{ "id": 12175266, "name": "THOMAS F. ADCOX, Employee, Movant v. CLARKSON BROTHERS CONSTRUCTION COMPANY, Employer, and UTICA MUTUAL INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Adcox v. Clarkson Bros. Construction Co.", "decision_date": "2014-09-16", "docket_number": "No. COA14-313", "first_page": "248", "last_page": "259", "citations": [ { "type": "official", "cite": "236 N.C. App. 248" } ], "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": "670 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642456 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/se2d/670/0910-01" ] }, { "cite": "664 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641637 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "624" }, { "page": "624" }, { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0619-01" ] }, { "cite": "672 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642790 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "753" }, { "page": "753-54" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0748-01" ] }, { "cite": "624 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634932 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "642" }, { "page": "642" }, { "page": "783" }, { "page": "642" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0639-01" ] }, { "cite": "652 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639753 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "717" }, { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0713-01" ] }, { "cite": "619 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634065 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "910" }, { "page": "910" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0907-01" ] }, { "cite": "309 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "541", "parenthetical": "declining to consider appellant's legal arguments when bound by law of the case" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525254 ], "year": 1983, "pin_cites": [ { "page": "605", "parenthetical": "declining to consider appellant's legal arguments when bound by law of the case" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0602-01" ] }, { "cite": "579 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "157 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188298 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/157/0625-01" ] }, { "cite": "195 N.C. App. 118", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164947 ], "year": 2009, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0118-01" ] }, { "cite": "723 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "798", "parenthetical": "holding where Commission failed to address defendants' appeal of deputy commissioner's award of attorneys' fees to plaintiff's counsel in its opinion and award, defendants properly appealed to this Court after Commission denied their motion to reconsider" } ], "opinion_index": 0 }, { "cite": "192 N.C. App. 211", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160083 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc-app/192/0211-01" ] }, { "cite": "195 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165123 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc-app/195/0363-01" ] }, { "cite": "606 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "409" }, { "page": "409" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 756", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8414080 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "759" }, { "page": "759" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0756-01" ] }, { "cite": "174 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353276 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "782" }, { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0778-01" ] }, { "cite": "187 N.C. App. 245", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373457 ], "year": 2007, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0245-01" ] }, { "cite": "173 N.C. App. 740", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354421 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "744" }, { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0740-01" ] }, { "cite": "590 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "312" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915431 ], "year": 2004, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0146-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-271", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "724 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "144", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 9-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "2009 WL 4576065", "category": "reporters:specialty_west", "reporter": "WL", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 906, "char_count": 27246, "ocr_confidence": 0.726, "pagerank": { "raw": 