{ "id": 11470308, "name": "ROBERT E. TIMMONS, JR., Employee, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Employer, Self-Insurer, Defendant", "name_abbreviation": "Timmons v. North Carolina Department of Transportation", "decision_date": "1998-09-15", "docket_number": "No. COA97-1230", "first_page": "745", "last_page": "751", "citations": [ { "type": "official", "cite": "130 N.C. App. 745" } ], "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": "336 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "409" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525263 ], "year": 1985, "pin_cites": [ { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0753-01" ] }, { "cite": "123 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "612-13" } ], "opinion_index": 0 }, { "cite": "256 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571678 ], "year": 1962, "pin_cites": [ { "page": "181-82" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0175-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "484 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139361 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0173-01" ] }, { "cite": "473 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "parenthetical": "Timmons I" }, { "page": "360" }, { "page": "359" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 456", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913683 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "Timmons I" }, { "page": "461-62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0456-01" ] } ], "analysis": { "cardinality": 588, "char_count": 14482, "ocr_confidence": 0.758, "pagerank": { "raw": 2.888385078597454e-07, "percentile": 0.8441189042295516 }, "sha256": "f75dcaee88f70e5eec5b6bdae04f1df890971fdd03d9004d1e6506adf3971e04", "simhash": "1:1281f7871aeb710d", "word_count": 2342 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C. and SMITH concur." ], "parties": [ "ROBERT E. TIMMONS, JR., Employee, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Employer, Self-Insurer, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nOn 3 July 1980, while plaintiff was working as an employee of defendant, he sustained an injury by accident that rendered him paraplegic. The injury was compensable under the North Carolina Workers\u2019 Compensation Act. Plaintiff and defendant entered into a Form 21 Agreement that was approved by the Industrial Commission on 6 August 1980. Pursuant to that agreement, defendant has paid plaintiff temporary total disability benefits at the rate of $90.14 per week from the date of plaintiff\u2019s injury. Defendant has also paid for all medical treatment required by plaintiff. Since 28 October 1989, plaintiff has worked forty hours per week as a permanent full-time employee of defendant. Plaintiff also works eight to twelve hours a week as an exercise instructor.\nJust after the accident, defendant paid for $40,000 in modifications to the home of plaintiffs parents to make it handicapped-accessible. In 1982, plaintiff moved out of his parents\u2019 home into a handicapped-accessible apartment. He moved back with his parents in 1991 when his rent payments became too high. In January 1993, plaintiff once again moved out of his parents\u2019 house into the apartment where he lives today. This apartment is not handicapped-accessible.\nOn 15 June 1992, while plaintiff was still living with his parents, plaintiff filed a \u201cMotion for Life Care Plan\u201d with the Industrial Commission. Plaintiff alleged that he was \u201cin need of additional care and rehabilitation including handicapped housing and rehabilitation services.\u201d Plaintiff expressed his desire \u201cto be as independent as possible and [to] secure independent living facilities.\u201d To these ends, plaintiff asked the Industrial Commission to appoint Dr. Cynthia Wilhelm \u201cto do a study of the plaintiffs condition and prepare a life-care plan for consideration by the Industrial Commission, all at the expense of the defendant.\u201d\nBy order entered 21 December 1992, the Deputy Commissioner found that plaintiff \u201cha[d] no definitive plan for handicapped housing and life care plan to present to the defendant for consideration.\u201d He ordered plaintiff to \u201cpresent the defendant with a definitive outline of the handicapped housing and life care plan being sought by the plaintiff to be provided by the defendant.\u201d Plaintiff eventually submitted the life care plan and moved that the Industrial Commission order defendant to pay Dr. Cynthia Wilhelm $3,274.30 as compensation for preparing it. Plaintiff argued that defendant should pay these costs because preparation of the plan \u201cwas necessary to enable plaintiff to receive all benefits to which plaintiff is entitled because of his injury . . . including benefits and handicap housing rehabilitation services [sic].\u201d\nThe Deputy Commissioner held a hearing and filed his opinion and award on 9 September 1994. It contains the following pertinent conclusion of law:\n3. . . . [I]n view of plaintiff\u2019s present stable physical condition which is good and enables him to perform his work and usual chores of life to care for himself[,] and that the provisions of Section 97-25 and 26 of the [Workers\u2019 Compensation] Act provide the plaintiff with future medical care and treatment for maintenance and emergencies which may arise in the future, he is not entitled, at this time, to be provided by the defendant with a life care plan.