All opinions are subject
to modification and technical correction prior to official publication in the
North Carolina Reports and North Carolina Court of Appeals Reports. In the
event of discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
NO.
COA03-850-2
NORTH
CAROLINA COURT OF APPEALS
Filed: 18 January 2005
ESTATE OF WORTH APPLE,
on Behalf of WORTH APPLE,
Deceased Employee, and
BESSIE HUTCHINS APPLE,
Widow of WORTH APPLE,
Deceased Employee,
Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 122427
COMMERCIAL COURIER EXPRESS, INC.,
Employer;
COMPANY,
Carrier,
Defendants
Appeal by plaintiff from an Opinion and Award entered 13 February 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 30 March 2004. Opinion filed 20 July 2004. Petition for rehearing granted 19 August 2004, reconsidering the case with the filing of additional briefs only. The following opinion supersedes and replaces the opinion filed 20 July 2004.
R.
James Lore for plaintiff-appellant.
Carruthers
& Roth, P.A., by Norman F. Klick, Jr. and J. Patrick Haywood, for
defendant-appellees.
HUNTER,
Judge.
Plaintiff
appeals an Opinion and Award of the Full Commission of the North Carolina
Industrial Commission filed 13 February 2003 ruling that Commercial Courier
Express, Inc. (“CCE”) and Michigan Mutual Insurance Company (collectively
“defendants”) were not responsible for additional payments for rehabilitation
care of Worth Apple (“Apple”). Because
we conclude plaintiff lacks standing to bring this claim, we must vacate that
portion of the Commission’s Opinion and Award.
This
case stems from the same facts as Estate of Apple v. Commercial Courier
Express, Inc., ___ N.C. App. ___, 598 S.E.2d 623 (2004). Apple was working as a courier for CCE when
he was attacked and hit in the head with a hammer in August 1994. He remained in a persistent vegetative state
until his death in January 2001. This
appeal solely involves a claim by plaintiff that defendants failed to pay
$160,000.00 in accrued medical expenses to Winston-Salem Rehabilitation and
Healthcare Center (“W-S Rehab”) pursuant to a Form 21 agreement entered into by
the parties.
W-S
Rehab did not intervene in the action and the record in this case reveals W-S
Rehab accepted a reduced payment of $50,000.00 as payment in full for services
rendered to Apple and the account was settled to the satisfaction of W-S
Rehab. On this issue, the Commission
concluded, inter alia:
3. As a result of decedent’s compensable injury, decedent was entitled to have defendants provide all necessary medical treatment arising from his compensable injury to the extent it tended to effect a cure, give relief or lessen decedent’s disability. . . . Plaintiff failed to establish . . . that defendants have failed to pay the agreed reimbursement for the reasonable services provided by W-S Rehab.
4. [W-S Rehab] is estopped to request
further compensation after accepting the $50,0000 payment as a full accord and
satisfaction of the claim or potential claim for unpaid medical services. . . .
Thus,
in the award portion of the Opinion and Award, the Commission stated: “Defendants are not responsible for payment
of any additional monies to W-S Rehab for the care of decedent . . . .”
Although
the Commission ruled in favor of defendants on the merits of the case primarily
on the ground of accord and satisfaction between defendants and W-S Rehab, the
dispositive issue before us on appeal is whether plaintiff even has standing to
assert the non-payment of medical expenses by decedent’s employer to a
third-party provider.
If
a party does not have standing to bring a claim, a court has no subject matter
jurisdiction to hear the claim. See
Neuse River Found., Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 113,
574 S.E.2d 48, 51 (2002); see also Henke v. First Colony Builders,
Inc., 126 N.C. App. 703, 704, 486 S.E.2d 431, 432 (1997) (stating in a
workers’ compensation case, “[t]his Court may ex mero motu dismiss an
appeal for lack of subject matter jurisdiction, even if it is not raised by the
parties on appeal”). Standing consists
of three main elements:
“(1) ‘injury in fact’ ‑‑
an invasion of a legally protected interest that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.”
Neuse
River Found.,
155 N.C. App. at 114, 574 S.E.2d at 52 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560‑61, 119 L. Ed. 2d 351, 364 (1992)). The issue of standing generally turns on
whether a party has suffered injury in fact.
See id.
In
this case, plaintiff has made no showing that injury in fact has resulted or
will result if defendants are not required to pay W-S Rehab the full
$160,000.00. First of all, there is no
outstanding debt to W-S Rehab to be collected as evidenced by W-S Rehab’s own
correspondence. Further, even if there
was an outstanding debt, W-S Rehab is barred by law from attempting to collect
any such debt from plaintiff. See N.C.