5.229278847409984e-08, "percentile": 0.3296948972700725 }, "sha256": "5d7a5b2daaf639a824fd9f0ff877f23e56bac628e8879c3524c3c62f02533fc5", "simhash": "1:1d4ccaa9797a492c", "word_count": 4346 }, "last_updated": "2023-07-14T22:41:07.458141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEELMAN concurs.", "Judge ROBERT N. HUNTER, JR. concurring in this opinion prior to 6 September 2014." ], "parties": [ "THOMAS F. ADCOX, Employee, Movant v. CLARKSON BROTHERS CONSTRUCTION COMPANY, Employer, and UTICA MUTUAL INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nIn a 27 March 2008 opinion and award, the deputy commissioner approved an attorneys\u2019 fee of 25% of the attendant care compensation awarded to plaintiff Thomas F. Adcox for his wife\u2019s services. Although defendants Clarkson Brothers Construction Company and Utica Mutual Insurance Company asked the Full Commission to reverse this award, the Commission, in a 25 November 2008 opinion and award, affirmed the deputy commissioner\u2019s opinion and award with modifications only as to the amount and rate of pay for the attendant care -- the Commission did not specifically address the 25% attorneys\u2019 fee award.\nSubsequently, plaintiff filed a motion seeking an order requiring that the 25% be paid directly to plaintiffs counsel in order to alleviate the bookkeeping burden on plaintiffs wife. Defendants contended - and the Commission agreed in an order entered 10 December 2012 - that the Commission\u2019s November 2008 opinion and award, by not specifically mentioning the attorneys\u2019 fees, necessarily denied plaintiffs attorneys\u2019 request for approval of a fee. Plaintiff appealed to the superior court, and the trial court dismissed his appeal on the grounds that the Commission had not, in its December 2012 order, denied a request for fees.\nWe cannot agree with the Commission\u2019s and defendants\u2019 position that the November 2008 opinion and award denied plaintiff\u2019s attorneys\u2019 request for fees. Defendants\u2019 contention that the Commission sub silentio reversed the deputy commissioner\u2019s award of fees is not tenable and is inconsistent with controlling authority. The Commission\u2019s silence in November 2008 on the issue of the deputy commissioner\u2019s award of attorneys\u2019 fee can be interpreted in only one of two ways: either the Commission affirmed the deputy commissioner or the Commission did not address the issue.\nIn either event, defendants bore the burden to appeal that opinion and award to this Court. When they failed to do so, the deputy commissioner\u2019s approval of an attorneys\u2019 fee became the law of the case, and the Commission had no authority to declare, in December 2012, that the original panel had reversed the deputy commissioner and denied plaintiffs request for approval of an attorneys\u2019 fee. Consequently, we reverse and remand to the trial court for further remand to the Commission for reconsideration of plaintiffs motion.\nFacts\nOn 28 February 1983, while employed by defendant Clarkson, plaintiff suffered an admittedly compensable head injury that left him permanently and totally disabled. Defendant Clarkson and defendant Utica National Insurance Group agreed to compensate plaintiff for his disability at a weekly rate of $248.00.\nIn February 2003, the parties filed a settlement agreement pursuant to which defendants agreed to. pay plaintiff a lump sum of $250,000.00 in reimbursement for attendant care services provided by plaintiff\u2019s family members, including his wife Joyce Adcox, from 28 February 1983 until 3 February 2003. The Commission approved a 25% attorneys\u2019 fee for plaintiff\u2019s counsel, which was deducted from the sum due plaintiff and paid directly to plaintiff\u2019s counsel. Thereafter, defendants authorized and began providing plaintiff with 60 hours of in-home professional attendant care services per week, provided by Kelly Home Health Services.\nIn 2007, Mrs. Adcox retired, and plaintiff moved to have defendants pay Mrs. Adcox directly for attendant care services instead of Kelly Services. The matter was heard by Deputy Commissioner John B. DeLuca on 30 August 2007. On 27 March 2008, the deputy commissioner entered an opinion and award allowing Mrs. Adcox to assume attendant care responsibilities seven days a week at a rate of $188.00 per day. In his award, the deputy commissioner ordered that \u201c[a]n attorneys\u2019 fee of 25% of the attendant care compensation is approved for the Plaintiff\u2019s counsel.\u201d\nBoth parties appealed to the Full Commission. On 25 November 2008, the Full Commission entered an opinion and award affirming the deputy commissioner\u2019s opinion and award \u201cwith modifications including the amount of attendant care and rate of pay for said care.