                               NO. COA14-313

                     NORTH CAROLINA COURT OF APPEALS

                        Filed: 16 September 2014


THOMAS F. ADCOX,
          Employee,
          Movant,

    v.                                  Johnston County
                                        No. 13 CVS 1106
CLARKSON BROTHERS CONSTRUCTION
COMPANY,
          Employer,
and
UTICA MUTUAL INSURANCE COMPANY,
          Carrier,
          Defendants.


    Appeal by plaintiff from order entered 17 September 2013 by

Judge Thomas H. Lock in Johnston County Superior Court.              Heard

in the Court of Appeals 28 August 2014.


    R. James Lore, Attorney at Law, by R. James Lore; and
    Nicholls & Crampton, PA, by Nicholas J. Dombalis, II, for
    plaintiff-appellant.

    Hedrick, Gardner, Kincheloe & Garofalo, LLP, by Kari L.
    Schultz and M. Duane Jones, for defendants-appellees.


    GEER, Judge.


    In   a   27    March    2008   opinion   and   award,   the    deputy

commissioner approved an attorneys' fee of 25% of the attendant

care compensation awarded to plaintiff Thomas F. Adcox for his

wife's   services.         Although   defendants    Clarkson      Brothers
                                               -2-
Construction Company and Utica Mutual Insurance Company asked

the Full Commission to reverse this award, the Commission, in a

25     November       2008       opinion      and     award,    affirmed          the       deputy

commissioner's opinion and award with modifications only as to

the    amount       and     rate   of    pay    for    the     attendant         care   --     the

Commission did not specifically address the 25% attorneys' fee

award.

       Subsequently,            plaintiff      filed    a    motion   seeking          an    order

requiring that the 25% be paid directly to plaintiff's counsel

in    order    to     alleviate      the      bookkeeping      burden       on    plaintiff's

wife.       Defendants contended -- and the Commission agreed in an

order entered 10 December 2012 -- that the Commission's November

2008    opinion       and       award,   by    not     specifically         mentioning         the

attorneys'          fees,       necessarily         denied     plaintiff's         attorneys'

request       for    approval      of    a    fee.      Plaintiff      appealed         to     the

superior court, and the trial court dismissed his appeal on the

grounds that the Commission had not, in its December 2012 order,

denied a request for fees.

       We     cannot      agree     with      the     Commission's      and       defendants'

position       that       the    November       2008    opinion       and    award          denied

plaintiff's attorneys' request for fees.                        Defendants' contention

that     the        Commission          sub    silentio        reversed          the        deputy

commissioner's award of fees is not tenable and is inconsistent
                                           -3-
with    controlling        authority.            The    Commission's            silence    in

November 2008 on the issue of the deputy commissioner's award of

attorneys'     fee   can    be     interpreted         in   only    one    of    two   ways:

either the Commission affirmed the deputy commissioner or the

Commission did not address the issue.

       In either event, defendants bore the burden to appeal that

opinion and award to this Court.                 When they failed to do so, the

deputy commissioner's approval of an attorneys' fee became the

law of the case, and the Commission had no authority to declare,

in    December    2012,     that    the   original          panel   had     reversed      the

deputy commissioner and denied plaintiff's request for approval

of an attorneys' fee.              Consequently, we reverse and remand to

the    trial     court    for    further      remand        to   the      Commission      for

reconsideration of plaintiff's motion.

                                          Facts

       On 28 February 1983, while employed by defendant Clarkson,

plaintiff suffered an admittedly compensable head injury that

left him permanently and totally disabled.                          Defendant Clarkson

and    defendant         Utica     National       Insurance         Group       agreed     to

compensate plaintiff for his disability at a weekly rate of

$248.00.

       In February 2003, the parties filed a settlement agreement

pursuant to which defendants agreed to pay plaintiff a lump sum
                                              -4-
of   $250,000.00         in    reimbursement        for    attendant        care     services

provided by plaintiff's family members, including his wife Joyce

Adcox,     from     28    February      1983      until    3     February        2003.        The

Commission        approved       a     25%    attorneys'         fee      for     plaintiff's

counsel, which was deducted from the sum due plaintiff and paid

directly       to     plaintiff's         counsel.             Thereafter,         defendants

authorized and began providing plaintiff with 60 hours of in-

home professional attendant care services per week, provided by

Kelly Home Health Services.