\n(emphasis added). The award by Deputy Commissioner Ford provided in relevant part:\n5. The defendant shall bear the costs including the charges of Dr. Cynthia L. Wilhelm.\nThe Deputy Commissioner\u2019s opinion and award also included the following paragraph. It appears under no heading, just before the Deputy Commissioner\u2019s \u201cFindings of Fact\u201d:\nSubsequent to the hearing on November 15, 1993, plaintiff moved that the defendant be assessed the cost of the life style plan [sic] prepared by Dr. Cynthia Wilhelm, which Motion is allowed.\n(emphasis added). Both parties appealed to the Full Commission.\nThe opinion and award of the Full Commission, filed 26 May 1995, stated,\nThe appealing party [sic] has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Opinion and Award, except with the modification of Conclusion of Law Number 2 and Award Number 2.\n(emphasis added). In point of fact, the Full Commission\u2019s opinion and award made no change to the Deputy Commissioner\u2019s Award Number 2. Furthermore, although purporting to do otherwise, the Commission modified not only Conclusion of Law No. 2, but also Conclusion of Law No. 3. The very significant modification to Conclusion No. 3 consisted of removing the word \u201cnot\u201d:\n3. ... [I] n view of plaintiff\u2019s present stable physical condition which is good and enables him to perform his work and usual chores of life to care for himself[,] and that the provisions of Section 97-25 and 26 of the [Workers\u2019 Compensation] Act provid\u00e9 the plaintiff with future medical care and treatment for maintenance and emergencies which may arise in the future, he is entitled, at this time, to be provided by the defendant with a life care plan.\n(emphasis added). In all other respects, the opinion and award of the Full Commission appears to be identical to that of the Deputy Commissioner. It provides, in Award No. 5, that \u201cdefendant shall bear the costs including the charges\u201d of Dr. Wilhelm.\nBoth parties appealed to this Court. In Timmons v. Department of Transportation, 123 N.C. App. 456, 473 S.E.2d 356 (1996) (Timmons I), aff\u2019d per curiam, 346 N.C. 173, 484 S.E.2d 551 (1997), we addressed defendant\u2019s contention that the Full Commission erroneously \u201ctax[ed] Dr. Wilhelm\u2019s charges as part of the costs\u201d:\nThe Commission\u2019s order ... 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 part of the costs, the Commission\u2019s order does not so limit the charges taxed to defendant as costs. Plaintiff argues that 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 properly be 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.\nId. at 463, 473 S.E.2d at 360. On remand from this Court, the Full Commission added to its opinion and award two new findings of fact: No. 9, which quoted numerous recommendations from Dr. Wilhelm\u2019s life care plan, and No. 10, which reads, \u201cThe Full Commission accepts this plan as a necessary life care plan as a result of the injuries suffered by plaintiff.\u201d The Commission also added Conclusion of Law No. 7: \u201cDefendant shall pay for the life care plan as recommended by Dr. Cynthia Wilhelm. N.C. Gen. Stat. \u00a7 97-25.\u201d Finally, the Commission added Award No. 6:\nDefendant shall pay for the life care plan as recommended by Dr. Cynthia Wilhelm. This cost will be a part of plaintiff\u2019s medical benefits. The fee for the services of Dr. Wilhelm are [sic] hereby taxed against defendant.\nDefendant appealed. Its first argument is that because, in Timmons I, this Court remanded the case to the Industrial Commission solely for clarification of the issue of Dr. Wilhelm\u2019s charges, the Commission\u2019s award of the life care plan on remand exceeded the scope of our mandate. We disagree. Our mandate in Timmons I instructed the Industrial Commission to clarify what it meant when it stated, \u201cThe defendant shall bear the costs including the charges of Dr. Cynthia L. Wilhelm.\u201d The Commission has followed our mandate. In its second Opinion and Award, the Commission clarified that it meant for defendant to \u201cpay for the life care plan as recommended by Dr. Cynthia Wilhelm\u201d as a \u201cpart of plaintiff\u2019s medical benefits.\u201d\nDefendant next argues that because plaintiff did not assign error to the Deputy Commissioner\u2019s conclusion that he was \u201cnot entitled ... to be provided by the defendant with a life care plan,\u201d the Full Commission had no authority to modify that conclusion. We disagree. The Full Commission may, in its discretion, review issues raised by the opinion and award of the Deputy Commissioner even if no error was assigned to those issues. See N.C.I.C. Rule 801; Brewer v. Trucking Co., 256 N.C. 175, 181-82, 123 S.E.2d 608, 612-13 (1962).\nFinally, defendant argues that section 97-25 of the Workers\u2019 Compensation Act does not authorize the Commission\u2019s Award No. 5, that \u201cdefendant shall pay for the life care plan as recommended by Dr. Cynthia Wilhelm\u201d as a \u201cpart of plaintiff\u2019s medical benefits,\u201d and that defendant pay the \u201cfee for the services of Dr. Wilhelm.\u201d\nThe law in effect at the time of plaintiff\u2019s injury required defendant-employer to provide \u201c[m]edicai, surgical, hospital, nursing services, . . . rehabilitative services, and other treatment including medical and surgical supplies as may reasonably be required to effect a cure or give relief.