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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. COA06-1298
NORTH CAROLINA COURT OF APPEALS
Filed: 19 June 2007
BILLY MYERS,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 190011
BBF PRINTING SOLUTIONS (formerly
Wesley Business Forms),
Employer,
SELF-INSURED,
Defendant.
Appeal by defendant from opinion and award entered 13 July
2006 by Commissioner Thomas J. Bolch for the North Carolina Industrial
Commission. Heard in the Court of
Appeals 22 May 2007.
Walden
& Walden, by Daniel S. Walden, for plaintiff-appellee.
Jane
C. Jackson and W. Mark Peck, for defendant-appellant.
TYSON, Judge.
BBF Printing Solutions (“defendant”) appeals from the Full
Commission of the North Carolina Industrial Commission’s (“the Commission”)
opinion and award entered granting Billy Myers (“plaintiff”) permanent total
disability benefits. We affirm in part
and reverse in part.
I.
Background
On 4 June 1979, plaintiff began work for defendant at its
plant in Rural Hall, North Carolina.
Plaintiff’s job duties included setting up and monitoring eleven units
on a seventeen-inch printing press.
On 9 August 2001, plaintiff sustained a work-related injury
to his non-dominant left hand and arm.
Plaintiff was injured while energizing a printing press when a rewind
shaft attached to the press rotated in a different direction than he anticipated. The press pulled his left arm toward it and
twisted his left thumb and wrist.
Plaintiff continued work until his thumb and wrist began to swell. Plaintiff went to a local medical facility,
was given a splint, and returned to work the next day.
Plaintiff continued working for defendant in a limited
capacity until 15 November 2001, when defendant notified its employees the
Rural Hall plant was closing. Defendant
laid off most of its employees, including plaintiff. Plaintiff had been employed as a printing press operator with
defendant for twenty-two years.
On 4 December 2001, plaintiff filed a claim for workers’
compensation benefits. On 20 November
2002, the matter was heard before Deputy Commissioner Nancy W. Gregory. On 15 July 2003, Deputy Commissioner Gregory
entered an opinion and award that concluded plaintiff: (1) suffered an injury by accident to his
left thumb, wrist, hand, and shoulder; (2) failed to prove he was incapable,
because of the injury, to earn the same or greater wages he was receiving at
the date of the injury in the same or any other employment; (3) was not
entitled to receive temporary total or temporary partial disability; and (4)
was entitled to additional medical treatment.
Both plaintiff and defendant appealed to the Full Commission. Defendant failed to file a Form 44
Application for Review with the Commission and did not perfect its appeal.
On 20 January 2004, the matter was heard before the Full
Commission. On 18 January 2005,
plaintiff moved for an award of attorney’s fees pursuant to N.C. Gen. Stat.
§97-88. On 13 July 2006, the Commission
entered an opinion and award that concluded:
(1) plaintiff suffered an injury by accident to his left thumb, arm,
hand, and shoulder arising out of and in the course of his employment with
defendant; (2) plaintiff was entitled to total disability compensation from 15
November 2001 and continuing each week for his lifetime; and (3) defendant
shall pay all of plaintiff’s medical expenses relating to the injury “as long
as said treatment tends to effect a cure, give relief, or lessen the period of
plaintiff’s disability.” The Commission
also awarded plaintiff $2,000.00 in attorney’s fees pursuant to N.C. Gen. Stat.
§97-88. Defendant appeals.
II.
Issues
Defendant argues the Commission erred by: (1) concluding plaintiff is permanently and
totally disabled and (2) awarding plaintiff attorney’s fees.
III.
Standard of Review
Defendant set out thirty-six assignments of error in the
record on appeal. Defendant assigned
error to all but three of the Commission’s thirty-four findings of fact. “Assignments of error not set out in the
appellant’s brief, or in support of which no reason or argument is stated
or authority cited, will be taken as abandoned.” N.C.R. App. P. 28(b)(6) (2007) (emphasis supplied); see Animal
Legal Defense Fund v. Woodley, ___ N.C. App. ___, ___, 640 S.E.2d 777, 779
(2007) (“[W]e will not review defendants’ unargued assignments of error.”).