      In 2007, Mrs. Adcox retired, and plaintiff moved to have

defendants pay Mrs. Adcox directly for attendant care services

instead    of     Kelly       Services.       The   matter          was   heard    by    Deputy

Commissioner John B. DeLuca on 30 August 2007.                                   On 27 March

2008,    the    deputy        commissioner        entered      an     opinion      and    award

allowing Mrs. Adcox to assume attendant care responsibilities

seven days a week at a rate of $188.00 per day.                                 In his award,

the deputy commissioner ordered that "[a]n attorneys' fee of 25%

of   the     attendant          care    compensation           is     approved      for       the

Plaintiff's counsel."

      Both      parties       appealed       to   the     Full      Commission.          On    25

November 2008, the Full Commission entered an opinion and award

affirming       the   deputy      commissioner's           opinion        and    award    "with

modifications including the amount of attendant care and rate of
                                          -5-
pay for said care."         The Full Commission allowed Mrs. Adcox to

assume attendant care responsibilities seven days per week for

16 hours per day at a rate of $10.00 per hour.                   The opinion and

award    did     not    mention     the    25%    attorneys'      fee    award     to

plaintiff's      counsel.     Plaintiff         appealed    to   this    Court    for

reasons unrelated to the 25% attorneys' fee award.                       Defendants

chose not to appeal.         On 8 December 2009, this Court affirmed

the 25 November 2008 opinion and award.                   See Adcox v. Clarkson

Bros. Constr. Co., 201 N.C. App. 446, ___ S.E.2d ___, 2009 WL

4576065, 2009 N.C. App. LEXIS 2308 (2009) (unpublished).

    On 12 July 2012, plaintiff filed a motion with the Full

Commission requesting that it direct payment of the attorneys'

fees to plaintiff's counsel.               The motion explained that "Mrs.

Adcox is responsible for her own income tax record-keeping and

reporting of the attendant care income she receives.                       For tax

purposes the failure by the carrier to direct separate checks

makes it appear as though Mrs. Adcox's attendant care income is

higher    than     it    actually     is."        Plaintiff      requested       that

defendants be ordered to deduct 25% of the compensation payable

to Mrs. Adcox to be paid directly to plaintiff's counsel because

the record keeping "has become burdensome for Mrs. Adcox."

    A new panel of commissioners heard plaintiff's 2012 motion.

Commissioners      Linda    Cheatham       and    Tammy     R.   Nance    replaced
                                     -6-
Commissioners    Dianne   C.    Sellers     and    Laura   Kranifeld   Mavretic

from the original 2008 panel.          Commissioner Danny Lee McDonald

served on both panels.         On 10 December 2012, the Full Commission

entered an order denying plaintiff's motion.

    The Commission found that both parties had appealed Deputy

Commissioner DeLuca's opinion and award to the Full Commission.

Regarding defendants' appeal, the Commission noted that although

defendants had not specifically assigned error to the attorneys'

fee award in their form 44, they had generally challenged each

paragraph   of   the   deputy's     award    and    had    addressed   the   25%

attorneys' fee award in their brief to the Commission.                       The

Commission then concluded:

                  The Full Commission's Opinion and Award
            filed    on   November   25,   2008   directs
            Defendants to pay Mrs. Adcox for attendant
            care services from the date of the filing of
            the Opinion and Award at a rate of $10.00
            per hour, 7 days per week, 16 hours per day.
            The Opinion and Award does not include an
            award of attorneys' fees for Plaintiff's
            counsel.

                 Plaintiff      appealed      the    Full
            Commission's decision to the North Carolina
            Court of Appeals.     Based upon a review of
            the Court's Opinion, it does not appear that
            Plaintiff   assigned    error  to    the Full
            Commission's decision in its Opinion and
            Award not to award an attorneys' fee to
            Plaintiff's counsel.

                 As Plaintiff seeks to have the Full
            Commission direct Defendants to deduct and
            pay   directly  to  counsel  for  Plaintiff
                                  -7-
          attorneys' fees which have not been awarded
          by the Full Commission, Plaintiff's Motion
          to Direct Payment of Attorneys' Fees to
          Plaintiff's Counsel is hereby DENIED.

