{ "id": 9496819, "name": "RICHARD PEARSON, Employee, Plaintiff v. C. P. BUCKNER STEEL ERECTION, Employer, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants, HEALTH CARE CENTER, INC., d/b/a CARY MANOR NURSING HOME, Intervenor", "name_abbreviation": "Pearson v. C. P. Buckner Steel Erection", "decision_date": "2000-08-01", "docket_number": "No. COA99-1082", "first_page": "394", "last_page": "402", "citations": [ { "type": "official", "cite": "139 N.C. App. 394" } ], "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": "42 U.S.C. \u00a7\u00a7 1396", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "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" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "486 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "\"1997 appeal\"" }, { "page": "728", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 745", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713224 ], "year": 1997, "pin_cites": [ { "parenthetical": "\"1997 appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0745-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "pin_cites": [ { "page": "752" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "498 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "823" }, { "page": "822-23" } ], "opinion_index": 0 }, { "cite": "348 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659767 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "246-47" }, { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0239-01" ] } ], "analysis": { "cardinality": 665, "char_count": 18655, "ocr_confidence": 0.76, "pagerank": { "raw": 3.460210283103947e-07, "percentile": 0.8806517291162534 }, "sha256": "1aeb956f0e07f550cb426c3e612c4f81de2d7fc2559aaa88fdc62a5e59b30d59", "simhash": "1:064145024ff87f55", "word_count": 2974 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and HORTON concur." ], "parties": [ "RICHARD PEARSON, Employee, Plaintiff v. C. P. BUCKNER STEEL ERECTION, Employer, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants, HEALTH CARE CENTER, INC., d/b/a CARY MANOR NURSING HOME, Intervenor" ], "opinions": [ { "text": "HUNTER, Judge.\nThe present appeal is the result of an opinion and award of the North Carolina Industrial Commission (\u201cCommission\u201d) 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 \u2014 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 (\u201cintervenor\u201d), appeals the two-member panel of the Commission\u2019s reversal of an award of attorneys\u2019 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. \u00a7 97-88. We disagree and affirm the Commission\u2019s opinion and award.\nBriefly, the facts relevant to the present appeal reveal that defendant-employer C.R Buckner Steel Erection and defendant-insurer Liberty Mutual Insurance Company (collectively \u201cdefendants\u201d), 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\u2019s fee schedule, and which also ordered defendants to pay intervenor $500.00 in attorneys\u2019 fees. In Pearson v. C. P. Buckner Steel Erection Co., 126 N.C. App. 745, 486 S.E.2d 723 (1997) (\u201c1997 appeal\u201d), this Court held that:\nAttorneys\u2019 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. \u00a7 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\u2019 fees to the plaintiff was improper.\nId. 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 (\u201c1998 appeal\u201d), stating,\nwe hold that the Commission\u2019s 19 December 1995 order directing defendants to pay intervenor and plaintiffs 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\u2019 compensation law of this State and that such law is not preempted by federal Medicaid law. We therefore reverse the Court of Appeals\u2019 holding that the Commission\u2019s 19 December 1995 order was in error. . . .\nPearson, 348 N.C. at 246-47, 498 S.E.2d at 823. However, the Supreme Court did not rule on the issue of attorneys\u2019 fees.\nOn 19 June 1998, intervenor petitioned for supplemental attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 97-88 for the additional time necessary to defend against defendants\u2019 1997 appeal to this Court, and intervenor\u2019s 1998 appeal to the Supreme Court which resulted in reinstatement of the Commission\u2019s 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\u2019s counsel spent in defending against defendants\u2019 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 Industrial Commission Chairman Howard Bunn on 31 August 1998, \u201cpending final resolution of Defendants\u2019 appeal.\u201d 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. \u00a7 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\u2019s motion to dismiss, reversing the 7 August 1998 order and its granting of $10,000.00 in attorneys\u2019 fees to intervenor, and denying intervenor\u2019s motion for additional attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 97-88.1.