                                 NO. COA13-9

                     NORTH CAROLINA COURT OF APPEALS

                              Filed: 6 May 2014


SANTOS TINAJERO,
          Employee,
          Plaintiff,

    v.                                          North Carolina
                                                Industrial Commission
BALFOUR BEATTY INFRASTRUCTURE,                  I.C. No. 091464
INC.,
          Employer,

ZURICH AMERICAN INSURANCE COMPANY,
          Carrier,
          Defendants.


    Appeal by plaintiff and defendants from opinions and awards

entered   by   the   North    Carolina       Industrial       Commission   on    13

September 2010 and 16 October 2012.                 Heard in the Court of

Appeals 9 May 2013.


    R. James Lore,        Attorney      at   Law,   by   R.    James   Lore,    for
    plaintiff.

    Stiles, Byrum & Horne, L.L.P., by Henry C. Byrum, Jr., for
    defendants.


    GEER, Judge.


    Plaintiff    Santos      Tinajero    and    defendants       Balfour   Beatty

Infrastructure, Inc. and Zurich American Insurance Company each

appeal from opinions and awards entered by the North Carolina
                                     -2-
Industrial Commission arising out of Mr. Tinajero's admittedly

compensable injury by accident that resulted in Mr. Tinajero's

being a quadriplegic.          The primary issue on appeal is whether

the Commission properly required defendants to pay the rental

cost    of   reasonable   handicapped       accessible   housing   for     Mr.

Tinajero.

       Applying Derebery v. Pitt Cnty. Fire Marshall, 318 N.C.

192, 347 S.E.2d 814 (1986), and Espinosa v. Tradesource, Inc.,

___ N.C. App. ___, 752 S.E.2d 153 (2013), we hold that the

Commission did not abuse its discretion in making this award

given that (1) Mr. Tinajero had no dwelling of his own that

could be renovated to provide handicapped accessible housing,

(2) defendants had continuously paid the full cost of housing

for Mr. Tinajero since his injury by accident so long as he

resided in a skilled nursing home or long-term care facility,

and (3) the Commission found that living in such facilities was

not in Mr. Tinajero's medical best interest.             The Commission was

free   to    conclude   that   defendants    should   not   be   allowed   to

condition their payment of Mr. Tinajero's housing costs on his

agreeing to live in a facility that the Commission had found,

based on competent evidence, was harmful to him physically and

mentally and not in his medical best interests.

                                    Facts
                                              -3-
      On 11 August 2008, Mr. Tinajero, an undocumented worker

from Mexico, was employed by Balfour Beatty Infrastructure, Inc.

While Mr. Tinajero was working on a barge, a crane cable broke

and   knocked        him    into    the   water.        Immediately       following    the

accident, Mr. Tinajero was transported to Pitt County Memorial

Hospital where he was treated surgically for his injuries.                             Mr.

Tinajero, who was 26 years old at the time of the hearing before

the   deputy         commissioner,         had        suffered     a      C4-5   fracture

dislocation, leaving him an ASIA A-B quadriplegic.

      On 15 August 2008, Mr. Tinajero was transferred to Shepherd

Center      in    Atlanta,          Georgia     for     continuing        treatment      and

rehabilitation.             The     Shepherd     Center       provides    rehabilitative

services for patients with significant neurologic injuries and

illnesses, predominately spinal cord and brain injuries.                                 Mr.

Tinajero's condition required attendant care 24 hours per day,

seven days per week.

      Mr.     Tinajero        remained     at    the        Shepherd   Center    until    5

December 2008.             Mr. Tinajero's nurse case manager was unable to

locate   an      appropriate        apartment,        but    recommended     against     Mr.

Tinajero's being placed in a nursing home upon his discharge

from Shepherd Center because, in her experience, such a setting

reinforces       a    "sick"       mentality     and    leads     to     depression.       A

subsequent       nurse       case    manager     ultimately       found    one   assisted
                                               -4-
living facility willing to accept someone his age, Briarcliff

Haven.        Mr.     Tinajero       was       then     placed      in     the     sub     acute

rehabilitation unit at Briarcliff Haven beginning on 5 December

2008.

       On    27    February     2009,      Mr.       Tinajero      filed    an     "Emergency

Motion      for    Medical    Treatment"         with       the   Commission.            In   the

motion, Mr. Tinajero asserted that his placement at Briarcliff

Haven was not a suitable living environment and that any delay

in    relocating      him    would    unjustifiably           jeopardize          his    health.

Mr. Tinajero requested that the Commission order defendants to

pay    for   his     placement       in    a   suitable       apartment       with       24-hour

attendant care.

       In response to Mr. Tinajero's motion, the Commission issued

an order on 20 March 2009 in which it referred the case to the

regular docket for an expedited evidentiary hearing.                               Before the

scheduled         hearing    date,    the       parties       submitted       a    "Pre–Trial

Agreement guided by Rule 16 of the North Carolina Rules of Civil

Procedure."         In the pre-trial agreement, the parties set forth a

number of issues to be determined at the subsequent hearing.

Included      among         these     issues,         Mr.     Tinajero        requested         a

determination         whether       defendants         were       obligated       to     provide

adaptive housing, as well as what type of housing and attendant

care were required.           On 10 April 2010, Mr. Tinajero, on his own,
                                                 -5-
located an apartment across the street from Shepherd Center and

moved into that apartment.

       In the hearing before the deputy commissioner, Mr. Tinajero

submitted a life care plan created by Michael Fryar.                                         After

reviewing       Mr.    Fryar's       credentials,          experience,        and    life     care

plan,     the     deputy          commissioner         determined       that        the    report

prepared     by       Mr.    Fryar      was      not      an   objective       and        unbiased

assessment of Mr. Tinajero's needs.

       The   deputy         commissioner         concluded      that     Mr.   Tinajero          was

entitled to lifetime workers' compensation benefits.                                      However,

the     deputy    commissioner            also      determined         that    "[d]efendants

[were] not obligated to purchase, construct or lease adaptive

housing for [Mr. Tinajero] . . . ."                            According to the deputy

commissioner,         defendants          were     already     providing       Mr.        Tinajero

with    suitable       housing       at    Briarcliff          Haven,    and    the       medical

evidence presented at the hearing failed to establish that it

was necessary for Mr. Tinajero to leave the Briarcliff Haven

facility.

       Mr.   Tinajero         appealed        to    the    Full    Commission.              On   13

September       2010,       the    Commission       entered       an    opinion      and     award

affirming in part, reversing in part, and modifying in part the

deputy commissioner's opinion and award.                           With respect to Mr.

Tinajero's       housing,         the   Full       Commission      determined         that       Mr.
                                           -6-
Tinajero's placement at Briarcliff Haven was not appropriate in

that it endangered his physical and psychological health.1                              The

Full Commission found that the evidence supported Mr. Tinajero's

concerns     about       infections       due     to     inadequate    medical        care,

including     medical       orders       not     being     followed    regarding        the

timeliness of required intermittent catheterizations.                               Because

of   Briarcliff      Haven's       inability       to     assure     that    they    could

properly follow Mr. Tinajero's medical orders and timely perform

the catheterizations, defendants had to contract with outside

nurses to provide necessary nursing care.

      The Full Commission further found that the greater weight

of   the   lay    and    medical     evidence          established    that    living     in

Briarcliff Haven was having a negative impact on Mr. Tinajero's

mental     health.         Based     on    the     medical     evidence,      the      Full

Commission       found    that     "it    was     in     plaintiff's    medical       best

interest    for    defendants       to    provide        housing   suitable     for     the

maximum possible level of independence, which means someplace

other than a skilled nursing home or long-term care facility."