Our Supreme Court has stated:
[W]hen
reviewing Industrial Commission decisions, appellate courts must examine
“whether any competent evidence supports the Commission’s findings of fact and
whether [those] findings . . . support the Commission’s conclusions of
law.” The Commission’s findings of fact
are conclusive on appeal when supported by such competent evidence, “even though
there [is] evidence that would support findings to the contrary.”
McRae
v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004)
(emphasis supplied) (quoting Deese v. Champion Int’l Corp., 352 N.C.
109, 116, 530 S.E.2d 549, 553 (2000); Jones v. Myrtle Desk Co., 264 N.C.
401, 402, 141 S.E.2d 632, 633 (1965)).
“The full Commission is the sole judge of the weight and credibility of
the evidence[.]” Deese, 352 N.C.
at 116, 530 S.E.2d at 553.
A.
Matters Preserved for Appellate Review
By defendant’s first argument, it argues the Commission
erred by concluding plaintiff was permanently and totally disabled because
there was no competent evidence that:
(1) he was incapable of earning wages in the same employment; (2) he was
incapable of earning the same wages in any other employment; and (3)
plaintiff’s inability to earn the same wages is due to his work-related
injury. Defendant’s argument is the
Commission’s finding of fact number thirty is not supported by competent evidence. The Commission found as fact:
30. Beginning
November 15, 2001, and thereafter, plaintiff has been unable to earn the wages
he was earning at the time of his injury in the same or any other employment
due to his accidental injuries of August 9, 2001.
Within this broad argument, defendant also specifically
argues the Commission’s findings of fact numbered 9, 28, and 34 are not
supported by competent evidence. The
Commission found as fact:
9. Plaintiff
was unable to perform the required normal work duties of a pressman and a
forklift operator for the defendant due to his August 9 injuries during the
period August 9, 2001, through November 14, 2001, when he last worked for the
defendant, which closed its plant on that date and laid off its employees.
. . . .
28. During the
period of December 12, 2001, through May 28, 2003, plaintiff made a diligent
but unsuccessful effort to find employment suitable to his limited work
capacities, that is, suitable to use of his right hand with limited ability to
use his left hand.
. . . .
34. In light of
plaintiff’s advanced age, his high school education level, his work history
primarily as a printing press operator, and his permanent limitation to work
activities using his right hand primarily and his left hand as a gross assist,
plaintiff is entitled to be paid permanent total disability and medical
compensation for his injuries during his lifetime.
Defendant’s assignments of error to the Commission’s other
findings of fact, not argued in its brief, are deemed abandoned. N.C.R. App. P. 28(b)(6) (2007) (“Assignments
of error not set out in the appellant’s brief, or in support of which no reason
or argument is stated or authority cited, will be taken as abandoned.”). The Commission’s findings of fact that
defendant failed to argue in its brief are binding on appeal. See Willen v. Hewson, 174 N.C. App.
714, 718, 622 S.E.2d 187, 190 (2005) (“[D]efendant assigned error to numerous
findings of fact by the trial court, but has failed to argue any of these
assignments of error in her brief on appeal. Such assignments of error are
therefore abandoned, and the trial court’s findings are binding on appeal.”), disc.
rev. denied, 360 N.C. 491, 631 S.E.2d 520 (2006).
Defendant argues the Commission’s finding of fact numbered 9
that “plaintiff was unable to perform the required work duties of a pressman
and a forklift operator for the defendant” was not supported by competent
evidence. We disagree.
The Commission found as fact:
9. Plaintiff
was unable to perform the required normal work duties of a pressman and
a forklift operator for the defendant due to his August 9 injuries during the
period August 9, 2001, through November 14, 2001, when he last worked for the
defendant, which closed its plant on that date and laid off its employees.
(Emphasis
supplied).
Plaintiff worked as a press operator with defendant for
twenty-two years. Plaintiff’s normal
work duties involved “setting up eleven different units on the printing
press.” Plaintiff testified he used his
hands “all day . . . to perform the duties of a press operator” and that the
job required the use of both his left and right hands. Plaintiff also operated a forklift to obtain
his own stock. Plaintiff testified he
used both his left and right hands to operate the forklift.
