219 N.C. App. 607
N.C. Ct. App.2012Background
- Plaintiff Hurley sustained a left knee injury at Wal-Mart on 30 October 2008; right knee pain developed and later deemed compensable.
- Defendants accepted left knee injury but denied compensability of right knee injury arising from same incident.
- Deputy Commissioner awarded compensability for right knee and medical treatment; awarded attorney's fees under § 97-90(c) to plaintiff’s counsel.
- Full Commission affirmed the right knee award but denied addressing deputy’s § 97-90(c) fee award; did not discuss § 97-88 or 97-90(c) findings.
- Defendants appealed to the Full Commission; Plaintiff cross-appealed; issues centered on attorney’s fees and which fee statute applied; court remanded for proper consideration of § 97-90(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Full Commission erred by not addressing the deputy’s § 97-90(c) attorney’s fees. | Hurley; Full Commission should decide § 97-90(c) fee issue. | Wal-Mart; appeal limited to § 97-90(c) issue; Full Commission exceeded scope. | Reversed and remanded to address § 97-90(c) fees. |
| Whether the Full Commission violated Rule 701 by addressing non-appealed compensability issues. | Hurley; only fees issues were appealed. | Wal-Mart; Full Commission can review all matters in controversy. | Remanded for proper resolution of the appealed issue; other issues vacated. |
| Whether defendants complied with proper appellate procedures under G.S. 97-85 and related rules. | Hurley; proper grounds were raised. | Wal-Mart; grounds for appeal not properly stated. | Full Commission erred by exceeding its statutory authority; case remanded. |
Key Cases Cited
- Vieregge v. N.C. State Univ., 105 N.C.App. 633 (1992) (full commission must decide all matters in controversy upon appeal)
- Roberts v. Wal-Mart Stores, Inc., 173 N.C.App. 740 (2005) (full commission cannot waive its own rules; need particularity of grounds for appeal)
- Creel v. Town of Dover, 126 N.C.App. 547 (1997) (appeal of counsel fees under § 97-90 must be properly pursued )
- Palmer v. Jackson, 157 N.C.App. 625 (2003) (attorney's fees under § 97-90(c) referenced in deputy award)