      1
      The Commission found that Mr. Tinajero's nurse case manager
had specifically advised defendants that she did not recommend a
nursing home because it would not optimize his learning and
rehabilitation, would expose him to infections, and leads to
depression. The Commission further noted that the case manager,
when deposed, expressed her expert opinion that the best housing
environment for plaintiff would be an apartment with 24-hour
caregivers.
                                               -7-
      The Full Commission found that at the time of his injury by

accident, Mr. Tinajero did not own a dwelling, but rather shared

a rented apartment with two other people in New Bern, North

Carolina.       Mr. Tinajero, therefore, owned no property that could

be made handicapped accessible for use by him in his post-injury

condition.       The Full Commission noted, however, that a 27 May

2010 progress report by his nurse case manager indicated he was

living    in    an     apartment.            The    Full    Commission       observed       that

defendants contended "that they provided suitable accommodations

for   plaintiff         at     Briarcliff          Haven    and     that     they    are    not

obligated       to    pay     for      the    lease    of        plaintiff's      handicapped

accessible      apartment,"            but   pointed       out    "that     for   many     years

defendants       have        in     effect     paid        for     the     entire    cost    of

plaintiff's          housing      at    both       Shepherd       Center    and     Briarcliff

Haven."    (Emphasis added.)

      The Full Commission, therefore, found:

               [B]ecause plaintiff has no dwelling that can
               be   renovated     to    provide    handicapped
               accessible     housing,      defendants     are
               responsible    for     providing    handicapped
               accessible housing for plaintiff.       In this
               case, the greater weight of the evidence
               shows that plaintiff should be placed in
               housing that will allow him to have as much
               independence   as     possible.      Reasonable
               handicapped accessible housing for plaintiff
               at this time is an apartment which can
               accommodate the necessary 24-hour daily
               attendant care for plaintiff.          Although
               defendants are obligated to pay for the
                                          -8-
               lease of such apartment, the selection of an
               apartment must be reasonable under the
               circumstances. An assessment by a certified
               life care planner of plaintiff's current
               living quarters is necessary to ascertain
               whether   the   apartment    is    appropriate
               handicapped     accessible      housing     to
               accommodate plaintiff's physical needs.

       With respect to Mr. Tinajero's request that defendants be

required to provide adaptive transportation, the Full Commission

found that Mr. Tinajero had never possessed a driver's license

or owned a motor vehicle.                 Since his discharge from Shepherd

Center, defendants had provided transportation through a private

company for medical visits, therapy, recreation at the Shepherd

Center,    and      social     activities.      In    addition,    defendants     had

assisted      Mr.      Tinajero    in   obtaining     a   pass    for    the   public

transportation system in Atlanta.                    The Full Commission found

that    two       of     Mr.      Tinajero's     doctors        considered      these

transportation options to be reasonable for Mr. Tinajero.                         The

Full Commission, therefore, determined that "[d]efendants are

not obligated to purchase a vehicle for plaintiff, but would be

obligated to modify any vehicle plaintiff purchases for his own

transportation to make it accessible to plaintiff's needs.                       The

Full Commission finds that the transportation services currently

being provided plaintiff by defendants are reasonable."

       Based     on     the    findings    of   fact,     the     Full   Commission

concluded that Mr. Tinajero was totally disabled and entitled to
                                         -9-
total disability compensation as well as medical treatment for

his   lifetime.        The     Full   Commission     also       ordered   that    Mr.

Tinajero receive attendant care 24 hours per day, seven days per

week to be provided by qualified nursing personnel.

      With   respect      to   housing,   the     Full    Commission      concluded,

citing Derebery and Timmons v. N.C. Dep't of Transp., 123 N.C.

App. 456, 473 S.E.2d 356 (1996), aff'd per curiam, 346 N.C. 173,

484 S.E.2d 551 (1997) (Timmons I):

             In this case, because plaintiff owns no
             dwelling that can be renovated to provide
             handicapped accessible housing, defendants
             are responsible for providing handicapped
             accessible housing for plaintiff. While the
             case law has held that the provision of
             ordinary housing is an expense of daily life
             to   be   paid  from    an   injured   worker's
             disability compensation, the additional cost
             of renting handicapped accessible housing is
             not an ordinary expense and should be borne
             by defendants, who have up to this point
             continuously provided accommodated housing
             for   plaintiff    at  Shepherd    Center   and
             Briarcliff     Haven      since     plaintiff's
             compensable injury by accident.      Therefore,
             defendants shall pay the rental cost of
             reasonable handicapped accessible housing
             for plaintiff, which at this time is an
             apartment    which    can    accommodate    the
             necessary 24-hour daily attendant care for
             plaintiff.

(Emphasis added.)

      The Full Commission concluded that "[d]efendants are not

required     to    purchase      or   lease     adaptive    transportation        for

plaintiff     or    for    his    use.         McDonald    v.    Brunswick       Elec.
                                             -10-
Membership Corp., 77 N.C. App. 753, 336 S.E.2d 407 (1985)."

Instead,     the    Full       Commission       concluded          that    defendants      had

already     provided         reasonable        transportation,            although    if   Mr.

Tinajero     purchased         a     vehicle,     defendants         were     obligated     to

modify it to accommodate his disability.

      The   Full        Commission      agreed      with   the      deputy     commissioner

that the "life care plan prepared by Michael Fryar in this case

was not an unbiased, objective, fair, and balanced assessment."

The Full Commission concluded that defendants were not required

to pay for Mr. Fryar's report because it did not constitute a

valid "'rehabilitative service'" within the meaning of N.C. Gen.

Stat. § 97-2(19).             The Full Commission concluded, however, that

Mr.   Tinajero      was       entitled    to     have      defendants        pay     for   the

preparation        of    a    life    care     plan     "by    a    well-qualified         and

certified     life        care       planner     with      long-standing           experience

dealing with catastrophic life care planning.                           Plaintiff is also

entitled    to     an    assessment       by     the    life     care      planner    of   his

current     housing          arrangements       and     whether      the     apartment      is

appropriate to accommodate plaintiff's physical needs."

      Finally, the Full Commission concluded that "[d]efendants

did not defend this claim in an unreasonable manner or without

reasonable grounds and, therefore, plaintiff is not entitled to

attorney's fees pursuant to N.C. Gen. Stat. §97-88.1; Sparks v.
                                       -11-
Mountain Breeze Restaurant, 55 N.C. App. 663, 286 S.E.2d 575

(1982)."

    Defendants       filed    notice    of    appeal   from    the    opinion    and

award of the Full Commission, and Mr. Tinajero cross-appealed.

This Court dismissed the appeal as interlocutory since complete

resolution of the medical issues in the case required, as the

Full Commission had concluded, completion of a satisfactory life

care plan for Mr. Tinajero.              See Tinajero v. Balfour Beatty

Infrastructure, Inc., 214 N.C. App. 563, 714 S.E.2d 867, 2011

N.C. App. LEXIS 1832, 2011 WL 3570046 (2011) (unpublished).

    On remand, the parties agreed to have Susan Caston assess

Mr. Tinajero's needs although she was not a certified life care

planner.     Ms. Caston completed her report on 21 May 2012.                     Ms.

Caston's rehabilitation plan addressed Mr. Tinajero's housing,

transportation, and vocational/employment status.                    Mr. Tinajero

filed a motion to depose Ms. Caston on 28 June 2012.

