{ "id": 11239780, "name": "BRUCE COLE, Employee/Plaintiff v. TRIANGLE BRICK, Employer/Defendant, and AETNA INSURANCE COMPANY, Carrier/Defendant", "name_abbreviation": "Cole v. Triangle Brick", "decision_date": "2000-01-18", "docket_number": "No. COA98-1188", "first_page": "401", "last_page": "407", "citations": [ { "type": "official", "cite": "136 N.C. App. 401" } ], "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": "357 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "672", "parenthetical": "payments not due and payable when made \"remain within the purview of [G.S. \u00a7 97-42, which section] ... cannot be read to exclude deduction of the payments\" made pursuant to a proper disability insurance plan" }, { "page": "672" } ], "opinion_index": 0 }, { "cite": "320 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728157 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "116", "parenthetical": "payments not due and payable when made \"remain within the purview of [G.S. \u00a7 97-42, which section] ... cannot be read to exclude deduction of the payments\" made pursuant to a proper disability insurance plan" }, { "page": "116-17" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0113-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "37" }, { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "384" }, { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "409 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "718" }, { "page": "717-18" }, { "page": "717", "parenthetical": "\"Foster recognized that the Commission must not make a complete denial of the credit to the employer\"" }, { "page": "718", "parenthetical": "emphasis added" }, { "page": "718" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 411", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521980 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "416" }, { "page": "416-17" }, { "page": "416-17" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0411-01" ] }, { "cite": "418 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1992, "pin_cites": [ { "page": "506" }, { "page": "507", "parenthetical": "second emphasis added" }, { "parenthetical": "emphasis added" }, { "page": "509" }, { "page": "509-10" }, { "page": "508" }, { "page": "506", "parenthetical": "Court of Appeals credit on \"week-for-week\" basis failed to take into account full measure of payments made to employee" } ], "opinion_index": 0 }, { "cite": "332 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505309 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "81-83" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0078-01" ] } ], "analysis": { "cardinality": 556, "char_count": 14027, "ocr_confidence": 0.754, "pagerank": { "raw": 5.8917261669790116e-08, "percentile": 0.3688340517149842 }, "sha256": "4f06f27efb1b5cd9f29bdfe8d35a469802b82f33c9fcd4b62d4278e433232b36", "simhash": "1:cdb7c7045579125e", "word_count": 2218 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and EDMUNDS concur." ], "parties": [ "BRUCE COLE, Employee/Plaintiff v. TRIANGLE BRICK, Employer/Defendant, and AETNA INSURANCE COMPANY, Carrier/Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendants appeal an Opinion and Award of the North Carolina Industrial Commission (the Commission) reducing by twenty-five percent defendants\u2019 credit for payments made under a disability insurance policy fully funded by defendant Triangle Brick (Triangle). We affirm the Commission.\nPertinent facts and procedural history include the following: Plaintiff Bruce Cole\u2019s \u201chistory of intermittent lower back problems\u201d was aggravated by the demands of his position with Triangle. While working, plaintiff reinjured his lower back 25 November 1994 and 31 March 1995, and subsequently filed a workers\u2019 compensation claim. During pendency of the claim, plaintiff received long-term disability payments from Paul Revere Insurance Company (the Revere payments) under a policy fully funded by Triangle (the Revere policy) from 31 March 1995 until 1 April 1997.\nPlaintiff\u2019s claim was disputed by defendant Aetna Insurance Company, Triangle\u2019s insurer. Following a 25 September 1996 hearing, the Deputy Commissioner issued an Opinion and Award generally favorable to plaintiff on 22 April 1997. The case was subsequently reviewed on appeal by the Full Commission which entered a modified Opinion and Award 20 April 1998. The Commission in the main affirmed the Deputy Commissioner\u2019s earlier decision, but modified portions thereof related to awarding of a credit to defendants and of counsel fees to plaintiff.