Commissioner McDonald -- the one commissioner who had served on

the 25 November 2008 panel -- dissented without opinion.

    On   12   December   2012,   plaintiff   appealed   the    order   to

superior court pursuant to N.C. Gen. Stat. § 97-90.           On 19 June

2013, defendants moved to dismiss plaintiff's appeal pursuant to

Rules 12(b)(1), (2), and (6) of the Rules of Civil Procedure.

On 25 June 2013, plaintiff moved to strike defendants' motion to

dismiss for lack of standing.

    After a 26 August 2013 hearing, the trial court entered an

order dismissing plaintiff's appeal on 17 September 2013.              The

trial court took judicial notice of the 25 November 2008 opinion

and award and the 10 December 2012 order of the Full Commission.

It found in pertinent part:

               (2) that the December 10, 2012 Order
          from which Movant now purportedly appeals
          did not deny any attorneys fees, but simply
          clarified   that the   Commission  had  not
          awarded attorneys fees in the November 25,
          2008 Order;

               (3) that Movant's litigated request for
          attorney fees was denied on November 25,
          2008;

               (4) that Movant's current request for
          attendant care attorney fees per N.C. Gen.
          Stat. § 9-90 [sic] should be barred by § 97-
          90 and the doctrine of res judicata;
                                -8-


              (5) that the November 25, 2008, Order
         of the North Carolina Industrial Commission
         and the parties' appeal therefrom to the
         North Carolina Court of Appeals, represented
         a final judgment on the merits as to the
         issue of any attorney fee based on a
         percentage    of  attendant   care   medical
         benefits provided to Movant pursuant to
         North Carolina General Statutes § 97-25,
         which is the only claim at issue in this
         litigation[.]

The trial court, therefore, dismissed plaintiff's appeal with

prejudice.   Plaintiff timely appealed to this Court.

                            Discussion

    Plaintiff first contends that defendants lacked standing to

oppose both his motion to the Full Commission and his appeal

from the 10 December 2012 decision of the Full Commission to

superior court.    As explained by this Court in Diaz v. Smith,

___ N.C. App. ___, ___, 724 S.E.2d 141, 144 (2012) (internal

citations and quotation marks omitted):

         The Workers' Compensation Act provides that
         an appeal from an opinion and award of the
         Industrial Commission is subject to the same
         terms and conditions as govern appeals from
         the superior court to the Court of Appeals
         in ordinary civil actions.     Under N.C. Gen.
         Stat.    §   1–271    (2009),   "[a]ny   party
         aggrieved" is entitled to appeal in a civil
         action.    A party aggrieved is one whose
         legal rights have been denied or directly
         and injuriously affected by the action of
         the trial tribunal.      If the party seeking
         appeal is not an aggrieved party, the party
         lacks   standing   to   challenge   the  lower
         tribunal's action and any attempted appeal
                                           -9-
            must be dismissed.

       Plaintiff argues that because his motion to direct payments

to plaintiff's counsel does not affect the total amount to be

paid by defendants, defendants are not an "aggrieved" party.

Defendants counter that they are an "aggrieved" party because

(1) "if Plaintiff's Counsel is awarded attorney's                                 fees as a

result of this appeal, Defendants would either be required to

pay an additional 25% in the form of attorneys [sic] fees, or

fund   Plaintiff's       Counsel's        attorney's          fees    by    reducing      the

amount     of    compensation       to     Mrs.       Adcox,        thereby       subjecting

Defendants to liability for compensation owed to Mrs. Adcox, as

mandated    in    the     Opinion        and     Award"       and     (2)     "allowing     a

plaintiff's      counsel      to    have       a      pecuniary       interest       in   an

authorized medical provider could create a conflict between his

obligations to represent his client and a defendant's obligation

to manage medical treatment pursuant to N.C. Gen. Stat. § 97-

25."

       Because    of    our   resolution         of    this    appeal,      we     need   not

decide     whether      defendants       have      standing          in    this    case    to

challenge an award of attorneys' fees to plaintiff's attorney

that does not affect the total amount payable by defendants.                              We

express     no     opinion      whether          defendants'          contentions         are
                                           -10-
sufficient to make them aggrieved parties for purposes of an

appeal.

