Todd Hurley (“plaintiff’) appeals and Wal-Mart Stores, Inc., Insurance Company of the State of Pennsylvania, and Claims Management, Inc. (referred to collectively as “defendants”) cross-appeal from an opinion and award of the full commission awarding past and future healthcare expenses for plaintiff’s compensable knee injury and attorney’s fees and the order denying their motion for reconsideration. For the following reasons, we reverse the 4 May 2011 opinion and award of the full commission, as it failed to address the issues presented by the defendants’ appeal from the order of the deputy commissioner, and we remand to the full commission for further proceedings.
I. Background
The uncontested findings in the full commission’s opinion and award establish that on 30 October 2008, plaintiff was working as a
co-manager at defendant Wal-Mart’s store in Greensboro, North Carolina, when he was escorting an alleged shoplifter to the store’s loss-prevention area. As plaintiff was walking beside the woman holding her by the right arm, she “jerked aggressively to the left[.]” Plaintiff felt sharp pain in his left knee, and his “left knee buckled inward, and he went down to the floor.” Immediately after, plaintiff also “felt slight pain in his right knee” which “got progressively worse
4. Within 15 days of her receipt of this Opinion and Award, Plaintiff’s counsel should submit to the undersigned a petition for an attorney’s fee and proposed Order pursuant to the provisions of N.C. Gen. Stat. § 97-90(c). Among the other documentation required pursuant to said provisions, Plaintiff’s counsel should provide an itemization of the time spent by her and her staff on this claim. Thereafter, the undersigned will file an Order setting Plaintiff’s attorney’s fee.
Defendants were also ordered to pay costs including an expert witness fee. Plaintiff’s counsel submitted an affidavit showing that the firm had spent “approximately 44 hours” on his case, which amounted to a total of $6,350.00 in attorney’s fees. By order entered 12 October 2010, the deputy commissioner awarded plaintiff’s counsel $5,500.00 in attorney’s fees to be paid by defendants.
On 14 October 2010, defendants filed notice of appeal to the full commission. The Form 44 filed by defendants identified two issues for appeal to the full commission:
1. Conclusion of Law No. 8 is contrary to law, is not supported by the findings of fact, and is contrary to the competent and credible evidence of record. Without exclusion, the findings of fact and competent and credible evidence of record do not support a conclusion that Plaintiff is entitled to any attorneys’ fees to be paid by Defendants.
2. Award No. 4, as well as the Order dated October 12, 2010 awarding Plaintiffs attorney’s fees are each contrary to law, not supported by the findings of fact, and contrary to the competent and credible evidence of record.
The full commission in its opinion and award affirmed, with some modifications, the deputy commissioner’s opinion and award. Specifically, the full commission affirmed the deputy’s conclusion that plaintiff’s right knee condition was a compensable injury and the award of payment for past and future medical treatment of that condition. As to attorney’s fees, the full commission concluded:
9. Defendants have not defended this claim without reasonable grounds, and Plaintiff is thus not entitled to attorney’s fees under N.C. GEN. STAT. § 97-88.1.
10. Plaintiff’s counsel is entitled to recover attorney’s fees pursuant to N.C. GEN. STAT. § 97-88.
In its award, the full commission stated:
4. Within 15 days of receipt of this Opinion and Award, Plaintiff’s counsel should submit to the Full Commission an affidavit of time spent defending this appeal before the Full Commission pursuant to the provisions of N.C. GEN. STAT. § 97.88. Thereafter, the undersigned will file an Order setting Plaintiff’s attorney’s fee.
The full commission made no mention of the deputy’s award of attorney’s fees pursuant to N.C. Gen. Stat. § 97-90(c). On 13 May 2011, defendants filed a motion to reconsider the full commission’s 4 May 2011 opinion and
II. Defendants’ appeal
We begin with defendants’ appeal, as it addresses the first award of attorney’s fees, for the plaintiff’s representation at the deputy commissioner hearing level. Defendants contend that as a matter of law attorney’s fees pursuant to N.C. Gen. Stat. § 97-88 were in error because (1) “[defendants did not appeal any of the [deputy commissioner’s] awards relating to compensability or benefits from the Deputy Commissioner’s Opinion and Award” as defendants had accepted the deputy commissioner’s decision and had begun payment of medical compensation for treatment of plaintiff’s right knee; (2) the only issue they appealed was the award of attorney’s fees pursuant to N.C. Gen. Stat. § 97-90(c); and (3) they were successful in their appeal of that one issue as the full commission reversed the deputy commissioner’s award of attorney’s fees pursuant to N.C. Gen. Stat. § 97-90(c). Plaintiff counters that the full commission acted well within its authority in awarding attorney’s fees pursuant to N.C. Gen. Stat. § 97-88.
As defendants contend that the full commission made an error of law, we apply a
de novo
review.