    Mr.    Tinajero     also    sought    to   take    the    deposition    of    V.

Robert May, III, Chief Executive Officer of the International

Commission    on     Health    Care    Certification,         the    international

organization that provides accreditation for life care planners.

Mr. Tinajero asserted that after the Full Commission had found

that Mr. Fryar's life care plan did not conform to industry

standards,    that    life     care    plan    had    been    submitted    to    the
                                          -12-
International Commission on Health Care certification for peer

review.       According to the motion, the blind evaluation of Mr.

Fryar's plan had resulted in its being used as "'one of our

preferred examples'" in Mr. May's presentations.                        Mr. Tinajero

sought       Mr.     May's     deposition    for      the    limited     purpose      of

authenticating the report reviewing Mr. Fryar's life care plan.

The Full Commission denied Mr. Tinajero's motion to depose Ms.

Caston    and      Mr.   May   in   its   opinion     and    award    entered    on   16

October 2012.

       Pertinent to this appeal, the Full Commission's 16 October

2012 opinion and award found, based on Ms. Caston's evaluation,

that    "the       geographical     location     of   [Mr.    Tinajero's]       current

apartment adequately [met] his needs to access the community."

With respect to parking, the Commission found that "[i]nasmuch

as plaintiff cannot legally drive in the United States and does

not    now    own    a   handicap-accessible          vehicle,   it    is   presently

irrelevant whether his apartment provides a parking space for

him."

       As for Mr. Tinajero's housing, the Full Commission found:

               Placing   plaintiff   in  a   position  which
               maximizes   his   independence   is   a  goal
               repeatedly expressed throughout the medical
               evidence in this case.      While plaintiff's
               current living situation is preferable to a
               skilled nursing home or long-term care
               facility, plaintiff cannot reach the maximum
               possible level of independence in a housing
                                  -13-
           situation in which he cannot maneuver or
           fully access the kitchen, bathroom, and
           laundry room.    Therefore, it is reasonable
           and medically necessary that an occupational
           therapist with experience in addressing
           accessibility       issues        for       the
           catastrophically injured be consulted to
           identify and make recommendations to the
           parties regarding accessibility options for
           plaintiff   given   his   current    functional
           status.

       Mr. Tinajero filed a notice of appeal of the 16 October

2012 opinion and award on 18 October 2012 and of the interim 13

September 2010 order in a supplemental notice of appeal on 19

November 2012.      Defendants filed notice of appeal of the 16

October 2012 order on 30 October 2012, and supplemental notice

of appeal of the 13 September 2010 order on 30 November 2012.

                               Discussion

       Our review of a decision of the Industrial Commission "is

limited to determining whether there is any competent evidence

to support the findings of fact, and whether the findings of

fact justify the conclusions of law."         Cross v. Blue Cross/Blue

Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991).

"The findings of the Commission are conclusive on appeal when

such    competent   evidence   exists,    even   if   there   is   plenary

evidence for contrary findings."         Hardin v. Motor Panels, Inc.,

136 N.C. App. 351, 353, 524 S.E.2d 368, 371 (2000).                As the

fact-finding body, "'[t]he Commission is the sole judge of the
                                         -14-
credibility of the witnesses and the weight to be given their

testimony.'"        Deese v. Champion Int'l Corp., 352 N.C. 109, 115,

530 S.E.2d 549, 552 (2000) (quoting Adams v. AVX Corp., 349 N.C.

676, 680, 509 S.E.2d 411, 413 (1998)).

I.    Defendants' Appeal

      A.     Timeliness of Appeal

      As     a     preliminary    matter,       we   address    Mr.    Tinajero's

contention that defendants did not timely appeal the entry of

the 13 September 2010 opinion and award and, therefore, this

Court      lacks    jurisdiction    to     consider    defendants'     arguments

regarding the Commission's requirement that they pay for Mr.

Tinajero's housing.        Mr. Tinajero points out that defendants' 30

October 2012 notice of appeal stated only that defendants were

appealing from the 16 October 2012 opinion and award.

      Defendants' timely first notice of appeal did not mention

the     13   September     2010    opinion       and   award.         Defendants'

supplemental notice of appeal, indicating that they were also

appealing the 13 September 2010 opinion and award, was filed

more than 30 days after defendants' receipt of the final opinion

and award of the Commission.              See N.C.R. App. P. 3(c)(1), (2)

(providing that in order to be timely, notice of appeal must be

filed either within 30 days of entry of judgment if the judgment
                                         -15-
was served with three days, or within 30 days of service to a

party if service was not effected within three days).

       We note that while Rule 3(d) of the Rules of Appellate

Procedure provides that the notice of appeal "shall designate

the judgment or order from which appeal is taken," N.C. Gen.

Stat. § 1-278 (2013) provides: "Upon an appeal from a judgment,

the court may review any intermediate order involving the merits

and necessarily affecting the judgment."                       This Court has held

that   even    when   a    notice       of    appeal        fails   to   reference    an

interlocutory order, in violation of Rule 3(d), appellate review

of that order pursuant to N.C. Gen. Stat. § 1-278 is proper

under the following circumstances: (1) the appellant must have

timely    objected        to     the    order;        (2)     the   order     must   be

interlocutory and not immediately appealable; and (3) the order

must   have    involved        the   merits     and    necessarily       affected    the

judgment.      Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637,

641, 535 S.E.2d 55, 59 (2000).                  All three conditions must be

met.   Id. at 642, 535 S.E.2d at 59.

       Here, defendants immediately objected to the 13 September

2010 opinion and award by appealing it.                         See Sellers v. FMC

Corp.,   216   N.C.   App.       134,    139,    716    S.E.2d      661,    665   (2011)

(holding, in workers' compensation case, that                        claim in reply

brief that Commission's prior ruling was in error was sufficient
                                           -16-
objection to meet first requirement of N.C. Gen. Stat. § 1-278).

In    addition,      this   Court     already      concluded,       when    dismissing

defendants' appeal, that the order was interlocutory and not

immediately appealable.           Tinajero, 214 N.C. App. 563, 714 S.E.2d

867, 2011 N.C. App. LEXIS 1832, 2011 WL 3570046 (2011).

       Finally, the 13 September 2010 opinion and award involved

the merits and necessarily affected the final opinion and award

because the 13 September 2010 opinion and award substantially

decided       the    primary     issues      in    contention,         including        Mr.

Tinajero's housing and transportation.                    Since defendants' appeal

of     the    13    September       2010     opinion       and     award    meets       the

requirements        of   N.C.    Gen.      Stat.     §    1-278,    this    Court       has

jurisdiction        to   consider     defendants'         arguments.        See,    e.g.,

Yorke v. Novant Health, Inc., 192 N.C. App. 340, 348, 666 S.E.2d

127,    133    (2008)    (holding     that    even       though    notice    of    appeal

referenced      only     final   judgment      and       post-trial    order      denying

motion for new trial, Court had jurisdiction to review denial of

motion for directed verdict under N.C. Gen. Stat. § 1-278 when

defendant      objected     at   trial      and    denial    of    directed       verdict

involved merits and affected final judgment); Brooks, 139 N.C.

App. at 642-43, 535 S.E.2d at 59 (finding requisites of N.C.

Gen. Stat. § 1-278 satisfied when directed verdict dismissing

all    counterclaims        against     co-defendants        was    objected       to    at
                                               -17-
trial,       was    implicated          by    motion    specifically         appealed,      was

interlocutory,             and     order      deprived     defendant         of     potential

claims).

