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Pearson v. C. P. Buckner Steel Erection8/1/2000
Appeal by intervenor from an opinion and award entered 3 June 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 May 2000.
The present appeal is the result of an opinion and award of the North Carolina Industrial Commission ("Commission") entered on 3 June 1999 due to a remand from our Supreme Court in Pearson v. C. P. Buckner Steel Erection Co., 348 N.C. 239, 498 S.E.2d 818 (1998), which contains a full review of the facts and procedural history of this case -- most of which is unnecessary to resolve this appeal. In the present appeal, the intervenor Cary Health Care Center, Inc., doing business as Cary Manor Nursing Home ("intervenor"), appeals the two-member panel of the Commission's reversal of an award of attorneys' fees to intervenor. Intervenor contends that the two commissioners who entered the opinion and award of 3 June 1999 did not have jurisdiction to do so (the third member being absent due to illness), and; assuming arguendo they did, intervenor contends the panel misapplied N.C. Gen. Stat. § 97-88. We disagree and affirm the Commission's opinion and award.
Briefly, the facts relevant to the present appeal reveal that defendant-employer C.P. Buckner Steel Erection and defendant-insurer Liberty Mutual Insurance Company (collectively "defendants"), appealed the prior award of the Commission (dated 19 December 1995) which ordered defendants to pay intervenor the difference between the amount paid intervenor by Medicaid and the amount allowable under the Commission's fee schedule, and which also ordered defendants to pay intervenor $500.00 in attorneys' fees. In Pearson v. C. P. Buckner Steel Erection Co., 126 N.C. App. 745, 486 S.E.2d 723 (1997) ("1997 appeal"), this Court held that:
Attorneys' fees may be awarded by the Commission when the hearing or proceeding is brought by the insurer and the insurer is ordered to pay or continue to pay benefits. N.C. Gen. Stat. § 97-88 (1991). In the present case, the opinion and award ordering defendants to pay the expenses in excess of those paid by Medicaid was not the result of an appeal by the insurer. It was the direct result of a motion made by plaintiff. Therefore, an award of attorneys' fees to the plaintiff was improper. Id. at 752, 486 S.E.2d at 728 (emphasis added).
The Supreme Court reversed and remanded on appeal by intervenor in Pearson v. C. P. Buckner Steel Erection Co., 348 N.C. 239, 498 S.E.2d 818 ("1998 appeal"), stating,
we hold that the Commission's 19 December 1995 order directing defendants to pay intervenor and plaintiff's other health-care providers the difference between the amount reimbursed to Medicaid and the amount allowable under the Act was a proper exercise of its authority. We further hold that the Commission correctly applied the workers' compensation law of this State and that such law is not preempted by federal Medicaid law. We therefore reverse the Court of Appeals' holding that the Commission's 19 December 1995 order was in error. . Pearson, 348 N.C. at 246-47, 498 S.E.2d at 823.
However, the Supreme Court did not rule on the issue of attorneys' fees.
On 19 June 1998, intervenor petitioned for supplemental attorneys' fees pursuant to N.C. Gen. Stat. § 97-88 for the additional time necessary to defend against defendants' 1997 appeal to this Court, and intervenor's 1998 appeal to the Supreme Court which resulted in reinstatement of the Commission's order of 19 December 1995. On 7 August 1998, Commissioner Bolch entered an order for the Full Commission requiring defendants to pay plaintiff the sum of $10,000.00 as attorneys fees for the time intervenor's counsel spent in defending against defendants' appeal
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