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Hall v. U.S. Xpress, Inc.

Court of Appeals of North Carolina

December 5, 2017

HARRISON HALL, Employee-Plaintiff,
v.
U.S. XPRESS, INC., Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants.

          Heard in the Court of Appeals 20 September 2017.

         Appeal by plaintiff and defendants from Opinion and Award entered 7 December 2016 by the North Carolina Industrial Commission No. 13-717855.

          R. James Lore, Attorney at Law, and Law Office of James S. Aven, by James S. Aven, for plaintiff-appellee, cross-appellant.

          Hedrick Gardner Kincheloe & Garofalo, LLP, by Matthew J. Ledwith and M. Duane Jones, for defendant-appellants, cross-appellees.

          ZACHARY, JUDGE.

         U.S. Xpress, Inc. (defendant, with Liberty Mutual Insurance Company, collectively, defendants) appeals from an opinion and award of the North Carolina Industrial Commission that awarded Harrison Hall (plaintiff) workers' compensation benefits. Defendants argue that the Commission lacked subject matter jurisdiction over plaintiff's claim for workers' compensation benefits, and that the Commission erred by awarding plaintiff benefits for attendant care that was provided prior to the date upon which plaintiff filed an Industrial Commission Form 18, and by sanctioning defendants. Plaintiff has filed a cross-appeal in which he argues that the Commission erred by limiting the award of attendant care to eight hours per day, by failing to continue a per diem allowance defendants had previously paid to plaintiff and his wife, and by requiring plaintiff to contribute $400 per month toward the rental of a handicapped-accessible apartment. We conclude that the Commission's opinion and award should be affirmed.

         Factual and Procedural Background

         The pertinent facts are largely undisputed. Plaintiff was born in 1959 and was 56 years old at the time of the hearing on this matter. In 1999, plaintiff began working as a long distance truck driver for defendant, a trucking company based in Tennessee. Plaintiff was living in Fayetteville, North Carolina, at that time. On 5 July 2002, while plaintiff was delivering merchandise in North Carolina, he was pinned between his delivery truck and another vehicle. Defendants have not disputed that this was an injury by accident arising from his employment with defendant, or that "plaintiff sustained injury to his back and right leg during the performance of his job duties for defendant-employer. . . ." Following the accident that injured plaintiff, defendants reported the accident to the legal entity that administers the Tennessee Workers' Compensation Act. Since 6 July 2002, defendants have voluntarily paid workers' compensation wage loss benefits of $463.30 per week to plaintiff, pursuant to the Tennessee Workers' Compensation Act.

         In addition to weekly indemnity payments, defendants have paid workers' compensation medical benefits of approximately $8, 406, 832.00 for treatment of the injuries plaintiff suffered in the accident, pursuant to the Tennessee Workers' Compensation Act and fee schedule. Plaintiff was initially treated by medical providers in North Carolina; he later moved to West Virginia, in order to receive assistance from his girlfriend, who is now his wife. In 2004, defendants transferred plaintiff's medical care from West Virginia to Boston, Massachusetts, where plaintiff and his wife were residing at the time of the hearing on his claim. Unfortunately, despite receiving medical care, plaintiff has continued to suffer serious health problems. As a result of the accident in 2002, plaintiff has had approximately 390 surgical procedures, including amputation of his right leg. Because plaintiff's leg was amputated up to his buttock, he is not a candidate for a prosthetic leg. He has also suffered from kidney failure, which makes him dependent upon dialysis, as well as other medical problems, including diabetes, elevated cholesterol levels, dental problems, and depression.

         Between the date of plaintiff's accident and 2013, defendants provided workers' compensation medical and indemnity benefits to plaintiff pursuant to the Tennessee Workers' Compensation Act. As part of the agreement between plaintiff and defendants for the transfer of plaintiff's medical care to Boston, defendants agreed to pay plaintiff and his wife each a $25.00 per diem allowance for meals. In 2011, defendants discontinued payment of the per diem allowance, and plaintiff learned that his workers' compensation benefits had been paid under Tennessee's, rather than North Carolina's, workers' compensation law. On 8 April 2013, plaintiff filed Industrial Commission Form 18 with the North Carolina Industrial Commission, seeking workers' compensation medical and indemnity benefits. Defendants then filed Industrial Commission Form 19 reporting plaintiff's accident to the North Carolina Industrial Commission on 23 April 2013. On 2 May 2013, defendants filed Industrial Commission Form 61, asserting that the Industrial Commission lacked jurisdiction over plaintiff's claim. In response, plaintiff filed Industrial Commission Form 33 requesting that his claim be heard by the Commission.

         The parties agreed to a bifurcated proceeding, in which a hearing on the issue of subject matter jurisdiction was conducted prior to a hearing on plaintiff's entitlement to workers' compensation benefits. Following a videoconference conducted in February of 2014, Deputy Commissioner Stephen T. Gheen entered an opinion on 12 January 2015, concluding that the Industrial Commission had jurisdiction over plaintiff's claim. Deputy Commissioner Gheen entered a modified order on 10 February 2015, making minor changes to his original order. On 25 February 2015, defendants gave notice of their appeal from the Deputy Commissioner's order.

         Additional proceedings by the Commission addressed the issue of plaintiff's claim for workers' compensation medical and indemnity benefits. On 29 October 2015, an interlocutory opinion and award was entered by Deputy Commissioner J. Brad Donovan in which he incorporated the order entered by Deputy Commissioner Gheen, noting that it was "favorable to the plaintiff on the issue of jurisdiction. . . ." This order left open the calculation of certain benefits. On 8 January 2016, Deputy Commissioner Donovan entered an order finalizing the award and otherwise incorporating his earlier order awarding plaintiff workers' compensation medical and indemnity benefits. Plaintiff appealed to the Full Commission for review of aspects of the award of benefits, and defendants appealed to the Full Commission, challenging the Commission's subject matter jurisdiction as well as certain parts of Deputy Commissioner Donovan's award.