       B.   Commission's Requirement that                        Defendants         Pay     for
            Plaintiff's Housing
       Defendants first contend that the                         Commission         erred    in

ordering that defendants "provide handicapped accessible housing

for [Mr. Tinajero], which at [that] time [was] a handicapped

accessible apartment that [could] accommodate the necessary 24-

hour daily attendant care for plaintiff.                         Defendants shall pay

for    the    lease        of    such     apartment,      but   the    selection       of    an

apartment          must      be     reasonable         under     the       circumstances."

Defendants contend that rent is an ordinary expense of life

required to be paid from wages.

       Because Mr. Tinajero is totally and permanently disabled,

N.C.   Gen.        Stat.     §    97-29      (2007)    controls,     and     "compensation,

including          medical       compensation,         shall    be    paid    for    by     the

employer during the lifetime of the injured employee."                               Medical

compensation, in turn, was defined in N.C. Gen. Stat. § 97-2(19)

(2007) as:

               medical, surgical, hospital, nursing, and
               rehabilitative services, 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 additional time as,
               in the judgment of the Commission, will tend
               to lessen the period of disability . . . .
                                       -18-


(Emphasis added.)

       In Derebery, our Supreme Court, in applying a prior version

of N.C. Gen. Stat. § 97-29, construed what compensation falls

within the scope of "other treatment."              318 N.C. at 199-200, 347

S.E.2d at 819.        The plaintiff in Derebery had presented evidence

that he had lived with his parents in their rented home and that

the owner of the home refused to allow the plaintiff's family to

modify    the    house   structurally      to   accommodate   the     plaintiff's

wheelchair.       Id. at 198, 347 S.E.2d at 818.          The Commission had

ordered the defendants, pursuant to N.C. Gen. Stat. § 97-29, to

provide    the    plaintiff    with    a   wheelchair-accessible        place    to

live.    Id. at 195-96, 347 S.E.2d at 816-17.

       This Court reversed, holding that the provision requiring

payment for "'other treatment or care'" could not "be reasonably

interpreted      to   extend   the    employer's    liability    to    provide    a

residence for an injured employee."              Derebery v. Pitt Cnty. Fire

Marshall, 76 N.C. App. 67, 72, 332 S.E.2d 94, 97 (1985).                        The

Supreme Court reversed this Court, holding "that the employer's

obligation to furnish 'other treatment or care' may include the

duty to furnish alternate, wheelchair accessible housing."                      318

N.C. at 203-04, 347 S.E.2d at 821.               Specifically, "an employer

must    furnish    alternate,    wheelchair      accessible     housing    to    an

injured employee where the employee's existing quarters are not
                                             -19-
satisfactory       and        for     some        exceptional       reason       structural

modification is not practicable."                        Id. at 203, 347 S.E.2d at

821.

       Defendants,       in    this      case,     however,      urge    this     Court   to

follow    Justice       Billings'        dissent     in    Derebery,      in     which    she

concluded that housing is an ordinary necessity of life that the

employee      is   required         to      pay     for    out   of     his      disability

compensation.          Id. at 205-06, 347 S.E.2d at 822 (Billings, J.,

dissenting).           Defendants        contend     that    this     Court      previously

adopted that dissent in Timmons I.

       The plaintiff in Timmons I was a paraplegic who initially

lived with his parents.                  123 N.C. App. at 458, 473 S.E.2d at

357.     The defendant paid to modify the plaintiff's parents' home

to     make   it       accessible         for      the    plaintiff's          use.       Id.

Subsequently, the plaintiff moved to a handicapped-accessible

apartment where he lived for approximately eight and a half

years.     Id.     When the rent increased, the plaintiff moved back

to his parents' home.                 Id.       Ultimately, however, unlike the

plaintiff     in       Derebery     or      Mr.     Tinajero     in     this     case,    the

plaintiff in Timmons I returned to full-time employment with the

defendant.       Id.     He was able to purchase land and requested that

the Commission order the defendant to finance the construction

of a new, handicapped-accessible home on that land.                            Id. at 458-
                                             -20-
59, 473 S.E.2d at 357-58.                  The Commission, however, refused to

order    that     the    defendant        pay    for    the       construction      of    a   new

house,    but      rather      ordered     only       that    the       defendant    pay       the

expense      of       making     the      plaintiff's             new     home   handicapped

accessible.        Id. at 459, 473 S.E.2d at 358.

      Both      the     plaintiff      and      the    defendant         appealed    to       this

Court. On appeal, the defendant argued that it should not be

required      to      provide       any      assistance           in      constructing         the

plaintiff's residence.              Id. at 460, 473 S.E.2d at 358.                             The

plaintiff       in     turn    contended         that       the    defendant     should        be

required to bear the entire cost of constructing his residence.

Id.      This Court affirmed the Commission, concluding based on

Derebery, that "the Commission's finding that the accommodations

at plaintiff's parents' home are no longer suitable supports its

conclusion that plaintiff is entitled to have defendant pay for

adding to plaintiff's new home those accessories necessary to

accommodate plaintiff's disabilities."                        Id. at 461, 473 S.E.2d

at 359 (internal quotation marks omitted).

      However, the Court rejected the plaintiff's argument that

Derebery     required         the   defendant          to   pay     the    entire    cost      of

constructing the plaintiff's residence:

             As pointed out by Justice (later Chief
             Justice)   Billings  in   her   dissent  in
             Derebery, the expense of housing is an
             ordinary necessity of life, to be paid from
                                            -21-
                 the statutory substitute for wages provided
                 by the Worker's Compensation Act. The costs
                 of modifying such housing, however, to
                 accommodate one with extraordinary needs
                 occasioned by a workplace injury, such as
                 the plaintiff in this case, is not an
                 ordinary expense of life for which the
                 statutory substitute wage is intended as
                 compensation.      Such   extraordinary and
                 unusual expenses are, in our view, properly
                 embraced in the "other treatment" language
                 of G.S. § 97-25, which the basic costs of
                 acquisition or construction of the housing
                 is not.

Id.   at      461-62,    473     S.E.2d     at   359.     Accordingly,       the    Court

affirmed the Commission's opinion and award that defendant only

"'pay      for    adding    to    plaintiff's      new    home     those   accessories

necessary        to    accommodate    plaintiff's        disabilities.'"           Id.    at

462, 473 S.E.2d at 359.

      From that unanimous decision of this Court, the defendant

filed a petition for discretionary review, asking the Supreme

Court to consider "[w]hether an employer [was] required by G.S.

97-25 to pay the cost of construction of a house, in whole or in

part, for an employee who is a paraplegic due to a work related

injury where the employee has returned to full-time employment

and     the      employer      has   previously         modified     one    house        for

employee's use."           After the Supreme Court allowed the petition,

Timmons v. N.C. Dep't. of Transp., 344 N.C. 739, 478 S.E.2d 13

(1996), the defendant urged the Court to overturn Derebery or to

"consider        the    well     reasoned    dissent     of   Justice      Billings       in
                                              -22-
Derebery and perhaps now adopt it as the rule of law."                                   The

plaintiff, however, argued that Derebery mandated payment for

the cost of the entirety of the construction of his home.

          The Supreme Court affirmed this Court's order in a per

curiam decision.               Timmons v. N.C. Dep't of Transp., 346 N.C.

173, 484 S.E.2d 551 (1997).                     "'Per curiam decisions stand upon

the       same       footing    as    those      in   which      fuller      citations   of

authorities are made and more extended opinions are written.'"