\u201d The Full Commission allowed Mrs. Adcox to assume attendant care responsibilities seven days per week for 16 hours per day at a rate of $10.00 per hour. The opinion and award did not mention the 25% attorneys\u2019 fee award to plaintiff\u2019s counsel. Plaintiff appealed to this Court for reasons unrelated to the 25% attorneys\u2019 fee award. Defendants chose not to appeal. On 8 December 2009, this Court affirmed the 25 November 2008 opinion and award. See Adcox v. Clarkson Bros. Constr. Co., 201 N.C. App. 446, _ S.E.2d _, 2009 WL 4576065, 2009 N.C. App. LEXIS 2308 (2009) (unpublished).\nOn 12 July 2012, plaintiff filed a motion with the Full Commission requesting that it direct payment of the attorneys\u2019 fees to plaintiff\u2019s counsel. The motion explained that \u201cMrs. Adcox is responsible for her own income tax record-keeping and reporting of the attendant care income she receives. For tax purposes the failure by the carrier to direct separate checks makes it appear as though Mrs. Adcox\u2019s attendant care income is higher than it actually is.\u201d Plaintiff requested that defendants be ordered to deduct 25% of the compensation payable to Mrs. Adcox to be paid directly to plaintiff\u2019s counsel because the record keeping \u201chas become burdensome for Mrs. Adcox.\u201d\nA new panel of commissioners heard plaintiff\u2019s 2012 motion. Commissioners Linda Cheatham and Tammy R. Nance replaced Commissioners Dianne C. Sellers and Laura Kranifeld Mavretic from the original 2008 panel. Commissioner Danny Lee McDonald served on both panels. On 10 December 2012, the Full Commission entered an order denying plaintiff\u2019s motion.\nThe Commission found that both parties had appealed Deputy Commissioner DeLuca\u2019s opinion and award to the Full Commission. Regarding defendants\u2019 appeal, the Commission noted that although defendants had not specifically assigned error to the attorneys\u2019 fee award in their form 44, they had generally challenged each paragraph of the deputy\u2019s award and had addressed the 25% attorneys\u2019 fee award in their brief to the Commission. The Commission then concluded:\nThe Full Commission\u2019s Opinion and Award filed on November 25, 2008 directs Defendants to pay Mrs. Adcox for attendant care services from the date of the filing of the Opinion and Award at a rate of $10.00 per hour, 7 days per week, 16 hours per day. The Opinion and Award does not include an award of attorneys\u2019 fees for Plaintiff\u2019s counsel.\nPlaintiff appealed the Full Commission\u2019s decision to the North Carolina Court of Appeals. Based upon a review of the Court\u2019s Opinion, it does not appear that Plaintiff assigned error to the Full Commission\u2019s decision in its Opinion and Award not to award an attorneys\u2019 fee to Plaintiff\u2019s counsel.\nAs Plaintiff seeks to have the Full Commission direct Defendants to deduct and pay directly to counsel for Plaintiff attorneys\u2019 fees which have not been awarded by the Full Commission, Plaintiff\u2019s Motion to Direct Payment of Attorneys\u2019 Fees to Plaintiff\u2019s Counsel is hereby DENIED.\nCommissioner McDonald - the one commissioner who had served on the 25 November 2008 panel - dissented without opinion.\nOn 12 December 2012, plaintiff appealed the order to superior court pursuant to N.C. Gen. Stat. \u00a7 97-90. On 19 June 2013, defendants moved to dismiss plaintiff\u2019s appeal pursuant to Rules 12(b)(1), (2), and (6) of the Rules of Civil Procedure. On 25 June 2013, plaintiff moved to strike defendants\u2019 motion to dismiss for lack of standing.\nAfter a 26 August 2013 hearing, the trial court entered an order dismissing plaintiff\u2019s appeal on 17 September 2013. The trial court took judicial notice of the 25 November 2008 opinion and award and the 10 December 2012 order of the Full Commission. It found in pertinent part:\n(2) that the December 10, 2012 Order from which Movant now purportedly appeals did not deny any attorneys fees, but simply clarified that the Commission had not awarded attorneys fees in the November 25, 2008 Order;\n(3) that Movant\u2019s litigated request for attorney fees was denied on November 25, 2008;\n(4) that Movant\u2019s current request for attendant care attorney fees per N.C. Gen. Stat. \u00a7 9-90 [sic] should be barred by \u00a7 97-90 and the doctrine of res judicata-,\n(5) that the November 25, 2008, Order of the North Carolina Industrial Commission and the parties\u2019 appeal therefrom to the North Carolina Court of Appeals, represented a final judgment on the merits as to the issue of any attorney fee based on a percentage of attendant care medical benefits provided to Movant pursuant to North Carolina General Statutes \u00a7 97-25, which is the only claim at issue in this litigation[.]\nThe trial court, therefore, dismissed plaintiff\u2019s appeal with prejudice. Plaintiff timely appealed to this Court.