    Plaintiff's primary argument on appeal is that the trial

court   erred     in    finding     that    the   Full    Commission     denied    his

request for attorneys' fees in its 25 November 2008 opinion and

award and, as a result, erred in dismissing his appeal on the

grounds    of   res     judicata.       Plaintiff        argues   that   the     deputy

commissioner's         award   of    attorneys'        fees   became     final     when

defendants did not specifically assign as error the award of

attorneys' fees in their Form 44 as required by Rule 701 of the

Workers'   Compensation         Rules      of   the   North   Carolina    Industrial

Commission.       Alternatively, plaintiff argues that the Commission

affirmed    the    award       of   attorneys'        fees.       We   review     these

questions of law de novo.            McAllister v. Wellman, Inc., 162 N.C.

App. 146, 148, 590 S.E.2d 311, 312 (2004).

    Rule 701 provides:

                 (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). . . .
                                        -11-


                (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.

(Emphasis added.)

    This Court has emphasized that "the portion of Rule 701

requiring appellant to state with particularity the grounds for

appeal may not be waived by the Full Commission.                Without notice

of the grounds for appeal, an appellee has no notice of what

will be addressed by the Full Commission."                Roberts v. Wal-Mart

Stores,   Inc.,   173    N.C.    App.    740,    744,   619   S.E.2d   907,   910

(2005).   "Such notice is required for the appellee to prepare a

response to an appeal to the Full Commission."                Wade v. Carolina

Brush Mfg. Co., 187 N.C. App. 245, 252, 652 S.E.2d 713, 717

(2007).     Thus,       "the    penalty    for    non-compliance       with   the

particularity requirement is waiver of the grounds, and, where

no grounds are stated, the appeal is abandoned."                  Id. at 249,

652 S.E.2d at 715.

    Defendants argue that they properly appealed the issue of

attorneys' fees to the Full Commission because they specifically

listed Deputy Commissioner DeLuca's Award, which included the

award of attorneys' fees, in the third assignment of error on

their Form 44 Application for review:

           Deputy Commissioner John B. DeLuca's Award,
                                           -12-
               dated March 27, 2008, on the grounds that it
               is   based   upon  Findings   of  Fact   and
               Conclusions of Law which are erroneous, not
               supported by competent evidence or evidence
               of record, and are contrary to the competent
               evidence of record, and are contrary to law:
               Award Nos. 1-3.

       This    assignment       of    error    is   similar       to   the       appellant's

assignment of error in Walker v. Walker, 174 N.C. App. 778, 782,

624    S.E.2d    639,     642    (2005),       which      asserted      generally         that

several rulings of the trial court were "'erroneous as a matter

of    law.'"      In    concluding      that    this      assignment        of    error   was

insufficient under the 2005 version of Rule 10 of the Rules of

Appellate Procedure, this Court held that the "assertion that a

given finding, conclusion, or ruling was 'erroneous as a matter

of law'" violated Rule 10 because it "completely fail[ed] to

identify the issues actually briefed on appeal."                              Walker, 174

N.C. App. at 782, 624 S.E.2d at 642.                         Instead, "'[s]uch an

assignment      of     error    is    designed      to    allow     counsel        to   argue

anything and everything they desire in their brief on appeal.

This assignment -- like a hoopskirt -- covers everything and

touches   nothing.'"            Id.   at   783,     624    S.E.2d      at    642   (quoting

Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 759, 606 S.E.2d

407, 409 (2005)).

       Similarly, here, defendant's assignment of error "'covers

everything and touches nothing.'"                      Id. (quoting Wetchin, 167
                                      -13-
N.C. App. at 759, 606 S.E.2d at 409).                     Although it states a

general    objection    to   each    paragraph       of     the    award    (without

specifically mentioning the attorneys' fee award), it does not

state the basis of any objection to the attorneys' fee award

with sufficient particularity to give plaintiff notice of the

legal issues that would be addressed by the Full Commission such

that he could adequately prepare a response.                      See Roberts, 173

N.C. App. at 744, 619 S.E.2d at 910.