Total Renal Care of N.C., LLC v. N.C. Dep't of Health & Human

Servs.,         195    N.C.    App.   378,    386,    673      S.E.2d   137,   143   (2009)

(quoting Bigham v. Foor, 201 N.C. 14, 15, 158 S.E.2d 548, 549

(1931)).             Although defendants urge us to adopt a reading of

Timmons by which Justice Billings' dissent in that case has been

adopted as the governing rule of law in North Carolina, our

Supreme         Court's       rejection    of    that    argument       on   discretionary

review in Timmons I precludes such a reading of the case.

          This Court has since addressed both Derebery and Timmons I

in    a       case    in   which     the   parties      both    made    arguments    nearly

identical to those in this case:

                      As a preliminary point, we note that
                 the parties' arguments assume rules that are
                 rigid and broadly applicable in the cases
                 discussed above. A reading of section 97–252
          2
      This Court noted in Espinosa that Derebery's construction
of the phrase "other treatment" applies equally to cases under
N.C. Gen. Stat. § 97-29 and to cases under N.C. Gen. Stat. § 97-
                                 -23-
           makes it clear, however, that an award of
           "other treatment" is in the discretion of
           the Commission.    2005 N.C. Sess. Laws ch.
           448, § 6.2 ("[T]he [Commission] may order
           such further treatments as may in the
           discretion    of      the    Commission     be
           necessary.").   Section 97–2(19), as written
           at the time of Plaintiff's injury, further
           explained   that    the   type    of   medical
           compensation the employer must pay is "in
           the judgment of the Commission" as long as
           it is "reasonably . . . required to effect a
           cure or give relief." 1991 N.C. Sess. Laws
           Ch. 703, § 1. The Supreme Court's decision
           in Derebery and our own decision in Timmons
           represent   the    outer    limits   of    the
           Commission's authority under those statutes,
           not entirely new rules to be followed in
           place of or in addition to the statutes
           created by our legislature.

Espinosa, ___ N.C. App. at ___, 752 S.E.2d at 160-61.

      In   Espinosa,   the   Commission   had   determined   that   the

defendants should pay the pro rata difference between the rent

required for the plaintiff's new, handicapped-accessible home

and the rent the plaintiff had to pay as an ordinary expense of

life before his injury.       Id. at ___, 752 S.E.2d at 161.         In

upholding the Commission's decision, this Court explained:

           The Commission sensibly reasoned that living
           arrangements constitute an ordinary expense
           of life and, thus, should be paid by the
           employee.   The Commission also recognized,
           however, that a change in such an expense,
           which is necessitated by a compensable
           injury, should be compensated for by the
           employer. Because Plaintiff did not own his
           own home in this case, he was required to

25.   ___ N.C. App. at ___ n.6, 752 S.E.2d at 159 n.6
                                   -24-
              find new rental accommodations that would
              meet   his   needs.       In   this factual
              circumstance, it was appropriate for the
              Commission to require the employer to pay
              the difference between the two.

                   While circumstances may occur in which
              an employer is required to pay the entire
              cost of the employee's adaptive housing,
              neither the Supreme Court's opinion in
              Derebery nor our holding in Timmons support
              Plaintiff's    assertion    that   such    a
              requirement is necessary whenever an injured
              worker does not own property or a home.
              Such a ruling would reach too far.

Id. at ___, 752 S.E.2d at 161.

       In this case, in contrast, the Commission concluded that

defendants should pay the full cost of Mr. Tinajero's adaptive

house.    Consistent with Derebery, Timmons I, and Espinosa, the

Commission noted first that "because plaintiff owns no dwelling

that can be renovated to provide handicapped accessible housing,

defendants are responsible for providing handicapped accessible

housing for plaintiff.        While the case law has held that the

provision of ordinary housing is an expense of daily life to be

paid   from    an   injured   worker's    disability   compensation,   the

additional cost of renting handicapped accessible housing is not

an ordinary expense . . . ."

       While defendants urge that they should only have to pay

that portion of the rent that exceeds the amount Mr. Tinajero

was paying prior to his injury -- the approach adopted by the
                                       -25-
Commission in Espinosa -- the Commission, in this case, although

acknowledging that Mr. Tinajero, prior to his injury, had shared

the   cost   of    an   apartment      with      two    other    people,      rejected

defendants'       contention.        The      Commission        pointed      out    that

defendants were fully willing to pay "for many years . . . the

entire cost of plaintiff's housing at both Shepherd Center and

Briarcliff Haven."         Moreover, while Mr. Tinajero was housed at

Briarcliff Haven, defendants also had to pay for outside nursing

care to supplement the care provided by the facility because the

facility was consistently unable to "properly follow plaintiff's

medical      orders        and    timely         perform        his    intermittent

catheterizations."          Thus, as the Commission found, defendants

were completely willing to pay the cost of a skilled nursing

home or long-term care facility, even if they had to also pay

for additional outside nursing care, but they were unwilling to

pay the cost of leasing an apartment.

      The Commission expressly found that the housing chosen by

defendants,    Briarcliff        Haven,    was    not    suitable     in     that    (1)

living in that facility was "having a negative impact on [Mr.

Tinajero's]       mental    health";      (2)     the    medical      care     he    was

receiving in the facility was inadequate; and (3) moving Mr.

Tinajero from the nursing facility to an apartment served the

interests     of    the     repeatedly        stated     medical      priority        of
                                            -26-
"[p]lacing     [Mr.        Tinajero]       in     a     position     to     maximize      his

independence      .    .   .   ."      Although         defendants       argue    with     the

Commission's        findings        that    Mr.       Tinajero      needed       to      leave

Briarcliff Haven, those findings are supported by ample evidence

in the record.

       Consequently,        defendants'          position      before     the    Commission

was that they would pay fully for housing that the Commission

determined was not in Mr. Tinajero's best medical interests and

was not suitable, but they would not pay for housing -- in the

form of an apartment with attendant care -- that the Commission

found, based on competent evidence, was in Mr. Tinajero's best

medical interests.          In other words, defendants conditioned their

full    payment       of   housing     costs       on    Mr.    Tinajero's        accepting

housing contrary to his medical interests.

       Under the particular circumstances of this case, we hold

that    the   Commission        properly          exercised        its    discretion       in

concluding that defendants should not be allowed to force such a

choice on an injured employee.                   Rather, under the circumstances

found    by   the      Commission,         the     Commission       acted       within    its

authority as set out in Derebery, Timmons I, and Espinosa, in

determining that because defendants had previously been willing

to pay the full cost for Mr. Tinajero's housing in a skilled

nursing facility, which was not in Mr. Tinajero's medical best
                                         -27-
interests,       they    were    obligated      to   "pay   the     rental      cost   of

reasonable      handicapped      accessible      housing,"        which   was    in    Mr.

Tinajero's medical best interests.                   We, therefore, affirm the

Commission's ruling on Mr. Tinajero's housing.3

II.   Plaintiff's Appeal

      A.       Denial of Mr. Tinajero's Request for Depositions

      Mr. Tinajero contends that the Commission erred in refusing

to allow him to depose Ms. Caston and Mr. May.                      Under N.C. Gen.

Stat.      §   97-85(a)     (2013),      the     Full    Commission         may,      upon

application by a party, "receive further evidence."                         However, a

party      "does   not    have    a    substantial       right     to     require      the

Commission to hear additional evidence, and the duty to do so

only applies if good ground is shown."                   Allen v. Roberts Elec.

