in the Court of Appeals 20 September 2017.
by plaintiff and defendants from Opinion and Award entered 7
December 2016 by the North Carolina Industrial Commission No.
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,
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
and Procedural Background
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'
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
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.
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
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.
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.
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).
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).
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)).
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
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).
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.
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 ...