{ "id": 8470710, "name": "JAMES CARNELL WALKER, JR., Plaintiff-Appellee v. PENN NATIONAL SECURITY INSURANCE COMPANY, Defendant-Appellant", "name_abbreviation": "Walker v. Penn National Security Insurance Co.", "decision_date": "2005-02-15", "docket_number": "No. COA04-119", "first_page": "555", "last_page": "561", "citations": [ { "type": "official", "cite": "168 N.C. App. 555" } ], "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": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1985, "opinion_index": 0 }, { "cite": "477 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "137" } ], "opinion_index": 0 }, { "cite": "344 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867530, 867637, 867578, 867644, 867710 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0629-03", "/nc/344/0629-04", "/nc/344/0629-05", "/nc/344/0629-01", "/nc/344/0629-02" ] }, { "cite": "472 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "123 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912507 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0200-01" ] }, { "cite": "398 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "918" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527362 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/101/0135-01" ] }, { "cite": "401 S.E.2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "holding that, without transcripts, depositions, or other necessary documents \"it is presumed that the findings of fact are supported by competent evidence, and [the findings of fact] are therefore conclusive on appeal\"" } ], "opinion_index": 0 }, { "cite": "328 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544500 ], "year": 1991, "pin_cites": [ { "parenthetical": "holding that, without transcripts, depositions, or other necessary documents \"it is presumed that the findings of fact are supported by competent evidence, and [the findings of fact] are therefore conclusive on appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0327-01" ] }, { "cite": "394 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526385 ], "year": 1990, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0119-01" ] }, { "cite": "233 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "\"The rule is well established that when the evidence is not included in the record, it will be assumed that there was sufficient evidence to support the findings by the trial court.\"" } ], "opinion_index": 0 }, { "cite": "292 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568579, 8568676, 8568622, 8568499, 8568541 ], "year": 1977, "pin_cites": [ { "parenthetical": "\"The rule is well established that when the evidence is not included in the record, it will be assumed that there was sufficient evidence to support the findings by the trial court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0265-03", "/nc/292/0265-05", "/nc/292/0265-04", "/nc/292/0265-01", "/nc/292/0265-02" ] }, { "cite": "230 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "562" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 634", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551739 ], "year": 1976, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0634-01" ] }, { "cite": "312 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403756, 2395921, 2403313, 2394261, 2401497 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0308-03", "/nc/310/0308-01", "/nc/310/0308-04", "/nc/310/0308-05", "/nc/310/0308-02" ] }, { "cite": "308 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "336" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527561 ], "year": 1983, "pin_cites": [ { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0695-01" ] }, { "cite": "598 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "245", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8995856 ], "year": 2004, "pin_cites": [ { "page": "112", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0100-01" ] }, { "cite": "467 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "342 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795904, 796097, 796003, 795940, 796060 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0657-01", "/nc/342/0657-05", "/nc/342/0657-04", "/nc/342/0657-03", "/nc/342/0657-02" ] }, { "cite": "464 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "67" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 559", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916760 ], "year": 1995, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0559-01" ] }, { "cite": "577 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "308-09", "parenthetical": "citing Miesch v. Ocean Dunes Homeowners Assn., 120 N.C. App. 559, 562, 464 S.E.2d 64, 67 (1995), disc. review denied, 342 N.C. 657, 467 S.E.2d 717 (1996)" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 343", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190595 ], "year": 2003, "pin_cites": [ { "page": "346-47", "parenthetical": "citing Miesch v. Ocean Dunes Homeowners Assn., 120 N.C. App. 559, 562, 464 S.E.2d 64, 67 (1995), disc. review denied, 342 N.C. 657, 467 S.E.2d 717 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0343-01" ] }, { "cite": "281 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573123, 8573162, 8573104, 8573175, 8573144 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0315-02", "/nc/303/0315-04", "/nc/303/0315-01", "/nc/303/0315-05", "/nc/303/0315-03" ] }, { "cite": "277 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "475" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643753 ], "year": 1981, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0654-01" ] }, { "cite": "507 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "68" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198835 ], "year": 1998, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0267-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-258", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "603 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2004, "pin_cites": [ { "page": "856" }, { "page": "856-57" }, { "page": "856" }, { "page": "856" }, { "page": "856" }, { "page": "857" }, { "page": "856" }, { "page": "856" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 740", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413824 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "741" }, { "page": "742" }, { "page": "742" }, { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0740-01" ] }, { "cite": "583 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "421" }, { "page": "409" }, { "page": "421" }, { "page": "409" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 416", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956491 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/159/0416-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(e)" }, { "page": "(b)(4)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 638, "char_count": 15735, "ocr_confidence": 0.735, "pagerank": { "raw": 1.3237419350615073e-07, "percentile": 0.6273128278907381 }, "sha256": "d075700f2d558eeea55eaa4f13355fe85a05d537263973ca0a4974036e433a0e", "simhash": "1:03ebd0a628da9856", "word_count": 2489 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and ELMORE concur." ], "parties": [ "JAMES CARNELL WALKER, JR., Plaintiff-Appellee v. PENN NATIONAL SECURITY INSURANCE COMPANY, Defendant-Appellant" ], "opinions": [ { "text": "McGEE, Judge.\nJames Camell Walker, Jr. (plaintiff) was injured in a motor vehicle collision on 1 August 2000. The accident was caused by the negligence of Troy Walker. At the time of the accident, plaintiff was working in the scope and course of his employment and operating a vehicle owned and insured by his employer, SIA Group-Seashore (SIA).\nTroy Walker had liability insurance coverage with Shelby National Insurance Company (the liability carrier). The liability insurance coverage limit was $30,000 per person and $60,000 per accident. The vehicle in which plaintiff was injured was also covered by an underinsured motorist (UIM) policy with Penn National Security Insurance Company (defendant). The UIM policy coverage limit was $1,000,000.\nPlaintiff recovered the full $30,000 allowable from the liability carrier. The workers\u2019 compensation carrier for plaintiff\u2019s employer also paid a total of $81,948.37, as follows: $24,201.54 for plaintiff\u2019s medical expenses, $51,547.88 to plaintiff as compensation, and $6,198.95 to Hoover Rehabilitation. Pursuant to a clincher agreement, the workers\u2019 compensation carrier asserted a lien in the amount of $35,000 on any recovery plaintiff received from third parties.\nPlaintiff and defendant submitted the issue of the value of plaintiff\u2019s personal injury claim to arbitration on 2 October 2002. The arbitrator found that the value of plaintiff\u2019s personal injury claim was $129,524. The parties thereafter agreed that the award should be modified to $126,874. The arbitrator did not resolve coverage issues or amounts to be credited.\nFollowing the arbitration, plaintiff and defendant were unable to agree on the amount payable by defendant under the UIM policy. Specifically, the parties were unable to resolve how the 1999 amendment to the UIM statute, N.C. Gen. Stat. \u00a7 20-279.21(e) (2003), would affect the relationship between the award amount and the workers\u2019 compensation lien, thereby determining the amount payable by defendant. Defendant contended that the statute required that the arbitration award be offset by plaintiff\u2019s recovery from the workers\u2019 compensation carrier.