Contractors,       143    N.C.    App.   55,    65-66,      546    S.E.2d      133,    141

(2001).        "'[T]he question of whether to reopen a case for the

taking of additional evidence rests in the sound discretion of

the     Industrial       Commission,     and     its    decision        will    not     be

disturbed on appeal in the absence of an abuse of discretion.'"

Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 29, 514



      3
      Defendants also argue that Mr. Tinajero could not lawfully
lease an apartment in Atlanta because he is undocumented.
Defendants contend that they cannot legally pay rent for an
apartment that Mr. Tinajero cannot lawfully lease.    Defendants
cite no legal authority for this position and, therefore, we do
not address it.
                                           -28-
S.E.2d 517, 522 (1999) (quoting Schofield v. Tea Co., 299 N.C.

582, 596, 264 S.E.2d 56, 65 (1980)).

             1.        Susan Caston

      With      respect      to   Ms.     Caston,     Mr.     Tinajero       argues    more

specifically that his due process rights and the Rules of the

Industrial      Commission        were    violated     when      the   Full    Commission

admitted Ms. Caston's report, but denied Mr. Tinajero's motion

to depose Ms. Caston.                Our courts have long held, based on

principles of due process and court procedure, that "[w]here the

Commission       allows       a   party    to    introduce       new   evidence        which

becomes the basis for its opinion and award, it must allow the

other     party        the    opportunity        to   rebut       or   discredit       that

evidence."        Goff v. Foster Forbes Glass Div., 140 N.C. App. 130,

134-35, 535 S.E.2d 602, 605-06 (2000).

      In Allen v. K-Mart, 137 N.C. App. 298, 302, 528 S.E.2d 60,

63 (2000), the defendants argued that the Commission had abused

its     discretion           in   considering         two        independent      medical

examinations as evidence without permitting the defendants to

depose or cross-examine either physician.                          This Court agreed,

holding      that       "[d]efendants       should        have     been      allowed     the

opportunity to discredit the doctors' reports."                        Id.

      This Court observed that "[t]he opportunity to be heard and

the     right     to     cross-examine          another     party's       witnesses     are
                                        -29-
tantamount to due process and basic to our justice system."                     Id.

at 304, 528 S.E.2d at 64.          Based on these principles, the Court

"agree[d] with defendants that the Commission manifestly abused

its   discretion    by    allowing      significant     new     evidence   to    be

admitted but denying defendants the opportunity to depose or

cross-examine     the    physicians,      or   requiring       plaintiff   to    be

examined by experts chosen by defendants."                     Id.     The Court,

therefore held "that where the Commission allows a party to

introduce new evidence which becomes the basis for its opinion

and award, it must allow the other party the opportunity to

rebut or discredit that evidence."             Id., 528 S.E.2d at 64-65.

      Here, the Commission specifically ordered that the parties

agree on a person to prepare a life care plan and conduct an

assessment   of    Mr.   Tinajero's      current      living    arrangements     at

defendants' expense.        This Court concluded that the prior appeal

was   interlocutory       and     dismissed      it     so      that   additional

proceedings related to the life care plan could take place.                     The

parties ultimately agreed upon Susan Caston as the person to

conduct   the   further     assessment.         In    denying    Mr.   Tinajero's

motion to depose Ms. Caston following completion of her report,

the   Commission    found       "that    her   report    provides      sufficient

information for the Full Commission to rule upon the remaining

issues in the case, and therefore, that a deposition at this
                                           -30-
point would only serve to further delay the entry of a final

Opinion and Award."

       The    Commission     then     ordered       that    "plaintiff's       motion     to

depose Ms. Caston is hereby DENIED, and Ms. Caston's report is

received into evidence."            In the opinion and award that followed

this ruling, the Commission repeatedly referenced Ms. Caston's

report as the support for various findings of fact.                              Further,

even       though    Ms.     Caston     had        not     addressed     all      of    the

recommendations made by Mr. Tinajero's life care planner, Mr.

Fryar, and Mr. Tinajero, in his motion to depose Ms. Caston, had

indicated that a deposition was necessary to obtain her opinion

regarding      the    appropriateness         of     those    recommendations,          the

Commission denied those recommendations.                     Mr. Tinajero was given

no    opportunity     to     establish      through        Ms.    Caston   that        those

recommendations were appropriate.

       This    case    is       indistinguishable          from    Allen    and        Goff.

Defendants, however, argue that Mr. Tinajero waived his request

for    a    deposition      and   agreed      to    the    Commission's        proceeding

without deposition of the experts in the case.                      Defendants point

to an 8 August 2012 letter from Mr. Tinajero's counsel to the

Full    Commission       that     highlighted       Mr.     Tinajero's     need    for    a

speedy resolution of his case and requested a ruling from the
                             -31-
Commission on the motion for depositions to further the final

resolution of the case:

               What the Plaintiff prays for now is the
         most    expeditious   ruling   possible.    We
         respectfully request that you promptly enter
         an order allowing us to notice the defense
         with the depositions outlined in our motion.
         Having more information and an expanded
         opinion from Caston can only help the
         Commission make a better ruling without
         causing further delays. . . .          We were
         disappointed that Caston's report did not
         have    the   quality    and   depth   that  a
         quadriplegic plaintiff deserves -- given the
         large number of spinal cord injury protocols
         to be followed -- so our intention was to
         flesh    out   those    opinions   through  an
         expedited deposition.

              Otherwise, we respectfully request that
         our motion be denied and that the Commission
         rule   on  the   balance  of  the   case  as
         expeditiously as possible.    We venture to
         guess that Zurich American Insurance Co.
         will continue to appeal the case back to the
         Court of Appeals, and we would like to get
         that process underway as soon as possible.
         We do not want any further delay to be
         experienced by this very young man who
         suffers the consequences of this drawn out
         legal proceeding.

(Emphasis added.)

    We hold that this letter -- essentially simply asking the

Commission to allow or deny the motion as soon as possible --

cannot reasonably be read as a waiver of Mr. Tinajero's request

to take the deposition of Ms. Caston.   Although the language of

the letter suggests frustration with the delay, it does not
                                        -32-
suggest that Mr. Tinajero was acquiescing in the admission of

the contents of Ms. Caston's report without objection.

      In sum, Mr. Tinajero properly requested leave to take Ms.

Caston's deposition once he received Ms. Caston's report.                       Under

Allen and Goff, the Commission erred in admitting Ms. Caston's

report without allowing Mr. Tinajero an opportunity to depose

Ms. Caston.        We, therefore, reverse the 16 October 2012 opinion

and   award    and    remand     for   further       proceedings,    including   the

entry of a new opinion and award following the deposition of Ms.

Caston.

              2.     V. Robert May

      Mr.     Tinajero    also    argues      that    the   Commission   erred    in

denying his request to depose Mr. May.                  As to this request, Mr.

Tinajero's motion asked that Mr. May's deposition be taken "for

the limited purpose of authenticating the attached submissions

and resulting report of the peer review of [Mr. Tinajero's] life

care plan [created by Mr. Fryar] by the International Commission

on Health Care Certification."                The Commission found as to that

motion that Mr. Tinajero sought "to rehabilitate Mr. Fryar and

his life care plan, an issue that has already been ruled upon by

the Commission."