\nIn its Opinion and Award, the Commission concluded as a matter of law that:\n3. Defendant-employer shall receive a credit for the private, fully employer-funded benefits paid to plaintiff through Paul Revere Insurance Company, less twenty-five percent attorneys fees to be paid to the [plaintiff\u2019s counsel] for collecting reimbursement of the same from the worker\u2019s compensation carrier.\nThe Commission thereupon ordered:\n2. Plaintiff\u2019s request that attorneys fees be calculated on the total award and allowing the defendants a credit for payments made after March 31, 1995 through a fully employer-funded private disability policy, less a twenty-five percent attorney\u2019s fee to be paid to [plaintiff\u2019s counsel] ... is HEREBY ALLOWED.\n3. Defendant-employer shall receive a credit for the fully employer-funded private disability benefits paid to plaintiff, less a twenty-five percent attorney\u2019s fee to be paid to [plaintiff\u2019s counsel] .... The weekly difference between what was paid to plaintiff and what was owed to plaintiff of $84.00 a week shall be paid to plaintiff in a lump sum subject to the attorneys fees approved below.\n4. A reasonable attorney\u2019s fee of twenty-five percent of the total compensation awarded to plaintiff after March 31, 1995 ... is approved for plaintiffs counsel and shall be paid as follows: twenty-five percent of the dollar for dollar credit allowed the defendant from and after March 31, 1995 shall be paid to the plaintiffs counsel for so long as the defendants claim a credit for benefits paid the plaintiff from a fully employer-funded private disability insurance policy; thereafter, twenty-five percent of any compensation paid by the workers\u2019 compensation carrier to the plaintiff shall be deducted and paid directly to counsel for the plaintiff.\nDefendants timely appealed, assigning error to the\nFull Commission\u2019s Conclusions of Law 3 and Awards 2, 3, and 4 on the grounds that the reduction of defendants\u2019 credit by 25% to provide plaintiff\u2019s counsel additional fees is not supported by law.\nN.C.G.S. \u00a7 97-42 (Supp. 1998) governs allocation of credit for payments made under private disability plans such as the Revere policy.\nPayments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this Article were not due and payable when made, may, subject to the approval of the Commission be deducted from the amount to be paid as compensation. . ..\nG.S. \u00a7 97-42.\nDefendants cite Evans v. AT&T Technologies, 332 N.C. 78, 418 S.E.2d 503 (1992) as precluding reduction by the Commission of defendants\u2019 credit for the Revere payments. However, we believe the instant case is controlled by our decision in Church v. Baxter Travenol Laboratories, 104 N.C. App. 411, 409 S.E.2d 715 (1991). As in the case sub judice, the Commission in Church credited the employer for amounts paid the employee under a disability insurance plan, but reduced that credit by twenty-five percent \u201cto fund [plaintiff\u2019s] attorney\u2019s fees.\u201d Id. at 416, 409 S.E.2d at 718. In upholding the Commission, the Court noted that G.S. \u00a7 97-42\ndictates that any payments made by an employer to the injured employee during the period of her disability which were not due and payable when made, may, subject to the approval of the Industrial Commission, be deducted from the amount to be paid as workers\u2019 compensation. . . .\nThe Commission\u2019s award in its discretion of a 75% credit to defendant for payments made through its private insurer and the award of the remaining 25% to plaintiff to fund attorney\u2019s fees based upon the full workers\u2019 compensation award is well within the Commission\u2019s discretionary authority. . . .\nId. at 416, 409 S.E.2d at 717-18.\nWhere a panel of this Court \u201chas decided the same issue, albeit in a different case, a subsequent panel is bound by that precedent, unless it has been overturned by a higher court.\u201d In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Since the identical issue, i.e., reduction of defendants\u2019 credit by 25% to provide counsel fees, is presented herein, we are bound by Church unless that decision has been overruled.\nIn that regard, defendants maintain that the decision of our Supreme Court in Evans implicitly overruled Church. We conclude otherwise.