THOMAS F. ADCOX, Employee, Movant,
CLARKSON BROTHERS CONSTRUCTION COMPANY, Employer, and UTICA MUTUAL INSURANCE COMPANY, Carrier, Defendants
Heard in the Court of Appeals 28 August 2014.
REVERSED AND REMANDED.
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.
GEER, Judge. Judges STEELMAN and ROBERT N. HUNTER, JR. concur.
Appeal by plaintiff from order entered 17 September
2013 by Judge Thomas H. Lock in Johnston County Superior Court, Johnston County,
No. 13 CVS 1106. Petition for rehearing granted 13 November 2014. The following opinion supersedes and replaces the opinion filed 16 September 2014.
In a 27 March 2008 Opinion and Award, the deputy commissioner approved an attorneys' fee of 25% of the attendant care compensation awarded to plaintiff Thomas F. Adcox for his wife's 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's 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' fee award.
Subsequently, plaintiff filed a motion seeking an order requiring that the 25% be paid directly to plaintiff's 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's November 2008 Opinion and Award, by not specifically mentioning the attorneys' fees, necessarily denied plaintiffs attorneys' 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.
We cannot agree with the Commission's and defendants' position that the November
2008 Opinion and Award denied plaintiffs attorneys' request for fees. Defendants' contention that the Commission sub silentio reversed the deputy commissioner's award of fees is not tenable and is inconsistent with controlling authority. The Commission's silence in November 2008 on the issue of the deputy commissioner's award of an attorneys' 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.
In either event, defendants bore the burden to appeal that Opinion and Award to this Court. When they failed to do so, the deputy commissioner's approval of an attorneys' fee became the law of the case, and the Commission had no authority to declare, in December 2012, that the original panel had sub silentio reversed the deputy commissioner and denied plaintiffs request for approval of an attorneys' fee. Consequently, we reverse and remand to the trial court for further remand to the Commission for reconsideration of plaintiffs motion.
On 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.
In 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's family members, including his wife Joyce Adcox, from 28 February 1983 until 3 February 2003. The Commission approved a 25% attorneys fee for plaintiff's counsel, which was deducted from the sum due plaintiff and paid directly to plaintiff's 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.
In 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 " [a]n attorneys' fee of 25% of the attendant care compensation is approved for the Plaintiff's counsel."
Both parties appealed to the Full Commission. On 25 November 2008, the Full Commission entered an Opinion and Award affirming the deputy commissioner's Opinion and Award " with modifications including the amount of attendant care and rate of pay for said care." 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' fee award to plaintiff's counsel. Plaintiff appealed to this Court for reasons unrelated to the 25% attorneys' 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) (unpublished).
On 12 July 2012, plaintiff filed a motion with the Full Commission requesting that it direct payment of the attorneys fees to plaintiff's counsel. The motion explained that " Mrs. 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's attendant care income is higher than it actually is." Plaintiff requested that defendants be ordered to deduct 25% of the compensation payable to Mrs. Adcox to be paid directly to plaintiff's counsel because the record keeping " has become burdensome for Mrs. Adcox."
A new panel of commissioners heard plaintiff's 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's motion.
The Commission found that both parties had appealed Deputy Commissioner DeLuca's Opinion and Award to the Full Commission. Regarding defendants' appeal, the Commission noted that although defendants had not specifically assigned error to the attorneys fee award in their form 44, they had generally challenged each paragraph of the deputy commissioner's award and had addressed the 25% attorneys' fee award in their brief to the Commission. The Commission then concluded:
The Full Commission's 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 ...