After plaintiff’s injury, he was restricted to “no
repetitive use” of his left hand. John
Bacon, defendant’s director of manufacturing, testified plaintiff was assigned
job duties “within his restrictions.”
Plaintiff sharpened wheels, operated a forklift to obtain stock for the
pressman, and used a push broom with only his right hand to keep his work area
clean. Plaintiff testified he could not
operate the forklift in his normal manner.
Plaintiff also presented medical evidence he was “unable to
perform the required normal work duties of a pressman and a forklift
operator” from 9 August 2001 through 14 November 2001. Plaintiff presented to Lelia Gentry
(“Gentry”), a physician’s assistant at PrimeCare Occupational Medicine on 9
August 2001. Gentry limited plaintiff
to no repetitive use of his left hand and placed him in a splint. These restrictions continued until October
2001, when plaintiff was referred to an orthopedist.
On 20 August 2001, Gentry ordered physical therapy for
plaintiff. On 6 September 2001, the
therapist noted plaintiff’s overall condition was “worse” and that plaintiff
“used L[eft] hand to pull and had sharp pain in the wrist and now pain up into
elbow.” On 11 September 2001, the
therapist noted: (1) plaintiff’s pain
had “increased” in his left “thumb & radial side of wrist” and (2)
plaintiff “woke this am w/[left shoulder] stiffness, [left] elbow pain &
[left] wrist & thumb.”
The Commission’s finding of fact that “[p]laintiff was
unable to perform the required normal
work duties of a pressman and a forklift operator” from 9 August 2001
through 14 November 2001 is supported by competent evidence. The Commission’s findings of fact are
“conclusive on appeal” when supported by “any competent evidence.” McRae, 358 N.C. at 496, 597 S.E.2d at
700. This assignment of error is
overruled.
C.
Finding of Fact Numbered 28
Defendant also argues the Commission’s finding of fact
numbered 28 is not supported by competent evidence. Defendant asserts the Commission’s conclusive finding that
plaintiff engaged in a diligent job search is not supported by competent
evidence. We disagree.
The Commission found:
28. During the
period of December 12, 2001, through May 28, 2003, plaintiff made a diligent
but unsuccessful effort to find employment suitable to his limited work
capacities, that is, suitable to use of his right hand with limited ability to
use his left hand.
Plaintiff has not earned any wages since 14 November
2001. Plaintiff testified he: (1) applied for employment with seventy-five
different employers; (2) found these potential employers “[i]n classified ads
in the paper, yellow pages, on the internet and places (sic) knew about and
places a friend had told [him] about;” and (3) applied in person to some of the
employers and by mail to others.
Plaintiff also admitted into evidence job search logs from 12 December
2001 to 28 August 2002 and 21 November 2002 to 28 May 2003.
The Commission’s finding that plaintiff engaged in a
diligent job search is supported by competent evidence. The Commission’s findings of fact are
“conclusive on appeal” when supported by “any competent evidence.” McRae, 358 N.C. at 496, 597 S.E.2d at
700. This assignment of error is
overruled.
D.
Findings of Fact Numbered 30 and 34
Defendant also argues the Commission erred by concluding
plaintiff is permanently and totally disabled.
Defendant asserts the Commission’s findings of fact numbered 30 and 34
are not supported by competent evidence and the Commission erred in awarding
plaintiff permanent total disability because he failed to carry his burden to
prove disability set out by our Supreme Court in Hilliard v. Apex Cabinet
Co., 305 N.C. 593, 290 S.E.2d 682 (1982).
We disagree.
1.
Applicable Law
Under North Carolina’s Workers’ Compensation Act, “The term
‘disability’ means incapacity because of injury to earn the wages which the
employee was receiving at the time of injury in the same or any other
employment.” N.C. Gen. Stat.
§97-2(9) (2005) (emphasis supplied).
“In order to obtain compensation under the Workers’ Compensation Act,
the claimant has the burden of proving the existence of his disability and its
extent.” Hendrix v. Linn-Corriher
Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986).
Our Supreme Court has stated:
[I]n order to
support a conclusion of disability, the Commission must find: (1) that
plaintiff was incapable after his injury of earning the same wages he had
earned before his injury in the same employment, (2) that plaintiff was
incapable after his injury of earning the same wages he had earned before his
injury in any other employment, and (3) that this individual’s
incapacity to earn was caused by plaintiff’s injury.