Gen. Stat. §97-88.3(c) (2003) (class 1 misdemeanor for a healthcare provider to
knowingly hold an employee responsible for medical expenses incurred as a
result of a compensable injury); see also N.C. Gen. Stat. §97-90(e)
(2003) (a health care provider shall not pursue a private claim against an
employee for costs of treatment unless claim is adjudicated not
compensable). In addition, the sole and
exclusive remedy for a healthcare provider seeking payment from an employer in
a compensable claim is to apply for relief from the Commission. See Palmer v. Jackson, 157 N.C. App.
625, 634‑35, 579 S.E.2d 901, 908 (2003), disc. review improvidently
allowed, 358 N.C. 373, 595 S.E.2d 145 (2004). No such application was made in this case.
Nonetheless,
plaintiff asserts it has suffered an injury in fact because it must protect its
relationship with the medical provider by ensuring bills are fully paid. Plaintiff contends it is highly unlikely
that a medical provider would be willing to continue providing treatment when
its bills are compromised or not paid at all.
To constitute an injury in fact, the invasion of a legally protected
interest can not be conjectural or hypothetical. See Neuse River Found., 155 N.C. App. at 114, 574 S.E.2d
at 52. Plaintiff’s assertion that it
would be highly unlikely a medical provider would be willing to continue
providing treatment when its bills are compromised or not paid at all is
conjecture or hypothetical.
Furthermore, in this case, the Commission found decedent received
appropriate care and that his care was not improperly limited.
Plaintiff
also contends it has suffered an injury in fact because it has a pecuniary
interest in the payment of interest on medical compensation under N.C. Gen.
Stat. §97-86.2. However, under N.C.
Gen. Stat. §97-86.2, plaintiff would be entitled to interest on medical
compensation only where there is an appeal resulting in an ultimate award to
the employee. The possibility of a
favorable decision on appeal is not an invasion of a legally protected interest
that is either concrete and particularized, or
actual or imminent. See Neuse
River Found., 155 N.C. App. at 114, 574 S.E.2d at 52.
Next,
plaintiff asserts it has a pecuniary interest in awards of attorney fees
granted under N.C. Gen. Stat. §§97-88.1 and 97-88. Under N.C. Gen. Stat. §§97-88 and 97-88.1, an award of attorney’s
fees is a discretionary decision made by the Commission. See Taylor v. J. P. Stevens Co., 307
N.C. 392, 397, 298 S.E.2d 681, 684 (1983).
Similar to plaintiff’s assertions regarding interest on medical
compensation, the possibility of an attorney’s fees award is not an invasion of
a legally protected interest that is concrete and particularized, or actual or
imminent. See Neuse River Found.,
155 N.C. App. at 114, 574 S.E.2d at 52.
Plaintiff
also argues the cases of Hyler v. GTE Products Co., 333 N.C. 258, 425
S.E.2d 698 (1993) and Pearson v. C.P. Buckner Steel Erection Co., 348
N.C. 239, 498 S.E.2d 818 (1998) confer standing to plaintiff. Plaintiff cites the following language from Hyler:
[W]e conclude that the
legislature always has provided for, and continues to provide for, two distinct
components of an award under the Workers’ Compensation Act: (1) payment for the cost of medical care,
now denominated “medical compensation,” which consists of payment of the
employee’s medical expenses incurred as a result of a job‑related injury;
and (2) general “compensation” for financial loss other than medical expenses,
which includes payment to compensate for an employee’s lost earning capacity
and payment of funeral expenses.
Hyler, 333 N.C. at 267, 425
S.E.2d at 704. This language in Hyler
does not confer standing upon plaintiff.
Rather, our Supreme Court was explaining a claimant may seek two types
of compensation under our workers’ compensation statute -- medical compensation
for medical expenses and general compensation for financial loss. Nothing in our opinion today precludes a
claimant from pursuing a “medical only” claim.
Similarly,
Pearson v. C.P. Buckner, does not confer standing upon plaintiff. In Pearson, our Supreme Court
considered the issue of
whether an employer who
denies liability but is ordered to pay medical expenses under the Workers’
Compensation Act (Act) may fulfill this obligation by merely reimbursing
Medicaid where Medicaid has paid medical providers a portion of the cost of
treatment or whether the employer must also pay medical providers the
difference between the amount covered by Medicaid and the full amount
authorized by the Act under the Industrial Commission (Commission) fee schedule
for medical expenses.
Pearson, 348 N.C. at 240, 498
S.E.2d at 819. Thus, in Pearson,
our Supreme Court had to consider whether the federal Medicaid statutes and regulations
preempted North Carolina’s Workers’ Compensation Act. Id. at 243-47, 498 S.E.2d at 820-23. The issue before us in this case is whether
a workers’ compensation claimant has standing to challenge a compromise and
settlement agreement entered into by an employer and a medical provider. In Pearson, our Supreme Court did not
discuss standing, compromise and settlement agreements, or the issue presented
by this case.