\nAlthough 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\u2019s position as to why it ruled as it did. (However, the amended opinion in no way altered any of the Commission\u2019s findings or conclusions of the original 3 June 1999 order.) Defendant requested that the Commission\u2019s 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:\nWhen the Order was filed, the Full Commission panel was not aware that Intervenor had filed notice of appeal two days earlier. Nevertheless, plaintiff\u2019s notice of appeal was filed before the Commission\u2019s 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\u2019s 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\u2019s Order.\nIn 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\u2019s 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\u2019s appeal to be from both of the Commission\u2019s 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.\nIntervenor 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\u2019s ruling in the 1998 appeal was res judicata with regard to attorneys\u2019 fees; (2) because defendants cannot collaterally attack a Full Commission decision; and (3) because three Commissioners are necessary to make up a panel.\nIntervenor first contends that once the Supreme Court ordered reinstatement of the 19 December 1995 order which awarded $500.00 in attorneys\u2019 fees to intervenor, intervenor\u2019s entitlement to attorneys\u2019 fees became the law of the case. We disagree. It is true that reinstatement of the 19 December 1995 order reinstated the $500.00 attorneys\u2019 fee awarded as of that date. However, the Supreme Court\u2019s ruling does not address the $10,000.00 attorneys\u2019 fee requested by inter-venor in the present appeal. In fact, the Supreme Court\u2019s ruling did not even address the attorneys\u2019 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.\nSecondly, intervenor argues that the two Commissioners who signed the 3 June 1999 opinion and award lacked jurisdiction to overturn Commissioner Bolch\u2019s 7 August 1998 \u201cOrder for Attorneys Fees Pursuant to G.S. 97-88.\u201d It is intervenor\u2019s contention that by appealing Commissioner Bolch\u2019s award of attorneys\u2019 fees to intervenor, defendants improperly collaterally attacked one Full Commission panel\u2019s order and requested review by another Full Commission panel. However, we note that intervenor continually suggests that Commissioner Bolch\u2019s order was simply a \u201csupplemental order\u201d in that it somehow expounded on the Supreme Court\u2019s ruling and taxed defendants with intervenor\u2019s attorneys\u2019 fees for the entire appellate process. We disagree.\nAs stated above, the Supreme Court\u2019s ruling reinstating the Commission\u2019s 19 December 1995 order did NOT address attorneys\u2019 fees at all. It neither addressed whether the fees were properly granted nor whether intervenor was, in fact, entitled to fees. Instead, the Court\u2019s focus was strictly on the merits of intervenor\u2019s argument that defendants should be required to pay the difference between what Medicaid had already paid intervenor and the amount inter-venor would be entitled to under the Industrial Commission\u2019s payment guidelines. Pearson, 348 N.C. 239, 246, 498 S.E.2d 818, 822-23. Thus, although intervenor was granted attorneys\u2019 fees in the order, intervenor is incorrect to assume \u2014 and we refuse to assume \u2014 that our Supreme Court intended to change the long-held statutory law which requires that any grant of attorneys\u2019 fees must benefit the injured employee. N.C. Gen. Stat. \u00a7 97-88.\nWe further note that intervenor did not even move the Commission for the attorneys\u2019 fees in question at present until after the Supreme Court\u2019s ruling. Thus, Commissioner Bolch\u2019s award of attorneys\u2019 fees, although clearly based on the fact that the Commission\u2019s order \u201cfiled December 19, 1995 . . . was ultimately affirmed by the Supreme Court of North Carolina,\u201d was not, as inter-venor contends, a \u201csupplemental order for the Full Commission,\u201d 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. \u00a7 97-88.\nThirdly, regarding intervenor\u2019s 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: \u201cCommissioner Christopher Scott, who was a member of the Full Commission panel which reviewed this case, was unavailable at the time of the filing of this Opinion and Award because of illness.\u201d Therefore, we overrule intervenor\u2019s argument.\nIn 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\u2019 fees. Again, we disagree.\nN.C. Gen. Stat. \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.\nN.C. Gen. Stat. \u00a7 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 \u201cclear 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)).\nIn its opinion and award filed 3 June 1999, Commissioner Sellers, writing for the panel, found in pertinent part that:\n5. Upon remand [from the Supreme Court] to the Industrial Commission, plaintiff and [intervenor] separately petitioned for attorney\u2019s fees taxed to defendants pursuant to N.C. Gen. Stat. \u00a7 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\u2019 fees] appears to be still pending before Commissioner Bolch.