Hilliard, 305 N.C. at
595, 290 S.E.2d at 683 (emphasis supplied) (internal citation omitted).
Here, the Commission made the required finding under Hilliard:
30. Beginning
November 15, 2001, and thereafter, plaintiff has been unable to earn the wages
he was earning at the time of his injury in the same or any other employment
due to his accidental injuries of August 9, 2001.
The
question is whether the plaintiff met his burden to prove all three of these Hilliard
factors. See Coppley v. PPG
Indus., Inc., 133 N.C. App. 631, 635, 516 S.E.2d 184, 187 (1999) (“[T]he
Commission’s findings must sufficiently reflect that [the] plaintiff produced
evidence to prove all three Hilliard factors.”).
2.
Analysis
Defendant argues the Commission erred in finding as fact the
first and second Hilliard elements.
Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. We disagree.
In Russell v. Lowes Product Distribution, this Court
set out four separate and distinct ways a plaintiff could meet his burden to
prove the first two Hilliard factors:
The burden is
on the employee to show that he is unable to earn the same wages he had earned
before the injury, either in the same employment or in other employment. The employee may meet this burden in one
of four ways: (1) the production of medical evidence that he is physically
or mentally, as a consequence of the work related injury, incapable of work in
any employment; (2) the production of evidence that he is capable of some work,
but that he has, after a reasonable effort on his part, been unsuccessful in
his effort to obtain employment; (3) the production of evidence that he is
capable of some work but that it would be futile because of preexisting
conditions, i.e., age, inexperience, lack of education, to seek other
employment; or (4) the production of evidence that he has obtained other
employment at a wage less than that earned prior to the injury.
108
N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (emphasis supplied) (internal
citations omitted).
This Court has also stated:
[T]his Court
has clearly outlined different methods that a plaintiff may employ to prove
total loss of wage-earning capacity, and thus, entitlement to total disability
benefits under N.C. Gen. Stat. §97-29 (1999). See Russell v. Lowes Product Distribution, 108 N.C. App. 762,
425 S.E.2d 454 (1993). One such method is by “the production of evidence that
he is capable of some work, but that he has, after a reasonable effort on his
part, been unsuccessful in his effort to obtain employment.” Id. at 765, 425 S.E.2d at 457.
Zimmerman
v. Eagle Elec. Mfg. Co., 147 N.C. App. 748, 752-53, 556 S.E.2d 678,
680-81 (2001) (Plaintiff met her burden of proving total and permanent
disability through medical testimony “regarding the extent of her physical
limitations” and evidence plaintiff unsuccessfully sought numerous jobs.)
Here, the Commission under the second Russell factor
found:
28. During the period of December 12, 2001, through May 28, 2003, plaintiff made a diligent but unsuccessful effort to find employment suitable to his limited work capacities, that is, suitable to use of his right hand with limited ability to use his left hand.
Here, plaintiff, like the plaintiff in Zimmerman,
satisfied his burden to prove the first two Hilliard factors through
medical testimony “regarding the extent of [his] physical limitations” and
evidence plaintiff unsuccessfully sought numerous jobs. Id.
The Commission found in uncontested findings of fact the extent of
plaintiff’s physical limitations:
12. On April 15,
2002, physical therapist Lois Maple with Dr. Taft’s office, and at Dr. Taft’s
request, evaluated plaintiff’s ability to use his left hand to perform work
duties. This evaluation revealed that plaintiff was limited to using his left
hand as a gross assist to his dominant right hand, due to pain and weakness in
his left hand and arm.
. . . .
17. On November
13, 2002, Dr. Taft saw plaintiff again at defendant’s request and reviewed Dr.
Poehling’s evaluation notes and the bone scan. At that time, Dr. Taft wrote
that in his opinion plaintiff had reached maximum medical improvement with a 25
percent permanent impairment to his left thumb.
. . . .
20. Plaintiff
suffers from the following symptoms due to his injuries of August 9, 2001: (a)
moderate to severe left hand or wrist pain made worse with use; (b) nocturnal
awakenings due to left hand and arm pain; (c) left hand and left thumb
weakness; (d) difficulty using his left hand to handle small objects; (e)
moderate difficulty with activities of daily living due to left hand pain and
weakness; (f) left shoulder and arm pain made worse with use.