\u201d N.C. Gen. Stat. \u00a7 97-25 (1985). This statute established a threshold: that medical services or other treatment be reasonably necessary before an employer is ordered to pay for them.\nThe Commission found that the 22-page life care plan was \u201cnecessary ... as a result of the injuries suffered by plaintiff.\u201d Plaintiff has not directed us to any evidence that supports this finding, and we find none. Because there was no evidence that the life care plan was a medical service or other treatment reasonably necessary to effect a cure or give relief, the Commission erred when it ordered defendant to pay Dr. Wilhelm for the costs of its preparation.\nJudging from their briefs, both parties interpret the Commission\u2019s order that defendant \u201cpay for the life care plan\u201d as requiring not only that defendant pay for Dr. Wilhelm\u2019s preparation of the plan, but also that defendant pay for every item and service mentioned in the plan itself. If this is what the Commission intended, it erred.\nDr. Wilhelm herself testified that the plan was created without regard to what medical benefits defendant would be required by law to provide plaintiff. The plan reflects this. For example, it states that because plaintiff likely would have been a teacher or coach had he not been rendered paraplegic in 1980, \u201c [compensation for loss of wages between a teacher/coach job level and a Transportation Aid I from 1988 through 1993 is required. This difference is estimated at $32,910.00.\u201d Obviously, plaintiff could not recover such a sum as a medical benefit under G.S. 97-25 or any other provision of the Workers\u2019 Compensation Act. In addition, the plan states that \u201cMr. Timmons will require the purchase of an adaptive home to ensure his independence and maximal development as an adult.\u201d We have previously rejected the argument that G.S. 97-25 requires defendant to pay the entire cost of constructing plaintiff\u2019s residence. Timmons I, 123 N.C. App. at 461-62, 473 S.E.2d at 359. Further, the plan states that it is necessary that a specially-equipped van be purchased for plaintiff. Such a purchase cannot be charged to defendant under G.S. 97-25. See McDonald v. Brunswick Electric Membership Corp., 77 N.C. App. 753, 757, 336 S.E.2d 407, 409 (1985).\nAs these examples demonstrate, the Commission erred to the extent that its ordering defendant to \u201cpay for the life care plan\u201d was an order to provide plaintiff with each and every item and service mentioned therein. We reverse the opinion and award of the Full Commission filed 29 July 1997 insofar as it requires defendant to pay Dr. Wilhelm for preparation of the life care plan, and insofar as it requires defendant to pay for the items and services mentioned therein. In all other respects, the opinion and award is affirmed.\nAffirmed in part and reversed in part.\nJudges MARTIN, John C. and SMITH concur.", "type": "majority", "author": "LEWIS, 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 the State." ], "corrections": "", "head_matter": "ROBERT E. TIMMONS, JR., Employee, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Employer, Self-Insurer, Defendant\nNo. COA97-1230\n(Filed 15 September 1998)\n1. Workers\u2019 Compensation\u2014 life care plan \u2014 mandate on remand not exceeded\nThe Industrial Commission did not exceed the scope of the mandate on remand by ordering the employer to pay for a life care plan for an employee injured by an accident that rendered him a paraplegic.\n2. Workers\u2019 Compensation\u2014 issues raised by award \u2014 not assigned as error \u2014 review by Full Commission\nThe Full Commission had the discretion to review issues raised by the opinion and award of the Deputy Commissioner even though no error was assigned to those issues.\n3. Workers\u2019 Compensation\u2014 life care plan \u2014 cost of preparation \u2014 payment by employer \u2014 erroneous order\nThe Industrial Commission erred by ordering that defendant employer pay the cost of a medical rehabilitation expert\u2019s preparation of a life care plan for an employee who suffered a workplace accident which rendered him a paraplegic when there was no evidence that the life care plan was a medical service or other treatment reasonably necessary to effect a cure or give relief within the meaning of N.C.G.S. \u00a7 97-25 (1985).\n4. Workers\u2019 Compensation\u2014 life care plan \u2014 items not medical benefits\nThe Industrial Commission erred by ordering that defendant employer pay for every item and service mentioned in a life care plan prepared by a medical rehabilitation expert for an employee injured by an accident that rendered him a paraplegic where the expert testified that the plan was created without regard to what medical benefits defendant employer would be required by law to provide to the employee, and the plan included sums for items which do not constitute medical benefits under N.C.G.S. \u00a7 97-25.\nAppeal by defendant from opinion and award entered 29 July 1997 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 May 1998.\nFolger and Folger, by Fred Folger, Jr., for plaintiff-appellee.\nAttorney General Michael F. Easley, by Assistant Attorney General D. Sigsbee Miller, for the State." }, "file_name": "0745-01", "first_page_order": 777, "last_page_order": 783 }