    Defendants'     third    assignment       of    error    also    is     in   stark

contrast   to   defendants'    fourth       assignment       of    error:    "Deputy

Commissioner John B. DeLuca's Award dated March 27, 2008, in

that it failed to award attorney fees as requested by Defendants

pursuant to §97-88.1."        In this assignment of error, defendants

indicated specifically which particular aspect of the award they

challenged.     Significantly, defendants did not include a similar

assignment of error for the award of attorneys' fees challenged

here.

    Defendants         nonetheless        contend     that        they     met    the

particularity     requirement        by    addressing        the     question      of

attorneys' fees in their brief to the Full Commission, citing

Cooper v. BHT Enters., 195 N.C. App. 363, 672 S.E.2d 748 (2009).

In Cooper, the plaintiff argued that, pursuant to Roberts, the

defendant's failure to file a Form 44 constituted an abandonment
                                   -14-
of defendants' grounds for appeal to the Full Commission, and

therefore the Commission erred by hearing the appeal.                Id. at

368, 672 S.E.2d at 753.       This Court disagreed, reasoning that

          unlike the appealing plaintiff in Roberts,
          defendants in the present case complied with
          Rule 701(2)'s requirement to state the
          grounds for appeal with particularity by
          timely filing their brief after giving
          notice   of   their   appeal    to   the   Full
          Commission.     Additionally, plaintiff does
          not argue that she did not have adequate
          notice of defendants' grounds for appeal.
          Plaintiff asserts only that defendants'
          failure to file a Form 44 should have been
          deemed an abandonment of defendants' appeal.
          Since both this Court and the plain language
          of the Industrial Commission's rules have
          recognized the Commission's discretion to
          waive   the    filing    requirement    of   an
          appellant's Form 44 where the appealing
          party has stated its grounds for appeal with
          particularity in a brief or other document
          filed with the Full Commission, we overrule
          these assignments of error.

Id. at 368-69, 672 S.E.2d at 753-54.

    In   other   words,   failure    to     file   a   Form   44   does    not

automatically result in a mandatory dismissal of the appeal by

the Industrial Commission -- it is within the discretion of the

Commission whether to deem the grounds for appeal waived.                   In

determining   whether   the    Commission    abused    its    discretion   in

deciding not to deem an issue on appeal waived, this Court in

Cooper considered whether the appellant provided the appellee

with adequate notice of the grounds for appeal through other
                                            -15-
means such as addressing the issue in its brief to the Full

Commission.

       Here, unlike in Cooper, the Commission did not explicitly

address the issue purportedly raised by defendants on appeal in

its opinion and award.             Under Cooper, it would not have been an

abuse of discretion for the Commission to address the attorneys'

fee issue, but it is unclear whether the Commission considered

the issue or not.           Although defendants contend that the "Full

Commission Award removed the appealed prior award of attendant

care attorney fees and awarded attendant care compensation to be

paid   directly     to    Mrs.     Adcox[,]"       nothing      in   the    Commission's

Opinion    and    Award         indicates      that      it   was    "remov[ing]"       the

attorneys' fee award.             Defendants have cited no authority -- and

we have found none -- supporting their position that silence by

the    Commission        regarding         a    determination         by    the      deputy

commissioner can amount to reversal.

       In fact, this Court has already rejected such a contention

in Polk v. Nationwide Recyclers, Inc., 192 N.C. App. 211, 664

S.E.2d 619 (2008).          In Polk, the plaintiff argued that the Full

Commission       failed     to     consider        all    the    evidence      presented

because,     unlike       the     deputy       commissioner's        order,    the     Full

Commission    did     not       make   findings       regarding       all     the    issues
                                       -16-
presented on appeal.       Id. at 218, 664 S.E.2d at 624.                 The Court

rejected the plaintiff's argument, reasoning:

            [I]n   this   case,   the   Full  Commission's
            opinion states outright that it "affirms the
            Opinion and Award of Deputy Commissioner
            Deluca with modifications." . . .     That is,
            the Full Commission's opinion is not an
            order meant to stand on its own, but rather
            a modification of the deputy commissioner's
            order.    As plaintiff herself states, the
            facts at issue were included in the deputy
            commissioner's order.     We see no reason to
            require that such an order restate all the
            findings of fact and conclusions of law from
            the    original     order    that   need    no
            modification.    Considering that defendants
            filed   an   appeal    containing   thirty-two
            alleged errors, it is not surprising that
            the Full Commission did not address each
            individually.