21. On April 13,
2004, Dr. Poehling operated on plaintiff’s left thumb, a carpometacarpal fusion
using Acutak screw procedure. The surgery provided significant pain relief at
plaintiff’s CMC joint. By July 22,2004, plaintiff reached maximum medical
improvement concerning his left thumb and hand injuries of August 9, 2001.
Plaintiff’s left hand grip strength is diminished by about 60% due to his
inability to squeeze with his left thumb. Plaintiff has significant loss of
sensation in his left thumb. Plaintiff has suffered a 40% permanent partial
loss to his left hand as a result of his August 9, 2001, injury by accident.
. . . .
25. Plaintiff’s
pain complaints concerning his left hand, left arm, and left shoulder are
genuine. The pain is moderate to severe in intensity and made worse with any
activity.
26. Plaintiff
retains a 7% permanent loss to his left arm as a result of his August 9, 2001,
injury by accident.
Competent evidence also shows plaintiff unsuccessfully
sought numerous jobs. As stated above,
the Commission’s finding of fact twenty-eight is supported by competent
evidence and is “conclusive on appeal.”
McRae, 358 N.C. at 496, 597 S.E.2d at 700.
Plaintiff met his burden of proving total and permanent
disability through medical testimony “regarding the extent of [his] physical
limitations” and evidence plaintiff unsuccessfully sought numerous jobs. Zimmerman, 147 N.C. App. at 752-53,
556 S.E.2d at 680-81. The Commission
properly found in finding of fact number thirty that plaintiff proved the first
and second Hilliard elements. Hilliard,
305 N.C. at 595, 290 S.E.2d at 683.
Defendant’s assignment of error is overruled.
Defendant asserts the Commission erred in finding the second
Hilliard factor that plaintiff is incapable of earning the same wages in
any other employment because the Commission’s finding of fact number
thirty-four is not supported by competent evidence. Id. Defendant
contends no physician has testified plaintiff is not physically capable of
performing work using his left hand. We
disagree.
Like in Zimmerman, defendant is arguing the
Commission erred in finding plaintiff totally and permanently disabled “based
on the assertion that no doctor testified unequivocally that plaintiff is
capable of no work whatsoever.” 147
N.C. App. at 753, 556 S.E.2d at 681.
“Defendant[] appear[s] to be
assuming that the only way to prove total disability is by medical
evidence.” Id. at 752, 556
S.E.2d at 681. As stated above,
plaintiff met his burden of proving total and permanent disability through
medical testimony “regarding the extent of [his] physical limitations” and
evidence plaintiff unsuccessfully sought numerous jobs. Id. at 752-53, 556 S.E.2d at
680-81. Defendant’s assignment of error
is overruled.
Defendant also argues the Commission erred in finding as fact
the third Hilliard element that plaintiff’s “incapacity to earn was
caused by plaintiff’s injury.” 305 N.C.
at 595, 290 S.E.2d at 683. Defendant
asserts “plaintiff’s failure to obtain a new printing job is due to the dearth
of jobs available in the printing industry.”
We disagree.
In part of finding of fact thirty-two, the Commission found
as fact:
32. . . .
Plaintiff has been very diligent in his job search activities and in his
efforts to overcome defendant’s resistance to providing him with the medical
care he needs. The Full Commission finds as contrary to fact defendant’s
position that plaintiff’s inability to obtain employment is the same as it is
for any of the other press operator[s] laid off by [defendant] in November 2001
-- the general economic downturn which struck [defendant] and the printing
industry in general.
The Commission’s uncontested finding of fact is supported by
competent evidence and is “conclusive on appeal.” McRae, 358 N.C. at 496, 597 S.E.2d at 700. Defendant’s assignment of error is
overruled.
Plaintiff met his burden to prove all three of these Hilliard
factors. Coppley, 133 N.C.
App. at 635, 516 S.E.2d at 187; Hilliard, 305 N.C. at 595, 290 S.E.2d at
683. The Commission’s findings are
supported by competent evidence and the findings support the conclusion of law
plaintiff is entitled to total disability compensation benefits.