\nDiscussion\nPlaintiff first contends that defendants lacked standing to oppose both his motion to the Full Commission and his appeal from the 10 December 2012 decision of the Full Commission to superior court. As explained by this Court in Diaz v. Smith, _ N.C. App. _, _, 724 S.E.2d 141, 144 (2012) (internal citations and quotation marks omitted):\nThe Workers\u2019 Compensation Act provides that an appeal from an opinion and award of the Industrial Commission is subject to the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions. Under N.C. Gen. Stat. \u00a7 1-271 (2009), \u201c[a]ny party aggrieved\u201d is entitled to appeal in a civil action. A party aggrieved is one whose legal rights have been denied or directly and injuriously affected by the action of the trial tribunal. If the party seeking appeal is not an aggrieved party, the party lacks standing to challenge the lower tribunal\u2019s action and any attempted appeal must be dismissed.\nPlaintiff argues that because his motion to direct payments to plaintiff\u2019s counsel does not affect the total amount to be paid by defendants, defendants are not an \u201caggrieved\u201d party. Defendants counter that they are an \u201caggrieved\u201d party because (1) \u201cif Plaintiffs Counsel is awarded attorney\u2019s fees as a result of this appeal, Defendants would either be required to pay an additional 25% in the form of attorneys [sic] fees, or fund Plaintiffs Counsel\u2019s attorney\u2019s fees by reducing the amount of compensation to Mrs. Adcox, thereby subjecting Defendants to liability for compensation owed to Mrs. Adcox, as mandated in the Opinion and Award\u201d and (2) \u201callowing a plaintiff\u2019s counsel to have a pecuniary interest in an authorized medical provider could create a conflict between his obligations to represent his client and a defendant\u2019s obligation to manage medical treatment pursuant to N.C. Gen. Stat. \u00a7 97-25.\u201d\nBecause of our resolution of this appeal, we need not decide whether defendants have standing in this case to challenge an award of attorneys\u2019 fees to plaintiff\u2019s attorney that does not affect the total amount payable by defendants. We express no opinion whether defendants\u2019 contentions are sufficient to make them aggrieved parties for purposes of an appeal.\nPlaintiffs primary argument on appeal is that the trial court erred in finding that the Full Commission denied his request for attorneys\u2019 fees in its 25 November 2008 opinion and award and, as a result, erred in dismissing his appeal on the grounds of res judicata. Plaintiff argues that the deputy commissioner\u2019s award of attorneys\u2019 fees became final when defendants did not specifically assign as error the award of attorneys\u2019 fees in their Form 44 as required by Rule 701 of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission. Alternatively, plaintiff argues that the Commission affirmed the award of attorneys\u2019 fees. We review these questions of law de novo. McAllister v. Wellman, Inc., 162 N.C. App. 146, 148, 590 S.E.2d 311, 312 (2004).\nRule 701 provides:\n(2) After receipt of notice of appeal, the Industrial Commission will supply to the appellant a Form 44 Application for Review upon which appellant must state the grounds for the appeal. The grounds must be stated with particularity, including the specific errors allegedly committed by the Commissioner or Deputy Commissioner and, when applicable, the pages in the transcript on which the alleged errors are recorded. Failure to state with particularity the grounds for appeal shall result in abandonment of such grounds, as provided in paragraph (3)....\n(3) Particular grounds for appeal not set forth in the application for review shall be deemed abandoned, and argument thereon shall not be heard before the Full Commission.\n(Emphasis added.)\nThis Court has emphasized that \u201cthe portion of Rule 701 requiring appellant to state with particularity the grounds for appeal may not be waived by the Full Commission. Without notice of the grounds for appeal, an appellee has no notice of what will be addressed by the Full Commission.\u201d Roberts v. Wal-Mart Stores, Inc., 173 N.C. App. 740, 744, 619 S.E.2d 907, 910 (2005). \u201cSuch notice is required for the appel-lee to prepare a response to an appeal to the Full Commission.\u201d Wade v. Carolina Brush Mfg. Co., 187 N.C. App. 245, 252, 652 S.E.2d 713, 717 (2007). Thus, \u201cthe penalty for non-compliance with the particularity requirement is waiver of the grounds, and, where no grounds are stated, the appeal is abandoned.\u201d Id. at 249, 652 S.E.2d at 715.