      We    cannot       conclude      that     the     Commission     abused    its

discretion in denying a request to take a deposition for the
                                   -33-
sole purpose of asking the Commission to reconsider a prior

ruling.     Nevertheless,    because      we    acknowledge      that   it   is

possible Ms. Caston's testimony may provide a basis for renewing

the motion, our holding is without prejudice to Mr. Tinajero's

filing a new motion to take Mr. May's deposition following Ms.

Caston's deposition.

      B.   Transportation

      We   next   address   Mr.    Tinajero's      contention      that      the

Commission erred in refusing to order defendants to provide Mr.

Tinajero with the use of an adaptive van.             The Commission made

the   following   conclusion      of   law     regarding   Mr.     Tinajero's

transportation needs:

           Defendants are not required to purchase or
           lease adaptive transportation for plaintiff
           or for his use. McDonald v. Brunswick Elec.
           Membership Corp., 77 N.C. App. 753, 336
           S.E.2d 407 (1985). Defendants have provided
           reasonable     transportation    for   plaintiff
           through a private transportation service,
           access to public transportation, and a
           motorized wheelchair and shall continue to
           do so.    N.C. Gen. Stat. §97-2(19).      Should
           plaintiff     purchase    his    own    vehicle,
           defendants are obligated to modify the same
           to   accommodate      plaintiff's    disability.
           McDonald    v.   Brunswick    Elec.   Membership
           Corp., supra, at 753, 336 S.E.2d at 407.

      Mr. Tinajero argues that the Commission improperly relied

upon McDonald.     While we agree with Mr. Tinajero that McDonald

can no longer stand for the proposition that an employer may
                                          -34-
never   be    required      to   provide    a    plaintiff       with   a   specially-

equipped van, we do not agree that the Commission applied such a

rigid rule.

       In McDonald, 77 N.C. App. at 753, 336 S.E.2d at 407, the

plaintiff suffered a compensable injury by accident arising out

of his employment that resulted in the amputation of both of his

legs    and   his    left   arm.     The     Commission         concluded    that    the

defendants     were    required      to    provide        the    plaintiff    with    a

specially-equipped van on the grounds that it was a reasonable

and necessary rehabilitative service within the meaning of N.C.

Gen. Stat. § 97-29.         77 N.C. App. at 754, 366 S.E.2d at 407.

       On appeal, this Court reversed.                  Relying solely on Derebery

v. Pitt Cnty. Fire Marshall, 76 N.C. App. 67, 332 S.E.2d 94

(1985), this Court "conclude[d] that neither the phrase 'other

treatment or care' nor the term 'rehabilitative services' in

G.S. 97-29 can reasonably be interpreted to include a specially-

equipped van.         This language in the statute plainly refers to

services      or    treatment,     rather        than     tangible,     non-medically

related items such as a van; thus, it would be contrary to the

ordinary meaning of the statute to hold that it includes the van

purchased by plaintiff."             McDonald, 77 N.C. App. 756-57, 336

S.E.2d at 409.
                                                -35-
      Of course, subsequently, our Supreme Court reversed this

Court's decision on which McDonald's holding was founded and

expressly rejected the reasoning adopted by McDonald.                                Following

the Supreme Court's decision in Derebery, there can no longer be

a   black       letter    rule    that     a     defendant      cannot      be     required      to

provide a specially-adapted van and can only be required to

modify      a     van    already      owned       by    a    plaintiff.            This     Court

subsequently recognized that McDonald was superseded by Derebery

in Grantham v. Cherry Hosp., 98 N.C. App. 34, 39-40, 389 S.E.2d

822, 825 (1990).

      Under the Supreme Court's decision in Derebery, an employer

may be required to provide adaptive transportation, including

use   of    a     specially-adapted             van,    if   the    plaintiff's       existing

access      to    transportation           is    not    satisfactory         and    "for       some

exceptional             reason"       modification            of         those      modes        of

transportation           to    make   it    satisfactory           "is    not    practicable."

318   N.C.       at     203,    347     S.E.2d     at    821.        Our     review       of    the

Commission's          opinion     and    award     indicates        that     the    Commission

made the findings required by                      Derebery        even though it cited

McDonald as support for its conclusion.

      The         Commission            found          regarding          Mr.       Tinajero's

transportation needs:

                 Plaintiff has never possessed a driver's
                 license or owned a motor vehicle. Since his
                                -36-
           discharge from Shepherd Center, defendants
           have provided transportation for plaintiff
           through   a   private   company    for   medical
           visits, therapy, and recreation at Shepherd
           Center, and social activities.        Defendants
           also assisted plaintiff in obtaining his
           MARTA pass for the public transportation
           system in Atlanta.       He has an electric
           wheelchair he uses for local trips.          Dr.
           Bilsky and Dr. Scelza considered these
           reasonable    transportation      options    for
           plaintiff.   Defendants are not obligated to
           purchase a vehicle for plaintiff, but would
           be obligated to modify any vehicle plaintiff
           purchases for his own transportation to make
           it accessible to plaintiff's needs.          The
           Full     Commission      finds      that     the
           transportation    services    currently    being
           provided    plaintiff    by    defendants    are
           reasonable.

     In other words, the Commission found that Mr. Tinajero's

access to transportation is satisfactory at this time.               This

finding is supported by competent evidence and, therefore, is

binding.   Under Derebery and given this finding, the Commission

was not required to mandate that defendants purchase a vehicle

for Mr. Tinajero.     We, therefore, affirm this portion of the

Commission's opinion and award.4

     C.    Taxation of Attorneys' Fees and Costs

     Mr. Tinajero next contends that the Full Commission erred

by   failing   to   tax   defendants   with   attorneys'      fees    for

     4
      We note that on remand, the Commission's decision regarding
transportation may be affected by Mr. Tinajero's deposition of
Ms.    Caston   since    her   report    specifically   addressed
transportation.
                                       -37-
unreasonably pursuing their defense of this action before the

Commission pursuant to N.C. Gen. Stat. § 97-88.1 (2013).                     Under

that statute, "[i]f the Industrial Commission shall determine

that   any   hearing      has   been   brought,   prosecuted,        or   defended

without reasonable ground, it may assess the whole cost of the

proceedings including reasonable fees for defendant's attorney

or   plaintiff's     attorney     upon   the    party   who    has   brought      or

defended them."      Id. (emphasis added).

       The purpose of N.C. Gen. Stat. § 97-88.1 is to prevent

"'stubborn, unfounded litigiousness' which is inharmonious with

the primary purpose of the Workers' Compensation Act to provide

compensation    to     injured    employees."      Beam       v.   Floyd's   Creek

Baptist   Church,    99    N.C.   App.   767,   768,    394    S.E.2d     191,   192

(1990) (quoting Sparks, 55 N.C. App. at 664, 286 S.E.2d at 576).

The statute's reference to the Commission's assessing "the whole

cost" reveals the legislature's intent that the Commission would

decide this issue at the end of the litigation when "the whole

cost" would be known.

       Here, the Commission concluded in its interlocutory order

of 13 September 2010 with regard to defendants' liability under

N.C. Gen. Stat. § 97-88.1:

             Defendants did not defend this claim in an
             unreasonable manner or without reasonable
             grounds and, therefore, plaintiff is not
             entitled to attorney's fees pursuant to N.C.
                                     -38-
            Gen. Stat. §97-88.1;           Sparks v. Mountain
            Breeze Restaurant, 55          N.C. App. 663, 286
            S.E.2d 575 (1982).

Especially since the Commission's 13 September 2010 opinion and

award     ordered      the   preparation    of   a    life    care        plan,   the

Commission should not, at that stage, have decided whether Mr.