See Salomon v. Oaks of
Carolina, _ N.C. App. _, _,
(2) After receipt of notice of appeal, the Industrial Commission will supply to the appellant a Form 44 Application for Review upon which appellant must state the grounds for the appeal. The grounds must be stated with particularity, including the specific errors allegedly committed by the Commissioner or Deputy Commissioner and, when applicable, the pages in the transcript on which the alleged errors are recorded. Failure to state with particularity the grounds for appeal shall result in abandonment of such grounds, as provided in paragraph (3). Appellant’s completed Form 44 and brief must be filed and served within 25 days of appellant’s receipt of the transcript or receipt of notice that there will be no transcript, unless the Industrial Commission, in its discretion, waives the use of the Form 44. The time for filing a notice of appeal from the decision of a Deputy Commissioner under these rules shall be tolled until a timelymotion to amend the decision has been ruled upon by the Deputy Commissioner.
(3) Particular grounds for appeal not set forth in the application for review shall be deemed abandoned, and argument thereon shall not be heard before the Full Commission.
Workers’ Comp. R. of N.C. Indus. Comm’n 701 (emphasis added).
Instead of addressing the one issue which was clearly predeputy commissioner’s award of attorney’s full commission’s opinion and award stated the issues raised by the appeal as follows:
1. Whether Plaintiff’s right knee condition is compensable in this claim?
2. If so, to what compensation is Plaintiff entitled?
3. Whether Plaintiff should be compelled to execute an Industrial Commission Form 26A, Employer’s Admission of Employee’s Right to Permanent Partial Disability, for his compensable left knee injury?
(Emphasis in original.) The full commission also stated that it “reviewed the prior Opinion and Award based upon the record of the proceedings before the Deputy Commissioner and the briefs and arguments of the parties. The appealing party has not shown good grounds to reconsider the evidence, receive further evidence, or rehear the parties or their representatives.” The above statement of the issues raised by the appeal is baffling, as defendants clearly did not appeal any issue of compensability of plaintiffs injury. The full commission addressed only issues that were not appealed and ignored the one issue which was appealed, which was the deputy commissioner’s award of attorney’s fees under N.C. Gen. Stat. § 97-90.
The full commission does not have the authority to waive or violate its own rules.
See Roberts v. Wal-Mart Stores, Inc.,
We further note that N.C. Gen. Stat. § 97-85 (2009), in pertinent part, states that
[i]f application is made to the Commission within 15 days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award[.]
Here, defendants appealed to the full commission but, as noted above, the only issues raised in their Form 44 were related to the deputy commissioner’s award of attorney’s fees pursuant to N.C. Gen. Stat. § 97-90; defendants did not challenge any of the deputy commissioner’s findings or conclusions regarding plaintiff’s compensable injury to his right knee or the award of payment for treatment for that condition and, therefore, those determinations of the Deputy
Commissioner were not at issue and were
not
before the full commission for review. We have stated that “[w]hen the matter is ‘appealed’ to the full Commission pursuant to G.S. 97-85, it is the duty and responsibility of the full Commission to decide all of the matters in controversy between the parties.”
Vieregge v. N.C. State University,
Understandably, defendants made a motion to reconsider before the full commission regarding its omission of a determination
We note that under N.C. Gen. Stat. § 97-90(c), the issue of attorney’s fees arising from an opinion and award of the full commission would be appealable to the superior court, and thus would be subject to dismissal if appealed directly to this Court instead of the superior court. In
Creel v. Town of Dover,
[h]ad he or his attorney brought the matter to the superior court in the manner set out in G.S. § 97-90, the Commission would thereby have been compelled to explain its failure to award counsel fees. Perhaps, as plaintiff claims, the Commission neglected to do so because of mere oversight. Whatever the explanation for the Commission’s omission, however, neither plaintiff nor his attorney complied with G.S. § 97-90. Plaintiff’s appeal of the Commission’s decision (or lack thereof) as to counsel fees is therefore dismissed.
Id. In contrast, here, plaintiff did address the issue of the award of attorney’s fees pursuant to N.C. Gen. Stat. § 97-90(c) before the deputy commissioner; the deputy commissioner awarded attorney’s fees; defendants appealed the attorney’s fees specifically in their Form 44 and requested that this issue be addressed in their motion for reconsideration. Despite the efforts of both parties to have the full commission rule upon the issue, the full commission failed to make any findings or conclusions regarding the attorney’s fees ordered by the deputy commissioner pursuant to N.C. Gen. Stat. § 97-90(c). Thus, instead of dismissing the appeals of both parties, both of whom complied with the workers’ compensation rules in their attempts to have the full commission address the issue of attorney’s fees, we must instead reverse the opinion and award and remand for consideration of the issue actually raised on defendant’s appeal to the full commission, the award of attorney’s fees under N.C. Gen. Stat. § 97-90. For this reason, we are unable to address the legal arguments of either party as to the awards of attorney’s fees under either N.C. Gen. Stat. §§ 97-90 or 97-88, as neither the full commission nor the superior court has addressed these issues as required by statute.
REVERSED AND REMANDED.