V.
Attorney’s Fees
Defendant also properly assigned error to and argues the
Commission’s award of plaintiff’s attorney fees pursuant to N.C. Gen. Stat.
§97-88 (2005). Defendant asserts the
Commission could not award plaintiff his attorney fees pursuant to N.C. Gen. Stat. §97-88 because it never
pefected its appeal to the Commission and the issues on appeal before the
Commission were brought exclusively by plaintiff. We agree.
The Commission stated in its award to plaintiff:
5. The costs
shall include a $2,000.00 reasonable attorney’s fee to be paid to plaintiff’s
counsel by defendant pursuant to N.C. Gen. Stat. §97-88. Defendant appealed and
the Full Commission by this Opinion and Award orders compensation to be paid to
plaintiff.
N.C. Gen. Stat. §97-88 states:
If 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’s fee to be determined by the Commission shall be paid by
the insurer as a part of the bill of costs.
Our
Supreme Court has stated, “It is clear that this section of the statute is
applicable only when such hearings or proceedings are brought by the
insurer and the court orders the insurer to make or to continue payments of
compensation to the injured employee.” Bowman
v. Chair Co., 271 N.C. 702, 705, 157 S.E.2d 378, 380 (1967) (emphasis
supplied).
Here, plaintiff initially noticed appeal of Deputy Gregory’s opinion and award to the Commission, by giving notice of his request for review by the Commission in a letter dated 15 July 2003. Defendant filed its notice of appeal to the Commission on 29 July 2003. Defendant did not file a Form 44 Application for Review with the Commission and never perfected nor pursued its appeal. All issues before and addressed by the Commission “at a hearing on review” were solely the issues plaintiff appealed. N.C. Gen. Stat. §97-88.
The Commission in its opinion and award stated, “Defendant
abandoned its appeal by failing to state with particularity the specific
grounds of its appeal[.]” All “hearings
or proceedings” before the Commission “at a hearing on review” were brought
solely by plaintiff, not defendant. Bowman,
271 N.C. at 705, 157 S.E.2d at 380; N.C. Gen. Stat. §97-88. The Commission erred by awarding attorney
fees to “be paid by the insurer” pursuant to N.C. Gen. Stat. §97-88. The Commission’s award of attorney’s fees is
erroneous and is reversed.
The dissenting opinion asserts plaintiff is entitled to
attorney’s fees before the Commission and cites cases where this Court has
ordered attorney’s fees to be paid and remanded the Commission for a
determination of the appropriate amount of fees. None of those cases cited therein apply to the issue before us. On 14 February 2007, plaintiff moved this
Court for costs and an award of attorney’s fees pursuant to N.C.R. App. P.
34(a) and N.C. Gen. Stat. §97-88. By
order entered 22 May 2007, this panel of judges unanimously denied plaintiff’s
motion.
VI.
Conclusion
Plaintiff met his burden to prove all three of these Hilliard
factors. Coppley, 133 N.C.
App. at 635, 516 S.E.2d at 187; Hilliard, 305 N.C. at 595, 290 S.E.2d at
683. The Commission’s findings are
supported by competent evidence and the findings support the conclusion of law
plaintiff is entitled to total disability compensation benefits.
The “hearings or proceedings” before the Commission were
brought by plaintiff, not defendant. Bowman,
271 N.C. at 705, 157 S.E.2d at 380. The
Commission erred by awarding attorney’s fees pursuant to N.C. Gen. Stat.
§97-88. The Commission’s award of
attorney’s fees is reversed.
Affirmed in Part and Reversed in Part.
Judge CALABRIA concurs.
Judge WYNN concurs in part and dissents in part by separate
opinion.
NO. COA06-1298
NORTH CAROLINA COURT OF APPEALS
Filed: 19 June 2007
BILLY MYERS,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 190011
BBF PRINTING SOLUTIONS (formerly
Wesley Business Forms),
Employer,
SELF-INSURED,
Defendant.
WYNN,
Judge, concurring in part and dissenting in part.
I concur with the majority in affirming the Full
Commission’s award of total disability benefits to Mr. Myers. However, because I conclude that BBF
Printing Solutions’s abandonment of its appeal does not altogether negate its
existence, I would affirm the Commission’s award of attorney’s fees to Mr.