\nPlaintiff filed a complaint for a declaratory judgment on 2 April 2003, asking the trial court to declare the rights and liabilities of the parties and to declare that defendant pay plaintiff $96,874: the difference between the arbitration award and the $30,000 recovered from the liability carrier. Defendant\u2019s answer asked that the trial court require defendant to pay plaintiff an amount not greater than $50,874. Defendant calculated this amount by subtracting the sum of $30,000 recovered from the liability carrier and $46,000 workers\u2019 compensation benefits from the $126,874 total value of plaintiff\u2019s injury.\nWhile the declaratory judgment action was pending in the trial court, this Court, in Austin v. Midgett (Austin I), 159 N.C. App. 416, 583 S.E.2d 405 (2003), resolved the confusion surrounding the 1999 amendment to the UIM statute. We held that the 1999 amendment \u201crequires UIM carriers to insure the amount of the employer\u2019s workers\u2019 compensation lien on UIM proceeds received by the employee in addition to the damages uncompensated by workers\u2019 compensation benefits.\u201d Id. at 421, 583 S.E.2d at 409. As a result, a UIM carrier is entitled to a credit for the amount of workers\u2019 compensation benefits that are not subject to a workers\u2019 compensation lien. Id. at 421, 583 S.E.2d at 409. However, our Court did not consider the amount paid by the liability carrier and did not credit the UIM carrier with this amount.\nIn accordance with our holding in Austin I, the trial court credited defendant with the amount paid by the workers\u2019 compensation carrier, less the amount of the workers\u2019 compensation lien. However, the trial court reduced the amount of workers\u2019 compensation benefits by $6,198.95, the amount paid to Hoover Rehabilitation. In addition, under the guidance from Austin I, the trial court did not credit defendant with the $30,000 plaintiff received from the liability carrier. The resulting judgment ordered defendant to pay plaintiff $86,124.58, plus interest.\nFollowing the trial court\u2019s declaratory judgment, this Court granted a petition for rehearing in Austin I. We subsequently clarified the Austin I holding in Austin v. Midgett (Austin II), 166 N.C. App. 740, 603 S.E.2d 855 (2004). In Austin II, we held that Austin I resulted in an incorrect computation of the amount the UIM carrier owed to the plaintiff. Austin II, 166 N.C. App. at 741, 603 S.E.2d at 856. Our Court determined that, in order to avoid a windfall to the plaintiff, the UIM carrier was entitled to a credit for payments made by the liability carrier. Id. at 742, 603 S.E.2d at 856-57.\nOur Court also outlined a two-step process for determining the amount due to a plaintiff from an UIM carrier. Id. at 741-42, 603 S.E.2d at 856. First, the limit of the UIM coverage is determined by subtracting the amount paid by the liability carrier from the UIM policy limit. Id. at 741, 603 S.E.2d at 856; see also N.C. Gen. Stat. \u00a7 20-279.21(b)(4) (2003). Second, the amount a plaintiff is entitled to recover from the UIM carrier must be determined. Austin II, 166 N.C. App. at 742, 603 S.E.2d at 856. This figure is calculated by subtracting from the total value of the plaintiffs loss, the amount of workers\u2019 compensation benefits (not including the amount of the workers\u2019 compensation lien) and the amount received from the liability carrier. Id. at 743, 603 S.E.2d at 857.\nDefendant first assigns error to the trial court\u2019s failure to credit defendant with the amount plaintiff received from the liability carrier. Defendant argues that by failing to credit defendant with this amount, plaintiff has received a windfall and a net recovery in excess of his actual damages. We agree. Under Austin II, a UIM carrier is entitled to a credit for payments made by the liability carrier. Austin II, 166 N.C. App. at 742, 603 S.E.2d at 856. Therefore, we hold that the trial court erred in failing to credit defendant with the $30,000 paid by the liability carrier.\nDefendant next assigns error to the trial court\u2019s calculation of the amount of benefits plaintiff received from the workers\u2019 compensation carrier. Defendant argues that the trial court erred by excluding the costs for Hoover Rehabilitation\u2019s services from the total amount of workers\u2019 compensation benefits plaintiff received.\nThe trial court\u2019s order contains the following finding of fact:\n7. The sum paid to Hoover Rehabilitation was for a nurse to accompany plaintiff to his doctor visits and plaintiff received no benefit from this service. The sum paid to Hoover Rehabilitation was not compensation to plaintiff.