As
such, we conclude plaintiff does not have standing to bring a claim for past
due medical expenses owed to a third-party medical provider by an employer in a
compensable workers’ compensation claim where (1) the employer has admitted
compensability, (2) the employer and medical provider entered into an accord
and satisfaction, (3) the medical provider has made no claim for relief before
the Commission, and (4) plaintiff has made no showing that the failure to make
payment results in injury in fact.[Note 1] Furthermore, our holding
today does not preclude a workers’ compensation claimant from pursuing a
medical only compensation claim when the claim is disputed or contested and
there has not been an intervention of a medical provider in the lawsuit.[Note
2] Accordingly, the portion of the Opinion and Award of the Commission
addressing this issue, as contained in paragraphs 3 and 4 of the Commission’s
conclusions of law and paragraph 3 of the award, must be vacated.[Note 3]
Finally,
as we have concluded plaintiff does not have standing to contest the compromise
and settlement agreement between defendants and the medical provider, we do not
reach the issue of whether the Commission had to approve the settlement
agreement under the facts of this case.
Vacated
in part.
Judge WYNN concurs.
Judge
TYSON concurs in the result only in a separate opinion.
1. To the extent that plaintiff impliedly
asserts in this appeal that defendants’ failure to make full payment led to a
reduction in the standard of care provided by W-S Rehab to Apple, plaintiff’s
recourse was not to force payment by defendants, but was instead under N.C.
Gen. Stat. §97-25, which provides that “[t]he Commission may at any time upon
the request of an employee order a change of treatment and designate other
treatment suggested by the injured employee subject to the approval of the Commission,
and in such a case the expense thereof shall be borne by the employer . . .
.” N.C. Gen. Stat. §97-25 (2003). Furthermore, if plaintiff believed the care
given to Apple by W-S Rehab was legally substandard, the proper remedy would
have been to pursue a potential tort action against W-S Rehab outside of the
workers’ compensation regime.
2. Plaintiff argued in its petition for
rehearing that our decision could result in the dismissal of more than 100,000
current workers’ compensation cases.
Plaintiff also explained that for seventy-five years it had been the
practice of the Industrial Commission to view the injured party plaintiff as a
real party at interest having standing to bring “medical only” claims. Indeed, in the last Biennial Report of the
North Carolina Industrial Commission, covering 1988-89 and 1989-90, the number
of reported “medical only” cases involving medical compensation of $1,000.00 or
less was 143,040 for 1988-89 and 120,407 for 1989-90. While we acknowledge that a substantial number of cases before
the Industrial Commission involve “medical only” claims, we reiterate that our
holding today does not impact these cases.
As we stated, a workers’ compensation claimant in a contested case has
standing to pursue a “medical only” claim.
However, in those instances where the medical provider and the insurance
carrier or employer have agreed to a compromise and settlement of the claim,
plaintiff lacks standing to pursue that medical claim. In those instances, the medical provider is
precluded from seeking redress against the claimant.
3. We note the remaining issues dealt with by the Commission regarding indemnity compensation to plaintiff are not before us on appeal and thus, this decision does not address the remaining portion of the Commission’s Opinion and Award.
NO. COA03-850-2
NORTH
CAROLINA COURT OF APPEALS
Filed: 18 January 2005
ESTATE OF WORTH APPLE,
on Behalf of WORTH APPLE,
Deceased Employee, and
BESSIE HUTCHINS APPLE,
Widow of WORTH APPLE,
Deceased Employee,
Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 122427
COMMERCIAL COURIER EXPRESS, INC.,
Employer;
COMPANY,
Carrier,
Defendants
TYSON,
Judge concurring in the result only.
I
agree with this Court’s reasoning in our first opinion, Estate of Worth
Apple v. Commercial Courier Express, Inc., __ N.C. App. __, 598 S.E.2d 623
(2004) (“Apple I”).
As
stated in Apple I and restated above in the majority’s opinion, the
issue before this Court is whether plaintiff has standing to assert the
non-payment of medical expenses by Apple’s employer to a third-party
provider. In Apple I, we held:
plaintiff has no
standing to bring a claim for past due medical expenses owed to a third-party
medical provider by an employer in a compensable workers’ compensation claim
where[:] (1) the medical provider has
made no claim for relief before the Commission[;] and (2) plaintiff has made no
showing that the failure to make payment results in injury in fact.
Id. at __, 598 S.E.2d at
625.
Our
reasoning and analysis was sufficiently set forth in Apple I. Defendant raised the issue of plaintiff’s
standing in its brief. Plaintiff had
the opportunity, but failed, to file a reply brief. See N.C.R. App. P. 28(h) (2004). Plaintiff demonstrated no need to address arguments not
originally raised on appeal. I concur
only in the result reached in the majority’s opinion on rehearing and adhere to
the reasoning set forth in our first opinion.