         The case was heard by the Full Commission on 23 June 2016. On 7 December 2016, the Commission, by means of an order entered by Commissioner Bill Daughtridge, Jr. with the concurrence of Commissioners Bernadine S. Ballance and Tammy Nance, awarded plaintiff certain workers' compensation medical and indemnity benefits. The specific provisions of the Commission's order are discussed below, as pertinent to the issues raised by the parties on appeal. Plaintiff and defendants entered timely notices of appeal to this Court from the Commission's opinion and award.

         Standard of Review

         "Generally, appellate review of the Commission's decisions is limited to 'whether any competent evidence supports the Commission's findings of fact and whether [those] findings . . . support the Commission's conclusions of law.' " Burley v. U.S. Foods, Inc., 368 N.C. 315, 317, 776 S.E.2d 832, 834 (2015) (quoting McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004)). In addition, "[b]ecause the Industrial Commission is the sole judge of the credibility of the witnesses and the weight of the evidence[, w]e have repeatedly held that the Commission's findings of fact are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary." Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 423, 760 S.E.2d 732, 738 (2014) (internal quotation omitted).

         "On appeal, this Court may not reweigh the evidence or assess credibility. Findings of fact may be set aside on appeal only when there is a complete lack of competent evidence to support them[.]" Kelly v. Duke Univ., 190 N.C.App. 733, 738-39, 661 S.E.2d 745, 748 (2008) (internal quotation omitted). Findings that are not challenged on appeal are "presumed to be supported by competent evidence" and are "conclusively established on appeal." Johnson v. Herbie's Place, 157 N.C.App. 168, 180, 579 S.E.2d 110, 118 (2003) (citation omitted). The "Commission's conclusions of law are reviewed de novo." McRae, 358 N.C. at 496, 597 S.E.2d at 701 (citation omitted).

         The Industrial Commission's findings regarding subject matter jurisdiction are subject to a different standard:

"The finding of a jurisdictional fact by the Industrial Commission is not conclusive upon appeal even though there be evidence in the record to support such finding. The reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record." . . . This Court makes determinations concerning jurisdictional facts based on the greater weight of the evidence.

Capps v. Southeastern Cable, 214 N.C.App. 225, 226-27, 715 S.E.2d 227, 229 (2011) (quoting McCown v. Hines, 353 N.C. 683, 686, 549 S.E.2d 175, 177 (2001)).

         Appeal by Defendants

         Subject Matter Jurisdiction

         Defendants argue first that the Industrial Commission lacked subject matter jurisdiction over plaintiff's claim for workers' compensation benefits. Defendants contend that plaintiff's claim was barred by the provisions of N.C. Gen. Stat. § 97-24 (2016). This statute provides in relevant part that:

(a) The right to compensation under this Article shall be forever barred unless (i) a claim . . . is filed with the Commission or the employee is paid compensation as provided under this Article within two years after the accident or (ii) a claim . . . is filed with the Commission within two years after the last payment of medical compensation when no other compensation has been paid and when the employer's liability has not otherwise been established under this Article.

         In this case, plaintiff did not file a claim with the North Carolina Industrial Commission within two years of his accident, and thus jurisdiction is not proper under N.C. Gen. Stat. § 97-24(a)(i). The jurisdictional dispute between the parties is whether plaintiff filed a claim "within two years after the last payment of medical compensation when no other compensation has been paid and when the employer's liability has not otherwise been established under this Article, " as specified in § 97-24(a)(ii). "Under section 97-24(a)(ii), a plaintiff must show that: (1) his claim was filed within two years after the last payment of 'medical compensation, ' (2) no 'other compensation' was paid, and (3) the employer's liability has not otherwise been established under the Act." Clark v. Summit Contrs. Group, Inc., 238 N.C.App. 232, 235, 767 S.E.2d 896, 898-99 (2014).

         The facts of Clark are comparable to those of the instant case. In Clark, this Court held that "the record clearly shows that [the] defendants' liability had not otherwise been established under the Act because [the] defendants had not been held liable for [the] plaintiff's injuries pursuant to a North Carolina workers' compensation claim[.] . . . Thus, the third element is satisfied." Id. The same is true in this case; when plaintiff filed Industrial Commission Form 18, defendants' liability had not been determined pursuant to a North Carolina workers' compensation claim. The Clark opinion explained that "whether [the] plaintiff can satisfy the remaining two elements of N.C. Gen. Stat. § 97-24(a)(ii) turns on this Court's understanding of the terms 'medical compensation' and 'other compensation' as they are contemplated within the North Carolina Workers' Compensation Act." Clark, 238 N.C.App. at 235, 767 S.E.2d at 899.

          N.C. Gen. Stat. § 97-2 (2016) sets out the legal definition of various terms "[w]hen used in this Article, unless the context otherwise requires[.]" These definitions include, as relevant to this appeal, the following:

(11) Compensation. -- The term "compensation" means the money allowance payable to an employee or to his dependents as provided for in this Article, and includes funeral benefits provided herein.
(19) Medical Compensation. -- The term "medical compensation" means medical, surgical, hospital, nursing, and rehabilitative services, including, but not limited to, attendant care services prescribed by a health care provider authorized by the employer or subsequently by the Commission, vocational rehabilitation, and medicines, sick travel, and other treatment, including medical and surgical supplies, as may reasonably be required to effect a cure or give relief and for such ...

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