\nDefendants argue that they properly appealed the issue of attorneys\u2019 fees to the Full Commission because they specifically listed Deputy Commissioner DeLuca\u2019s Award, which included the award of attorneys\u2019 fees, in the third assignment of error on their Form 44 Application for review:\nDeputy Commissioner John B. DeLuca\u2019s Award, dated March 27, 2008, on the grounds that it is based upon Findings of Fact and Conclusions of Law which are erroneous, not supported by competent evidence or evidence of record, and are contrary to the competent evidence of record, and are contrary to law: Award Nos. 1-3.\nThis assignment of error is similar to the appellant\u2019s assignment of error in Walker v. Walker, 174 N.C. App. 778, 782, 624 S.E.2d 639, 642 (2005), which asserted generally that several rulings of the trial court were \u201c \u2018erroneous as a matter of law.\u2019\u201d In concluding that this assignment of error was insufficient under the 2005 version of Rule 10 of the Rules of Appellate Procedure, this Court held that the \u201cassertion that a given finding, conclusion, or ruling was \u2018erroneous as a matter of law\u2019 \u201d violated Rule 10 because it \u201ccompletely fail[ed] to identify the issues actually briefed on appeal.\u201d Walker, 174 N.C. App. at 782, 624 S.E.2d at 642. Instead, \u201c \u2018[s]uch an assignment of error is designed to allow counsel to argue anything and everything they desire in their brief on appeal. This assignment - like a hoopskirt - covers everything and touches nothing.\u2019 \u201d Id. at 783, 624 S.E.2d at 642 (quoting Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 759, 606 S.E.2d 407, 409 (2005)).\nSimilarly, here, defendant\u2019s assignment of error \u201c \u2018covers everything and touches nothing.\u2019 \u201d Id. (quoting Wetchin, 167 N.C. App. at 759, 606 S.E.2d at 409). Although it states a general objection to each paragraph of the award (without specifically mentioning the attorneys\u2019 fee award), it does not state the basis of any objection to the attorneys\u2019 fee award with sufficient particularity to give plaintiff notice of the legal issues that would be addressed by the Full Commission such that he could adequately prepare a response. See Roberts, 173 N.C. App. at 744, 619 S.E.2d at 910.\nDefendants\u2019 third assignment of error also is in stark contrast to defendants\u2019 fourth assignment of error: \u201cDeputy Commissioner John B. DeLuca\u2019s Award dated March 27, 2008, in that it failed to award attorney fees as requested by Defendants pursuant to \u00a797-88.1.\u201d In this assignment of error, defendants indicated specifically which particular aspect of the award they challenged. Significantly, defendants did not include a similar assignment of error for the award of attorneys\u2019 fees challenged here.\nDefendants nonetheless contend that they met the particularity requirement by addressing the question of attorneys\u2019 fees in their brief to the Full Commission, citing Cooper v. BHT Enters., 195 N.C. App. 363, 672 S.E.2d 748 (2009). In Cooper, the plaintiff argued that, pursuant to Roberts, the defendant\u2019s failure to file a Form 44 constituted an abandonment of defendants\u2019 grounds for appeal to the Full Commission, and therefore the Commission erred by hearing the appeal. Id. at 368, 672 S.E.2d at 753. This Court disagreed, reasoning that\nunlike the appealing plaintiff in Roberts, defendants in the present case complied with Rule 701(2)\u2019s requirement to state the grounds for appeal with particularity by timely filing their brief after giving notice of their appeal to the Full Commission. Additionally, plaintiff does not argue that she did not have adequate notice of defendants\u2019 grounds for appeal. Plaintiff asserts only that defendants\u2019 failure to file a Form 44 should have been deemed an abandonment of defendants\u2019 appeal. Since both this Court and the plain language of the Industrial Commission\u2019s rules have recognized the Commission\u2019s discretion to waive the filing requirement of an appellant\u2019s Form 44 where the appealing party has stated its grounds for appeal with particularity in a brief or other document filed with the Full Commission, we overrule these assignments of error.\nId. at 368-69, 672 S.E.2d at 753-54.\nIn other words, failure to file a Form 44 does not automatically result in a mandatory dismissal of the appeal by the Industrial Commission - it is within the discretion of the Commission whether to deem the grounds for appeal waived. In determining whether the Commission abused its discretion in deciding not to deem an issue on appeal waived, this Court in Cooper considered whether the appellant provided the appellee with adequate notice of the grounds for appeal through other means such as addressing the issue in its brief to the Full Commission.