\nAt issue, inter alia, in Evans was the method of calculating an employer\u2019s credit for payments made to an employee under a disability plan, the employer claiming \u201cdollar-for-dollar credit\u201d and the employee a \u201cweek-for-week credit.\u201d Evans, 332 N.C. at 81-83, 418 S.E.2d at 506. The Court adopted the former approach, holding that \u201call payments made by an employer on account of its employee\u2019s disability,\u201d not due and payable within the meaning of G.S. \u00a7 97-42 when made, \u201cmay be deducted from the employee\u2019s workers\u2019 compensation award.\u201d Id. at 83, 418 S.E.2d at 507 (second emphasis added).\nThe discretionary nature of the credit was highlighted throughout the opinion: \u201csubject to approval by the Industrial Commission,\u201d payments \u201cnot due and payable when made may be deducted from the employee\u2019s workers\u2019 compensation award-.\u201d Id. (emphasis added); see also id. at 86, 418 S.E.2d at 509 (\u201c[w]e conclude that the ordinary meaning of the language of [G.S. \u00a7 97-42] allows an employer, subject to Commission approval, to receive a full dollar-for-dollar credit\u201d) (emphasis added); id. at 88, 418 S.E.2d at 509-10 (\u201cthe statute must be interpreted to mean that the amount of the deduction to which an employer, subject to the approval of the Commission, is entitled under [G.S. \u00a7 97-42] is the amount of the gross before-tax payments\u201d) (emphasis added).\nAccordingly, Evans stands for the proposition that all payments by employers to employees under a disability insurance policy, not due and payable when made, qualify for credit to the employer under G.S. \u00a7 97-42; however, the full amount of credit may be reduced in the discretion of the Commission. See id. at 85, 418 S.E.2d at 508 (\u201csubject to the Commission\u2019s approval, employers [must receive full] credit under [G.S. \u00a7 97-42] for all payments made under a voluntary sickness and accident disability plan ... so long as such payments were not \u2018due and payable when made\u2019 \u201d); see also Foster v. Western-Electric Co., 320 N.C. 113, 116, 357 S.E.2d 670, 672 (1987) (payments not due and payable when made \u201cremain within the purview of [G.S. \u00a7 97-42, which section] ... cannot be read to exclude deduction of the payments\u201d made pursuant to a proper disability insurance plan); and Church, 104 N.C. App. at 416, 409 S.E.2d at 717 (\u201cFoster recognized that the Commission must not make a complete denial of the credit to the employer\u201d).\nIn both Church and the case sub judice, the Commission acknowledged the full extent of the employer\u2019s payments under a disability insurance plan, but elected, in its discretion, to reduce the allowable credit in order to provide plaintiff an award of counsel fees. By contrast, in Evans and Foster, also relied upon by defendants, awards were reversed which failed to recognize the full extent of payments made under a disability plan. See Evans, 332 N.C. at 83, 418 S.E.2d at 506 (Court of Appeals credit on \u201cweek-for-week\u201d basis failed to take into account full measure of payments made to employee); Foster, 320 N.C. at 116-17, 357 S.E.2d at 672 (Commission and Court of Appeals misinterpreted law by excluding payments not due and payable when made from eligibility for credit under G.S. \u00a7 97-42). Church therefore has not been overruled by Evans and this Court is bound by its precedent. Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37.\nHowever, defendants contend that \u201c[e]ven if Church is controlling . . . the Full Commission abused its discretion\u201d by modifying the Deputy Commissioner\u2019s original award, thereby further \u201creducing the defendants\u2019 credit.\u201d The Deputy Commissioner based his award of attorney\u2019s fees on only part of plaintiff\u2019s total workers\u2019 compensation award, while the Full Commission granted \u201c[p]laintiff\u2019s request that attorneys fees be calculated on the total award.\u201d We perceive no abuse of discretion by the Commission.\nIn Church, this Court observed that\n[t]he Commission\u2019s award in its discretion of a 75% credit to defendant for payments made through its private insurer and the award of the remaining 25% to plaintiff to fund attorney\u2019s fees based upon the full workers\u2019 compensation award is well within the Commission\u2019s discretionary authority . . . and the award was within the Commission\u2019s authority to approve fee payments pursuant to [N.C.G.S. \u00a7 97-90(c) (Supp. 1998)].