Tinajero was entitled to attorneys' fees under N.C. Gen. Stat. §

97-88.1.     Instead, the proper point in the proceedings for the

Commission to address this issue was in the Commission's final

disposition of the case in its 16 October 2012 order.

    We, therefore, reverse the Commission's determination that

Mr. Tinajero is not entitled to fees under N.C. Gen. Stat. § 97-

88.1.       On   remand,      following    the   taking      of     Ms.     Caston's

deposition, the Commission shall revisit whether such an award

is appropriate and, if so, what the amount of any award should

be, in its final opinion and award.

    Mr. Tinajero further argues that the Commission erred by

failing to tax all costs against defendants, including the costs

related    to    Mr.    Tinajero's   certified       life    care    plan.        The

Commission concluded in its 13 September 2010 opinion and award:

            The report and life care plan prepared by
            Michael Fryar in this case was not an
            unbiased, objective, fair, and balanced
            assessment and is not accepted by the Full
            Commission as such. . . .     Defendants are
            not required to pay for Mr. Fryar's report,
            because the same does not constitute a valid
                                         -39-
            "rehabilitative service" within the meaning
            of N.C. Gen. Stat. §97-2(19).

Because    we     have    remanded     for      the    taking       of   Ms.    Caston's

deposition and Mr. Tinajero has indicated his intent to question

Ms. Caston regarding various components of Mr. Fryar's plan, the

Commission should, following that deposition, revisit whether

Mr. Fryar's report constituted a valid "rehabilitative service"

and    whether     defendants        should     pay     for        the   cost    of     the

preparation of that report.

       Finally,    Mr.     Tinajero     argues    that    defendants           should    be

assessed attorney's fees for pursuing the prior interlocutory

appeal.     As     Mr.    Tinajero     acknowledges,          he    requested     in    his

motion to dismiss filed with this Court in the prior appeal that

this Court instruct the Commission on remand to determine what

amount of attorneys' fees and costs should be taxed against

defendants as sanctions.             Although this Court granted the motion

to    dismiss,    it     did   not   address     Mr.    Tinajero's        request       for

attorneys' fees and costs and, therefore, implicitly denied that

request.     We are bound by the prior panel's failure to award

attorneys' fees and costs based on the interlocutory appeal and

cannot, in this later appeal, determine that fees and costs

should have been awarded.

                                      Conclusion
                                            -40-
      In   sum,   we    affirm        the    Commission's       determination       that

defendants    were          required        to     provide     Mr.    Tinajero      with

handicapped accessible housing and affirm its determination that

defendants currently are providing reasonable transportation for

Mr.   Tinajero.        We    reverse    the        Commission's      16   October   2012

opinion and award for failure to allow Mr. Tinajero to take the

deposition of Ms. Caston and remand to allow the taking of that

deposition and entry of a new opinion and award taking into

account not only Ms. Caston's report but also her deposition.

      Finally, we reverse the Commission's determination that Mr.

Tinajero was not entitled to attorneys' fees under N.C. Gen.

Stat. § 97-88.1 and was not entitled to have defendants pay for

the cost of the preparation of Mr. Fryar's life care plan and

remand for a determination of those two issues at the completion

of the proceedings on remand.


      Affirmed in part; reversed in part.

      Judge ELMORE concurs.

      Judge   DILLON        concurs    in        part   and   dissents    in   part   by

      separate opinion.
                                 NO. COA13-9

                    NORTH CAROLINA COURT OF APPEALS

                            Filed: 6 May 2014

SANTOS TINAJERO,
     Employee,
     Plaintiff,

      v.                                    North Carolina
                                            Industrial Commission
                                            I.C. No. 091464
BALFOUR BEATTY INFRASTRUCTURE, INC.,
     Employer,

ZURICH AMERICAN INSURANCE COMPANY,
     Carrier,
     Defendants.


      DILLON, Judge, concurring in part and dissenting in part.


      I agree with the majority on all issues except with regard

to the issue addressed in Section II.B. of its opinion, which

addresses the Full Commission’s requirement that Defendants pay

for Plaintiff’s housing.         Accordingly, I concur, in part, and

dissent, in part.

      On the housing issue, Defendants contend, in part, that the

Commission erred by ordering Defendants to pay for the entire

lease expense of Plaintiff’s handicapped accessible apartment.

The Commission ordered Defendants to pay, inter alia, weekly,

wage-replacement    benefits     of   “$496.77   for     the   remainder   of

Plaintiff’s lifetime as provided by N.C. Gen. Stat. § 97-31(17)”

and   the   full   amount   of   Plaintiff’s     lease    payments   for   a
                                         -2-
handicapped accessible apartment as “other treatment” under N.C.

Gen. Stat. § 97-25.            The majority concluded that the Commission

did not err.          I agree with the majority that Defendants are,

indeed, obligated to provide benefits to cover Plaintiff’s lease

payment in this case.           However, I believe a portion of the lease

payment is being provided through the weekly benefits Defendants

are paying to cover Plaintiff’s ordinary expenses of life; and,

therefore,      I     believe    the     Commission     erred      by    classifying

Plaintiff’s entire lease payment as “other treatment” under G.S.

97-25.

      It is certainly within the discretion of the Commission to

make an award for “other treatment” under G.S. 97-25.                       Espinosa

v. Tradesource, Inc., __ N.C. App. __, __, 752 S.E.2d 153, 159

(2013).     However, the Commission’s discretion to make such an

award is limited to that which is reasonably “required to effect

a   cure   or   give    relief[.]”        Id.   at    __,    752   S.E.2d    at   163

(citations      omitted).         In     this   case,       Plaintiff’s     accident

required his housing arrangement to be modified.                        Prior to the

accident, he rented an apartment, living with two other people.

Now, he requires a more expensive apartment that is handicapped

accessible      and    which    allows   for    24-hour     attendant     care.     I

believe in this case that some portion of Plaintiff’s lease
                                              -3-
payments is an ordinary expense of life and some portion is an

expense      designed    to      “effect      a     cure    and    give       relief.”       By

classifying      the     entire         amount       as     “other       treatment,”         the

Commission is, in effect, providing Plaintiff a double recovery

of    that    portion       of   his     lease      expense       which      represents       an

ordinary expense of life, since he is already being compensated

for this portion from the weekly benefits.                              I believe this is

unreasonable     and    is       not    a   result        that    was    intended      by    our

General      Assembly    or      required      by    decisions          of    our   appellate

courts.

       The majority differentiates this case from Espinosa, supra,

in which we affirmed the Full Commission’s approach to classify

a    portion    of    the     injured       worker’s        adaptive         housing    as    an

ordinary expense of life.               Specifically, the majority points out

that,   unlike       Espinosa,         Defendants      in       this    case    were    paying

Plaintiff’s entire housing expenses while Plaintiff was housed

at a long-term care facility and were willing to continue paying

his entire housing costs if he remained at the long-term care

facility,      rather       than       move    into        an    apartment.            Whether

Defendants were, in fact, legally obligated to pay the entire

housing cost of a nursing home or long-term care facility for

Plaintiff is not before this Court, since the Commission has
                                   -4-
determined that Plaintiff should live in an apartment.                 However,

I do not believe that Defendants’ prior willingness to pay the

entire cost for Plaintiff’s housing while he remained in a long-

term   care   facility   is   dispositive    on    the    issue   of    whether

Defendants    are   legally   obligated     to    pay    the   entire    rental

expense of Plaintiff’s apartment as “other treatment” under G.S.

97-25.