\nHere, unlike in Cooper, the Commission did not explicitly address the issue purportedly raised by defendants on appeal in its opinion and award. Under Cooper, it would not have been an abuse of discretion for the Commission to address the attorneys\u2019 fee issue, but it is unclear whether the Commission considered the issue or not. Although defendants contend that the \u201cFull Commission Award removed the appealed prior award of attendant care attorney fees and awarded attendant care compensation to be paid directly to Mrs. Adcox[,]\u201d nothing in the Commission\u2019s Opinion and Award indicates that it was \u201cremov[ing]\u201d the attorneys\u2019 fee award. Defendants have cited no authority - and we have found none - supporting their position that silence by the Commission regarding a determination by the deputy commissioner can amount to reversal.\nIn fact, this Court has already rejected such a contention in Polk v. Nationwide Recyclers, Inc., 192 N.C. App. 211, 664 S.E.2d 619 (2008). In Polk, the plaintiff argued that the Full Commission failed to consider all the evidence presented because, unlike the deputy commissioner\u2019s order, the Full Commission did not make findings regarding all the issues presented on appeal. Id. at 218, 664 S.E.2d at 624. The Court rejected the plaintiff\u2019s argument, reasoning:\n[I]n this case, the Full Commission\u2019s opinion states outright that it \u201caffirms the Opinion and Award of Deputy Commissioner Deluca with modifications.\" . . . That is, the Full Commission\u2019s opinion is not an order meant to stand on its own, but rather a modification of the deputy commissioner\u2019s order. As plaintiff herself states, the facts at issue were included in the deputy commissioner\u2019s order. We see no reason to require that such an order restate all the findings of fact and conclusions of law from the original order that need no modification. Considering that defendants filed an appeal containing thirty-two alleged errors, it is not surprising that the Full Commission did not address each individually.\nId. This Court assumed with regard to the omitted findings that the Commission wished to affirm the deputy commissioner\u2019s opinion and award, nothing else appearing in the opinion and award to the contrary. Id. at 218-19, 664 S.E.2d at 624.\nSimilarly, here, the Full Commission\u2019s opinion and award states that it \u201caffirms the Opinion and Award of Deputy Commissioner DeLuca with modifications including the amount of attendant care and rate of pay for said care.\u201d As such, the Full Commission\u2019s opinion \u201cis not an order meant to stand on its own.\u201d Id. at 218, 664 S.E.2d at 624. It is undisputed that the deputy commissioner awarded attorneys\u2019 fees to plaintiff\u2019s counsel, and there is no indication that the Commission intended to modify that award.\nIndeed, plaintiff correctly notes that under N.C. Gen. Stat. \u00a7 97-90(c) (2013), the statute authorizing the award of attorneys\u2019 fees in this instance, any decision by the Commission to deny attorneys\u2019 fees must be supported by specific findings. N.C. Gen. Stat. \u00a7 97-90(c) provides:\nIf an attorney has an agreement for fee or compensation under this Article, he shall file a copy or memorandum thereof with the hearing officer or Commission prior to the conclusion of the hearing. If the agreement is not considered unreasonable, the hearing officer or Commission shall approve it at the time of rendering decision. If the agreement is found to be unreasonable by the hearing officer or Commission, the reasons therefor shall be given and what is considered to be reasonable fee allowed.\nThe lack of findings in the November 2008 opinion and award to justify a denial of attorneys\u2019 fees is contrary to defendants\u2019 contention and the Commission\u2019s assumption that the Commission in 2008 intended to deny the fee request.\nIn short, based on a review of the November 2008 opinion and award, either the Commission intended to affirm the deputy commissioner\u2019s award, or, alternatively, the Full Commission did not consider the issue - whether through inadvertence or because it deemed the matter waived. Nothing in the opinion and award suggests and no authority exists that we can find, which would permit us to conclude that the Commission reversed the deputy commissioner\u2019s award and silently denied plaintiff\u2019s counsel the 25% attorneys\u2019 fee.\nAssuming, without deciding, that defendants had standing to challenge the deputy commissioner\u2019s award of attorneys\u2019 fees, the burden was on defendants to obtain a ruling from the Full Commission. When the Full Commission failed to explicitly reverse the deputy commissioner\u2019s award, defendants could have requested reconsideration and, if the Commission did not rule in their favor, appealed to this Court. See Hurley v. Wal-Mart Stores, Inc., _ N.C. App. _, _, 723 S.E.2d 794, 798 (2012) (holding where Commission failed to address defendants\u2019 appeal of deputy commissioner\u2019s award of attorneys\u2019 fees to plaintiff\u2019s counsel in its opinion and award, defendants properly appealed to this Court after Commission denied their motion to reconsider).