\nOur standard of review of a declaratory judgment is the same as in other cases. N.C. Gen. Stat. \u00a7 1-258 (2003); Integon Indem. Corp. v. Universal Underwriters Ins. Co., 131 N.C. App. 267, 270, 507 S.E.2d 66, 68 (1998). Therefore, in an action for a declaratory judgment where the trial court decides questions of fact, our standard of review is whether the trial court\u2019s findings of fact are supported by competent evidence. Insurance Co. v. Allison, 51 N.C. App. 654, 657, 277 S.E.2d 473, 475, disc. review denied, 303 N.C. 315, 281 S.E.2d 652 (1981). If supported by competent evidence, the trial court\u2019s findings of fact are conclusive on appeal. Finch v. Wachovia Bank & Tr. Co., 156 N.C. App. 343, 346-47, 577 S.E.2d 306, 308-09 (2003) (citing Miesch v. Ocean Dunes Homeowners Assn., 120 N.C. App. 559, 562, 464 S.E.2d 64, 67 (1995), disc. review denied, 342 N.C. 657, 467 S.E.2d 717 (1996)).\nDefendant argues that there was no evidence on which the trial court could base its finding that plaintiff received no benefit from Hoover Rehabilitation. However, defendant has failed to present any evidence in the record tending to show that plaintiff received any benefit from Hoover. \u201c \u2018The burden is on an appealing party to show, by presenting a full and complete record, that the record is lacking in evidence to support the [trial court\u2019s] findings of fact.\u2019 \u201d Davis v. Durham Mental Health/Development, 165 N.C. App. 100, 112, 598 S.E.2d 237, 245 (2004) (alteration in original) (quoting Dolbow v. Holland Industrial, 64 N.C. App. 695, 696, 308 S.E.2d 335, 336 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984)). Our Rules of Appellate Procedure state: \u201cThe record on appeal in civil actions . . . shall contain ... so much of the evidence ... as is necessary for an understanding of all errors assigned[.]\u201d N.C.R. App. 9(a)(1)(e). Furthermore, \u201c[w]here the evidence is not in the record, it will be assumed that there was sufficient evidence to support the findings. In other words, when the evidence is not in the record the matter is not reviewable.\u201d 1 Strong\u2019s North Carolina Index 4th Appeal and Error \u00a7 489 (1990) (footnotes omitted) (citing Leasing, Inc. v. Dan-Cleve Corp., 31 N.C. App. 634, 638, 230 S.E.2d 559, 562 (1976), disc. review denied, 292 N.C. 265, 233 S.E.2d 393 (1977) (\u201cThe rule is well established that when the evidence is not included in the record, it will be assumed that there was sufficient evidence to support the findings by the trial court.\u201d)); see also Forrest v. Pitt County Bd. of Education, 100 N.C. App. 119, 123, 394 S.E.2d 659, 662 (1990), aff\u2019d, 328 N.C. 327, 401 S.E.2d 366 (1991) (holding that, without transcripts, depositions, or other necessary documents \u201cit is presumed that the findings of fact are supported by competent evidence, and [the findings of fact] are therefore conclusive on appeal\u201d). Since the record on appeal is devoid of evidence regarding the services provided by Hoover Rehabilitation, we are unable to determine what evidence was before the trial court and are unable to perform a meaningful review of this assignment of error.\nIn the alternative, defendant argues that, as a matter of law, rehabilitation costs' are a part of the workers\u2019 compensation benefits received by an injured worker. In support of its argument, defendant cites Roberts v. ABR Associates, Inc., 101 N.C. App. 135, 398 S.E.2d 917 (1990), superseded by statute on other grounds as stated in Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 472 S.E.2d 382, cert. denied, 344 N.C. 629, 477 S.E.2d 39 (1996). We disagree with defendant\u2019s interpretation of Roberts. In Roberts, the workers\u2019 compensation carrier claimed that it was entitled to a lien in the amount that it paid for rehabilitation services. Id. at 137, 398 S.E.2d at 918. We held that before the Industrial Commission (the Commission) can determine that a workers\u2019 compensation carrier is .entitled to a lien, \u201cthe Commission must first find as fact. . . that the services were rehabilitative in nature . . . and reasonably \u2018required to effect a cure or give relief\u2019 to the plaintiff.\u201d Id. at 140-41, 398 S.E.2d at 920 (citing N.C. Gen. Stat. \u00a7 97-25 (1985)). Contrary to defendant\u2019s contention, Roberts states that rehabilitation services are not a benefit to a plaintiff as a matter of law, but rather must be subject to a fact-specific determination as to whether the services conferred a benefit to a plaintiff. We hold that the trial court did not err in excluding the cost of Hoover Rehabilitation\u2019s services when it computed the amount of workers\u2019 compensation benefits received by plaintiff.