\n(Emphasis added.) Thus, because the plain language of N.C. Gen. Stat. \u00a7 97-88 is clear and unambiguous on its face, and because the evidence clearly supported a finding that plaintiffs and intervenor\u2019s attorneys\u2019 fees were separate and apart, the Commission specifically concluded as law that:\n2. N.C. Gen. Stat. \u00a7 97-88 endows the Industrial Commission with the authority to order an insurer to pay an injured employee reasonable attorney\u2019s fees. It does not empower the Commission to award attorney\u2019s fees to a medical provider or to an inter-venor in any manner or for any reason. Further, the statute expressly limits its purpose to reimbursing \u201cthe cost [of appellate review] to the injured employee.\u201dAs there is no evidence that the award of attorney\u2019s fees to the inter-venor in this case was made to satisfy \u201ccosts to the injured employee, \u201d the award contained in the 7 August 1998 Order ... is not proper under the Act.\n3. . . . Given the absence of statutory authority under N.C. Gen. Stat. \u00a7 97-88 for awarding fees to any party other than the \u201cinjured employee,\u201d defendants\u2019 application for review was reasonable; therefore, there is no basis upon which to award the intervenor with attorney\u2019s fees for the defense of the resulting review.\n(Emphasis added.)\nIn 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\u2019 fees as a result of intervenor\u2019s involvement in the case at bar. In fact, once intervenor accepted Medicaid as payment for the injured employee\u2019s medical care under Medicaid, Title XIX of the Social Security Act, 42 U.S.C. \u00a7\u00a7 1396-1396v (1994) and in conjunction with North Carolina\u2019s Medicaid program as set out in N.C. Gen. Stat. \u00a7\u00a7 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. \u201cA 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. . . .\u201d 42 C.F.R. 447.15 (1996) (emphasis added). Thus by accepting payment from Medicaid, inter-venor effectively released the injured employee from any associated costs. Because intervenor could not hold the injured employee liable for its attorneys\u2019 fees, we hold that intervenor cannot now argue that payment of its attorneys\u2019 fees is either payment of the injured employee\u2019s costs or is of some benefit to the injured employee. Accordingly, we affirm the Commission\u2019s 3 July 1999 opinion and award as amended by its 14 June 1999 order reversing the previous 7 August 1998 award of attorneys\u2019 fees to intervenor.\nAffirmed.\nJudges GREENE and HORTON concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "The Jemigan Law Firm, by N. Victor Farah and Leonard T. Jemigan, 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." ], "corrections": "", "head_matter": "RICHARD PEARSON, Employee, Plaintiff v. C. P. BUCKNER STEEL ERECTION, Employer, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants, HEALTH CARE CENTER, INC., d/b/a CARY MANOR NURSING HOME, Intervenor\nNo. COA99-1082\n(Filed 1 August 2000)\n1. Workers\u2019 Compensation\u2014 attorney fees \u2014 law of the case\nA Supreme Court reinstatement of an order in a workers\u2019 compensation case did not become the law of the case on inter-venor\u2019s entitlement to attorney fees where the Supreme Court\u2019s ruling did not address the additional attorney fee requested here or the fee awarded in the order.\n2. Workers\u2019 Compensation\u2014 attorney fees \u2014 appeal of order\u2014 not a collateral attack on earlier order\nAn 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\u2019s ruling and the order award was a new and separate order properly appealed to the Commission.\n3. Workers\u2019 Compensation\u2014 Industrial Commission panel\u2014 two signatures on opinion\nAlthough intervenor argued that two Commissioners cannot constitute a panel of the Industrial Commission for the decision of a workers\u2019 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.\n4. Workers\u2019 Compensation\u2014 attorney fees \u2014 care provider\u2014 Medicaid accepted \u2014 provider\u2019s fees not a benefit to employee\nThe Industrial Commission correctly concluded that inter-venor was not entitled to attorney fees in a workers\u2019 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. \u00a7 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\u2019s costs or is of some benefit to the injured employee.\nAppeal by intervenor from an opinion and award entered 3 June 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 May 2000.\nThe Jemigan Law Firm, by N. Victor Farah and Leonard T. Jemigan, Jr., for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P., by Jeffrey A. Doyle, for defendant-appellees.\nLore & McClearen, by R. James Lore, for intervenor-appellant." }, "file_name": "0394-01", "first_page_order": 426, "last_page_order": 434 }