paid for by the employer during the lifetime of the injured employee.\n(emphasis added).\n\u201cWhen the language of a statute is clear and without ambiguity, \u2018there is no room for judicial construction,\u2019 and the statute must be given effect in accordance with its plain and definite meaning.\u201d 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 this instance, the language of the Act is clear: G.S. \u00a7 97-31(17) provides that the loss of both legs constitutes total and permanent disability to be compensated according to G.S. \u00a7 97-29, and G.S. \u00a7 97-29 provides for lifetime benefits to the injured employee. See Fleming v. K-Mart Corp., 312 N.C. 538, 547 324 S.E.2d 214, 219 (1985) (where employee suffered total loss of both legs, he was entitled under 97-31(17) to compensation for total and permanent disability in accordance with 97-29). The Commission correctly denied defendant\u2019s motion to terminate plaintiff\u2019s workers\u2019 compensation benefits.\nII.\nBoth parties assign error to the Commission\u2019s order requiring that defendant \u201cpay the expense and cost of rendering the home which plaintiff plans to build accessible to his disabilities.\u201d Defendant argues that it should not be required to bear any of the expense of making the residence accessible to plaintiff\u2019s handicap; by cross-assignment of error, plaintiff contends defendant should bear the entire cost of construction of a residence which would accommodate his disabilities. We affirm the opinion and award of the Commission in this regard.\nOn appellate review of an award of the Industrial Commission, the Commission\u2019s findings of fact are conclusive if supported by competent evidence; the legal conclusions drawn by the Commission from its findings of fact, however, are fully reviewable by the appellate courts. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). In summary, the Commission found that although, after plaintiffs injury, defendant had paid for modifications to his parents\u2019 residence in order to accommodate his disabilities, plaintiff has since become independent and self-reliant. In addition to working, he has begun to date and has friends over to visit. Plaintiff\u2019s requirements, and those of his parents, for privacy are jeopardized by his living at his parents\u2019 home. In light of the foregoing factors, the Commission found that plaintiff\u2019s needs had changed and the accommodations at his parents\u2019 home were no longer appropriate for him. Those findings are supported by competent evidence, most notably the assessment by Dr. Wilhelm, and are conclusive. The question before us is whether the Commission\u2019s finding that the accommodations at plaintiff\u2019s parents\u2019 home are no longer suitable support its conclusion that \u201cplaintiff is entitled to have defendant pay for adding to plaintiff\u2019s new home those accessories necessary to accommodate plaintiff\u2019s disabilities.\u201d\nAt the time of plaintiff\u2019s injury in 1980, G.S. \u00a7 97-25 required, in relevant part: \u201c[mjedical, 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.\u201d N.C. Gen. Stat. \u00a7 97-25 (1985) (emphasis added). 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\u2019s duty to provide \u201cother treatment or care\u201d as contained in G.S. \u00a7 97-29, was-sufficiently broad as to include the duty to provide handicapped accessible housing. Id. at 203-04, 347 S.E.2d at 821. In so holding, the Court noted the remedial purpose of the Workers\u2019 Compensation Act, and the liberal construction to be accorded its provisions. Id. at 199, 347 S.E.2d at 818. In our view, the words \u201cand other treatment\u201d contained in G.S. \u00a7 97-25 are susceptible of the same broad construction accorded the similar language of G.S. \u00a7 97-29 by the Supreme Court in Derebery, and we reject defendant\u2019s argument to the contrary.\nWe do not agree with plaintiff, however, that Derebery requires defendant to pay the entire cost of constructing his residence. As pointed out by Justice (later Chief Justice) Billings in her dissent in Derebery, the expense of housing is an ordinary necessity of life, to be paid from the statutory substitute for wages provided by the Workers\u2019 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 \u201cother treatment\u201d language of G.S. \u00a7 97-25, while the basic cost of acquisition or construction of the housing is not. Thus, we overrule both defendant\u2019s assignment of error and plaintiff\u2019s cross-assignment of error and affirm the Commission\u2019s order that defendant \u201cpay for adding to plaintiff\u2019s new home those accessories necessary to accommodate plaintiff\u2019s disabilities.\u201d\nWe reject also a related assignment of error by defendant that the Commission erred when it referred to mediation any \u201cdisputes which may arise with respect to the costs and building of the home contemplated by plaintiff in the event that same cannot be resolved between the parties.\u201d G.S. \u00a7 97-80(c) specifically authorizes the Commission to require parties to participate in mediation under rules adopted by it. Foreseeing that disputes might reasonably arise between the parties with respect to the construction of plaintiff\u2019s residence, and the expenses which might properly be charged to the respective parties, the Commission wisely required the parties to engage in a more expedient method of resolving such disputes than the necessity of scheduling hearings before a deputy which might prolong the construction process and increase the expense of construction.\nIII.\nFinally, defendant assigns error to those portions of the Commission\u2019s order requiring that it pay plaintiff\u2019s attorney\u2019s fees and taxing Dr. Wilhelm\u2019s charges as part of the costs. We address these claims in turn.\nG.S. \u00a7 97-88 provides:\nIf 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\u2019s fee to be determined by the Commission shall be paid by the insurer as a part of the bill of costs.