\nHaving determined the foregoing, we proceed to the two-step inquiry outlined in Austin II to calculate the amount payable to plaintiff by defendant. See Austin II, 166 N.C. App. at 743, 603 S.E.2d at 856. We first subtract the amount paid to plaintiff by the liability carrier ($30,000) from the UIM policy limit ($1,000,000) and find that the UIM coverage limit is $970,000. We next determine the amount plaintiff is entitled to recover from the UIM carrier. Plaintiff\u2019s total loss was valued at $126,874. From this amount we subtract the amount of workers\u2019 compensation benefits, not including the amount of the workers\u2019 compensation lien, ($40,749.42) and the amount plaintiff received from the liability carrier ($30,000). The resulting figure representing the total amount of plaintiff\u2019s uncompensated loss is $56,789.68. Thus, we hold that the amount payable by the UIM carrier to plaintiff is $56,789.68, plus interest.\nSince we have held that, under Austin II, defendant is entitled to a credit for the amount plaintiff received from the liability carrier, we need not consider defendant\u2019s remaining assignments of error regarding this issue.\nWe remand this matter for entry of judgment in the above calculated amount.\nReversed and remanded.\nJudges McCULLOUGH and ELMORE concur.\n. The figure $46,000 was reached by subtracting $35,000 (the amount of the worker\u2019s compensation carrier\u2019s lien) from $81,000 (the total paid out by the worker\u2019s compensation carrier). Defendant now admits, and the trial court found, that the total paid out by the worker\u2019s compensation carrier was $81,948.37: $24,201.54 in medical expenses; $51,547.88 to plaintiff in compensation; and $6,198.95 to Hoover Rehabilitation.\n. This figure was reached by subtracting the amount paid to Hoover Rehabilitation ($6,198.95) and the amount of the worker\u2019s compensation lien ($35,000) from the total amount paid by the worker\u2019s compensation carrier ($81,948.37).", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Gaskins & Gaskins, P.A., by Herman E. Gaskins, Jr., for plaintiff-appellee.", "McDaniel & Anderson, L.L.P., by William E. Anderson and John M. Kirby, for defendant-appellant." ], "corrections": "", "head_matter": "JAMES CARNELL WALKER, JR., Plaintiff-Appellee v. PENN NATIONAL SECURITY INSURANCE COMPANY, Defendant-Appellant\nNo. COA04-119\n(Filed 15 February 2005)\n1. Insurance\u2014 multiple coverage \u2014 credits\nThe trial court erred by failing to credit defendant \u2014 UIM carrier with the amount paid by the liability carrier in an automobile accident case involving liability insurance, workers\u2019 compensar tion insurance, and UIM insurance. A UIM carrier is entitled to a credit for payments made by the liability carrier; the failure to give defendant this credit gave plaintiff a recovery in excess of his actual damages.\n2. Workers\u2019 Compensation\u2014 rehabilitation costs \u2014 lack of evidence\nA lack of evidence regarding the rehabilitation services in question meant that the Court of Appeals was unable to perform a meaningful review of the exclusion of rehabilitation costs from the total amount of workers\u2019 compensation benefits.\n3. Workers\u2019 Compensation\u2014 rehabilitation costs \u2014 case-by-case determination\nThe trial court did not err by excluding the cost of rehabilitation services when it computed workers\u2019 compensation benefits. Rehabilitation services are not a benefit as a matter of law; they must be subject to a fact-specific determination of whether a benefit was conferred.\n4. Insurance\u2014 multiple coverages \u2014 calculation of amount payable\nThe Court of Appeals calculated the amount payable to plaintiff by defendant in an automobile accident case involving liability insurance, UIM insurance, and workers\u2019 compensation as follows: first, the amount paid to plaintiff by the liability carrier was subtracted from the UIM policy limit to find the UIM coverage limit; second, the amount plaintiff is entitled to recover from the UIM carrier was determined by subtracting the amount of workers\u2019 compensation benefits (not including the amount of the workers\u2019 compensation lien) and the amount plaintiff received from the liability carrier from plaintiff\u2019s total loss. The resulting figure represents the total amount of plaintiff\u2019s uncompensated loss and is the amount payable by the UIM carrier, plus interest.\nAppeal by defendant from judgment dated 1 December 2003 by Judge William C. Griffin, Jr. in Superior Court, Beaufort County. Heard in the Court of Appeals 13 October 2004.\nGaskins & Gaskins, P.A., by Herman E. Gaskins, Jr., for plaintiff-appellee.\nMcDaniel & Anderson, L.L.P., by William E. Anderson and John M. Kirby, for defendant-appellant." }, "file_name": "0555-01", "first_page_order": 585, "last_page_order": 591 }