Myers. From that portion of the
majority’s opinion, I therefore respectfully dissent.
North Carolina General Statute §97-88 refers to the
Industrial Commission’s “find[ing] that such hearing or proceedings were brought
by the insurer” as a necessary step to ordering the insurer to pay attorney’s
fees in an appeal from an award by the Commission. N.C. Gen. Stat. §97-88 (2005).
This Court has clarified that attorney’s fees could be awarded under
Section 97-88 “if (1) the insurer has appealed a decision to the full
Commission or to any court, and (2) on appeal, the Commission or court has
ordered the insurer to make, or continue making, payments of benefits to the
employee.” Estes v. N.C. State Univ.,
117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994) (emphasis added). Moreover, we have also concluded that
Section 97-88 “permits the Full Commission or an appellate court to award fees
and costs based on an insurer’s unsuccessful appeal.” Rackley v. Coastal Painting, 153 N.C.
App. 469, 475, 570 S.E.2d 121, 125 (2002) (emphasis added).
Additionally, we have previously held that the statutory
requirements of N.C. Gen. Stat. §97-88 are met when the defendant appeals the
Full Commission’s award of benefits to this Court, and this Court affirms the
award. Brown v. Public Works Comm’n,
122 N.C. App. 473, 477, 470 S.E.2d 352, 354 (1996). In our own discretion, we have ordered attorney’s fees to be paid
in a number of such cases, generally remanding to the Full Commission for a
determination of the appropriate amount of fees. See, e.g., Brooks v. Capstar Corp., 168 N.C. App.
23, 30-31, 606 S.E.2d 696, 701, appeal dismissed, 360 N.C. 60, 621
S.E.2d 170 (2005); Cox v. City of Winston-Salem, 157 N.C. App. 228, 238,
578 S.E.2d 669, 677 (2003); Brown, 122 N.C. App. at 477, 470 S.E.2d at
354; Estes, 117 N.C. App. at 129, 449 S.E.2d at 765 (1994); Poplin v.
PPG Indus., 108 N.C. App. 55, 57-58, 422 S.E.2d 353, 355 (1992).
Here, BBF Printing Solutions did, in fact, appeal Deputy
Commissioner Gregory’s award of medical compensation to Mr. Myers; however,
their failure to “state with particularity the specific grounds” of the appeal
then led to its being dismissed as abandoned.
Moreover, the Full Commission noted that, even though BBF Printing
Solutions had abandoned their appeal, the company also “continued to delay
medical treatment.” In its final
Opinion and Award, the Full Commission again ordered BBF Printing Solutions to
pay the expenses related to the medical treatment of Mr. Myers’s compensable
injury.
Thus, under the plain language of previous precedents of
this Court, BBF Printing Solutions “has appealed” to the Full Commission, and
the Commission, in turn, “ordered the insurer to make, or continue making,
payments of benefits to the employee.” Estes,
117 N.C. App. at 128, 449 S.E.2d at 764.
Our decision here, affirming the Full Commission, likewise orders BBF
Printing Solutions to “make, or continue making, payments of benefits” to Mr.
Myers. The appeal by BBF Printing Solutions
to the Full Commission was abandoned, not withdrawn, and their appeal to this
Court failed; both were therefore “unsuccessful appeal[s].” See Rackley, 153 N.C. App. at 475, 570
S.E.2d at 125. Accordingly, Mr. Myers
should be entitled to attorney’s fees if so ordered by the Full Commission.[Note
1] I would therefore affirm the
Full Commission’s award.
1. I
note, too, that we review an award of attorney’s fees by the Full Commission
for an abuse of discretion. See
Taylor v. J.P. Stevens Co., 307 N.C. 392, 394, 298 S.E.2d 681, 683
(1983) (“In the absence of an abuse of discretion the Commission’s denial of
attorneys’ fees will not be disturbed.”).
Given the Commission’s conclusion that BBF Printing Solutions abandoned
its appeal yet “continued to delay medical treatment” for Mr. Myers, I see no
abuse of discretion in their decision to award attorney’s fees to Mr. Myers.