\nAs a self-insurer, defendant is subject to the provisions of the statute. The decision of whether to award costs and attorney\u2019s fees is within the discretion of the Commission if the requirements of the statute are met. Taylor v. J.P. Stevens Co., 307 N.C. 392, 298 S.E.2d 681 (1983), Estes v. N.C. State University, 117 N.C. App. 126, 449 S.E.2d 762 (1994). Here, defendant appealed the deputy commissioner\u2019s award to the Full Commission, which affirmed the award. Thus, the requirements of the statute were satisfied and it was within the Commission\u2019s discretion to award plaintiff the costs, including attorney\u2019s fees. We discern no abuse of that discretion.\nThe Commission\u2019s order, however, is unclear with respect to its taxing of Dr. Wilhelm\u2019s charges as costs. Dr. Wilhelm prepared a \u201clife care plan\u201d for plaintiff and also provided deposition testimony as an expert witness. While it would be proper to tax Dr. Wilhelm\u2019s fees for her testimony as a part of the costs, the Commission\u2019s order does not so limit the charges taxed to defendant as costs. Plaintiff argues defendant should be required to pay the expense of the \u201clife care plan\u201d which Dr. Wilhelm prepared as a necessary medical expense for rehabilitative services under G.S. \u00a7 97-25. The Commission, however, made no award for the \u201clife care plan\u201d under G.S. \u00a7 97-25, and such an award could not be properly characterized as costs. Moreover, defendant correctly observes that the deputy commissioner concluded that plaintiff was not presently entitled to be provided with a life care plan, a conclusion from which plaintiff has not appealed. Because we are unable to discern the Commission\u2019s intent with respect to Dr. Wilhelm\u2019s charges, we remand the matter of costs to the Industrial Commission for clarification and such further orders with respect thereto as may be proper.\nAffirmed in part, remanded in part.\nChief Judge ARNOLD and Judge SMITH concur.", "type": "majority", "author": "MARTIN, John C., Judge." } ], "attorneys": [ "Folger and Folger, by Fred Folger, Jr., for plaintiff-appellee.", "Attorney General Michael F. Easley, by Assistant Attorney General D. Sigsbee Miller, for defendant-appellant." ], "corrections": "", "head_matter": "ROBERT E. TIMMONS, JR., Employee, Plaintiff v. NORTH CAROLINA DEPARMENT OF TRANSPORTATION, Employer; Self-insurer; Defendant\nNo. COA95-835\n(Filed 6 August 1996)\n1. Workers\u2019 Compensation \u00a7 230 (NCI4th)\u2014 paraplegic awarded permanent disability \u2014 return to full-time employment \u2014 benefits not terminated\nSince N.C.G.S. \u00a7 97-31(17) provides that the loss of both legs constitutes total and permanent disability to be compensated according to N.C.G.S. \u00a7 97-29, and that statute provides for lifetime benefits to the injured employee, the Industrial Commission correctly denied defendant\u2019s motion to terminate plaintiff\u2019s workers\u2019 compensation benefits made after plaintiff paraplegic returned to full-time employment.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 381, 382, 431.\n2. Workers\u2019 Compensation \u00a7 219 (NCI4th)\u2014 disabled employee \u2014 expenses to make home accessible \u2014 award proper\nThe Industrial Commission properly ordered that defendant \u201cpay for adding to plaintiff\u2019s new home those accessories necessary to accommodate plaintiff\u2019s disabilities\u201d rather than pay for construction of the entire house or pay nothing for making the home accessible to plaintiff\u2019s handicap since the expense of housing is an ordinary necessity of life, to be paid from the statutory substitute for wages provided by the Workers\u2019 Compensation Act, while costs of modifying such housing to accommodate one with extraordinary needs occasioned by a workplace injury is not an ordinary expense of life for which the statutory substitute wage is intended as compensation, and such extraordinary and unusual expenses are properly embraced in the \u201cother treatment\u201d language of N.C.G.S. \u00a7 97-25.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 443, 444.\n3. Workers\u2019 Compensation \u00a7 399 (NCI4th)\u2014 future disputes ordered to mediation \u2014 award proper\nThe Industrial Commission did not err in referring to mediation any \u201cdisputes which may arise with respect to the costs and building of the home contemplated by plaintiff,\u201d since N.C.G.S. \u00a7 97-80(c) specifically authorizes the Commission to require parties to participate in mediation under rules adopted by it, and, foreseeing that disputes might reasonably arise between the parties with respect to the construction of plaintiffs residence and the expenses which might properly be charged to the respective parties, the Commission wisely required the parties to engage in a more expedient method of resolving such disputes than the necessity of scheduling hearings before a deputy which might prolong the construction process and increase its expense.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 607, 608.\n4. Workers\u2019 Compensation \u00a7 471 (NCI4th)\u2014 attorney\u2019s fees as costs \u2014 award proper \u2014 medical rehabilitation expert\u2019s fees \u2014 order taxing as costs remanded\nThe Industrial Commission did not err in ordering defendant to pay plaintiffs attorney\u2019s fees where defendant appealed the award in favor of plaintiff to the Full Commission which affirmed the award, and the requirements of N.C.G.S. \u00a7 97-88 were thus satisfied; however, the Commission\u2019s order taxing as costs the charges of plaintiff\u2019s medical rehabilitation expert for preparing a \u201clife care plan\u201d for plaintiff and for providing deposition testimony as an expert witness must be remanded, since it would be proper to tax her fees for her testimony as a part of the costs, but not her fees to prepare the \u201clife care plan,\u201d and the Commission\u2019s order did not so limit the charges taxed to defendant as costs.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 722-726.\nWorkmen\u2019s compensation: Attorney\u2019s fee or other expenses of litigation incurred by employee in action against third party tortfeasor as charge against employer\u2019s distributive share. 74 ALR3d 854.\nAppeal by defendant from opinion and award of the North Carolina Industrial Commission entered 26 May 1995. Heard in the Court of Appeals 27 March 1996.\nFolger and Folger, by Fred Folger, Jr., for plaintiff-appellee.\nAttorney General Michael F. Easley, by Assistant Attorney General D. Sigsbee Miller, for defendant-appellant." }, "file_name": "0456-01", "first_page_order": 490, "last_page_order": 497 }