\nChurch, 104 N.C. App. at 416-17, 409 S.E.2d at 718 (emphasis added).\nG.S. \u00a7 97-90(c) states that\n[i]f an attorney has an agreement for fee or compensation under this Article, he shall file a copy or memorandum thereof with the . . . Commission prior to the conclusion of the hearing. If the agreement is not considered unreasonable, the . . . Commission shall approve it at the time of rendering decision.\nThe record on appeal in the instant case contains no copy of a fee award filed with the Commission. However, the Commission\u2019s Opinion and Award provides that \u201c[plaintiff\u2019s request that attorneys fees be calculated [as twenty-five percent of] the total award ... is HEREBY ALLOWED\u201d (emphasis added), thus suggesting approval of a fee agreement was indeed sought from the Commission.\nFurther, the Opinion and Award also directs that a \u201creasonable attorney\u2019s fee of twenty-five percent of the total compensation awarded to plaintiff ... is approved\u201d (emphasis added), indicating the Commission determined a fee agreement for twenty-five percent of the total award was \u201cnot . . . unreasonable\u201d pursuant to G.S. \u00a7 97-90(c). As in Church, \u201cthe award was within the Commission\u2019s authority to approve fee payments pursuant to G.S. [\u00a7] 97-90(c),\u201d Church, 104 N.C. App. at 416-17, 409 S.E.2d at 718, and did not constitute an abuse of discretion.\nFinally, we decline to address several issues raised by the plaintiff in his appellate brief that were neither assigned as cross-assignments of error nor raised in the proceedings below. See N.C.R. App. P. 10(a),(d) and 28(c) (scope of appellate review limited \u201cto a consideration of those assignments of error set out in the record on appeal;\u201d without taking an appeal, \u201cappellee may cross-assign as error any action or omission of the trial court . . . properly preserved for appellate review;\u201d without taking an appeal, \u201cappellee may present for review, by stating them in his brief, any questions raised by cross-assignments of error under Rule 10(d)\u201d).\nAffirmed.\nJudges WYNN and EDMUNDS concur.\n. G.S. \u00a7 97-42 was amended effective 1 September 1994 and applicable to all claims pending on or filed after that date. 1993 N.C. Sess. Laws (Reg. Sess., 1994) ch. 579, \u00a7\u00a7 3.7, 11.1. No amendments have been enacted since.\n. G.S. \u00a7 97-90(c) was amended effective 5 July 1994. 1993 N.C. Sess. Laws (Reg. Sess., 1994) ch. 679, \u00a7\u00a7\u20199.1, 11.1. No subsequent amendments have been enacted.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Lore & McClearen, by R. Edwin McClearen, for plaintiff-appellee.", "Yates, McLamb & Weyher, L.L.P., by Virginia G. Adams, for defendants-appellants." ], "corrections": "", "head_matter": "BRUCE COLE, Employee/Plaintiff v. TRIANGLE BRICK, Employer/Defendant, and AETNA INSURANCE COMPANY, Carrier/Defendant\nNo. COA98-1188\n(Filed 18 January 2000)\n1. Workers\u2019 Compensation\u2014 employer credit \u2014 private disability insurance policy \u2014 reduction for attorney fees\nThe Industrial Commission did not abuse its discretion in a workers\u2019 compensation case by reducing defendant-employer\u2019s credit by twenty-five percent for payments made under a private disability insurance policy fully funded by defendant Triangle Brick in order to provide plaintiff an award of attorney fees because a previous panel of the Court of Appeals has already upheld this same issue in a different case and subsequent panels are bound by that precedent since it has not been overturned by a higher court.\n2. Workers\u2019 Compensation\u2014 attorney fees \u2014 amount\u2014discretion of Commission\nThe Industrial Commission did not abuse its discretion by modifying the deputy commissioner\u2019s original award of attorney fees based on only part of plaintiff\u2019s total workers\u2019 compensation award, while the Full Commission granted plaintiff\u2019s request that attorney fees be calculated on the total award, because the award was within the Full Commission\u2019s authority to approve fee payments pursuant to N.C.G.S. \u00a7 97-90(c).\nAppeal by defendants from Opinion and Award of the North Carolina Industrial Commission filed 20 April 1998. Heard in the Court of Appeals 19 August 1999.\nLore & McClearen, by R. Edwin McClearen, for plaintiff-appellee.\nYates, McLamb & Weyher, L.L.P., by Virginia G. Adams, for defendants-appellants." }, "file_name": "0401-01", "first_page_order": 435, "last_page_order": 441 }