\nThis Court has held that \u201cwhen a party fails to appeal from a tribunal\u2019s decision that is not interlocutory, the decision below becomes \u2018the law of the case\u2019 and cannot be challenged in subsequent proceedings in the same case.\u201d Boje v. D.W.I.T., L.L.C., 195 N.C. App. 118, 122, 670 S.E.2d 910, 912 (2009). Here, when defendants failed to appeal the Full Commission\u2019s 25 November 2008 opinion and award, defendants abandoned any contention that the ruling was erroneous, and the deputy commissioner\u2019s award of attorneys\u2019 fees became the law of the case.\nUnder the law of the case doctrine, defendants could not attack and the Commission could not reverse the award of attorneys\u2019 fees. See id. (holding that \u201csince [defendant] did not appeal Deputy Commissioner Berger\u2019s 2003 opinion and award finding that it did not have workers\u2019 compensation insurance coverage on the date of plaintiff\u2019s accident,\u201d this finding was the law of the case, and defendant \u201cwas barred from relitigating that issue in subsequent proceedings\u201d).\nBecause the November 2008 opinion and award left the deputy commissioner\u2019s award standing, plaintiff\u2019s 12 July 2012 motion to direct payment of attorneys\u2019 fees to plaintiff\u2019s counsel was not, as defendants contend, a motion to re-litigate the substantive issue whether attorneys\u2019 fees had been awarded by the Full Commission. Rather, it was simply a procedural motion regarding the way in which the awarded fees would be paid. The Commission\u2019s December 2012 order, as a result, had the effect of improperly denying plaintiff\u2019s attorneys\u2019 fees. Consequently, plaintiff was entitled to appeal the December 2012 order to superior court pursuant to N.C. Gen. Stat. \u00a7 97-90, and the superior court erred in dismissing plaintiff\u2019s appeal.\nDefendants, nevertheless, contend that the Commission and the superior court did not have authority to award plaintiff\u2019s counsel fees under the rule set forth in Palmer v. Jackson, 157 N.C. App. 625, 579 S.E.2d 901 (2003). This argument - addressing the merits of plaintiff\u2019s request for attorneys\u2019 fees - is not properly before this Court because the award of attorneys\u2019 fees is the law of the case. See Barrington v. Emp\u2019t Sec. Comm\u2019n, 65 N.C. App. 602, 605, 309 S.E.2d 539, 541 (1983) (declining to consider appellant\u2019s legal arguments when bound by law of the case). Defendants\u2019 arguments should have been raised in the first appeal to this Court. Nothing in this opinion expresses any view regarding defendants\u2019 arguments under Palmer.\nWe, therefore, reverse and remand to the superior court for remand to the Commission. On remand, since the Commission denied plaintiff\u2019s motion under a misapprehension of law regarding the effect of its 2008 opinion and award, the Commission must reconsider its ruling on that motion.\nReversed and remanded.\nJudge STEELMAN concurs.\nJudge ROBERT N. HUNTER, JR. concurring in this opinion prior to 6 September 2014.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "R. James Lore, Attorney at Law, by R. James Lore; and Nicholls & Crampton, PA, by Nicholas J. Dombalis, II, for plaintiff-appellant.", "Hedrick, Gardner, Kincheloe & Garofalo, LLP, by Kari L. Schultz and M. Duane Jones, for defendants-appellees." ], "corrections": "", "head_matter": "THOMAS F. ADCOX, Employee, Movant v. CLARKSON BROTHERS CONSTRUCTION COMPANY, Employer, and UTICA MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. COA14-313\nFiled 16 September 2014\nWorkers\u2019 Compensation\u2014attorney fees\u2014award final\u2014not specific assignment of error\nThe trial court erred in a workers\u2019 compensation case by finding that the Full Industrial Commission denied plaintiffs request for attorneys\u2019 fees in its 25 November 2008 opinion and award and, as a result, erred in dismissing his appeal on the grounds of res judicata. The deputy commissioner\u2019s award of attorneys\u2019 fees became final when defendants did not specifically assign as error the award of attorneys\u2019 fees in their Form 44 as required by Rule 701 of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission.\nAppeal by plaintiff from order entered 17 September 2013 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 28 August 2014.\nR. James Lore, Attorney at Law, by R. James Lore; and Nicholls & Crampton, PA, by Nicholas J. Dombalis, II, for plaintiff-appellant.\nHedrick, Gardner, Kincheloe & Garofalo, LLP, by Kari L. Schultz and M. Duane Jones, for defendants-appellees." }, "file_name": "0248-01", "first_page_order": 256, "last_page_order": 267 }