Id.     This Court assumed with regard to the omitted findings that

the     Commission    wished    to    affirm     the    deputy     commissioner's

opinion and award, nothing else appearing in the opinion and

award to the contrary.         Id. at 218-19, 664 S.E.2d at 624.

      Similarly, here, the Full Commission's opinion and award

states    that   it    "affirms      the     Opinion    and     Award    of   Deputy

Commissioner DeLuca with modifications including the amount of

attendant care and rate of pay for said care."                         As such, the

Full Commission's opinion "is not an order meant to stand on its

own."    Id. at 218, 664 S.E.2d at 624.            It is undisputed that the

deputy     commissioner    awarded         attorneys'    fees     to    plaintiff's
                                     -17-
counsel, and there is no indication that the Commission intended

to modify that award.

      Indeed,    plaintiff   correctly      notes   that   under   N.C.   Gen.

Stat. § 97-90(c) (2013), the statute authorizing the award of

attorneys' fees in this instance, any decision by the Commission

to deny attorneys' fees must be supported by specific findings.

N.C. Gen. Stat. § 97-90(c) provides:

           If an attorney has an agreement for fee or
           compensation under this Article, he shall
           file a copy or memorandum thereof with the
           hearing officer or Commission prior to the
           conclusion of the hearing. If the agreement
           is not considered unreasonable, the hearing
           officer or Commission shall approve it at
           the time of rendering decision.       If the
           agreement is found to be unreasonable by the
           hearing officer or Commission, the reasons
           therefor   shall  be   given   and  what  is
           considered to be reasonable fee allowed.

The lack of findings in the November 2008 opinion and award to

justify a denial of attorneys' fees is contrary to defendants'

contention and the Commission's assumption that the Commission

in 2008 intended to deny the fee request.

      In short, based on a review of the November 2008 opinion

and award, either the Commission intended to affirm the deputy

commissioner's award, or, alternatively, the Full Commission did

not   consider    the   issue   --   whether    through    inadvertence    or

because it deemed the matter waived.           Nothing in the opinion and

award suggests and no authority exists that we can find, which
                                        -18-
would permit us to conclude that the Commission reversed the

deputy   commissioner's         award   and    silently   denied    plaintiff's

counsel the 25% attorneys' fee.

     Assuming, without deciding, that defendants had standing to

challenge the deputy commissioner's award of attorneys' fees,

the burden was on defendants to obtain a ruling from the Full

Commission.        When   the    Full   Commission    failed   to   explicitly

reverse the deputy commissioner's award, defendants could have

requested reconsideration and, if the Commission did not rule in

their favor, appealed to this Court.                 See Hurley v. Wal-Mart

Stores, Inc., ___ N.C. App. ___, ___, 723 S.E.2d 794, 798 (2012)

(holding where Commission failed to address defendants' appeal

of deputy commissioner's award of attorneys' fees to plaintiff's

counsel in its opinion and award, defendants properly appealed

to   this   Court     after      Commission      denied    their    motion    to

reconsider).

     This Court has held that "when a party fails to appeal from

a tribunal's decision that is not interlocutory, the decision

below becomes 'the law of the case' and cannot be challenged in

subsequent proceedings in the same case."                 Boje v. D.W.I.T.,

L.L.C., 195 N.C. App. 118, 122, 670 S.E.2d 910, 912 (2009).

Here, when defendants failed to appeal the Full Commission's 25

November    2008    opinion      and    award,   defendants    abandoned     any
                                      -19-
contention      that   the   ruling     was   erroneous,    and    the   deputy

commissioner's award of attorneys' fees became the law of the

case.

       Under the law of the case doctrine, defendants could not

attack    and   the    Commission     could   not   reverse   the    award   of

attorneys' fees.        See id. (holding that "since [defendant] did

not appeal Deputy Commissioner Berger's 2003 opinion and award

finding that it did not have workers' compensation insurance

coverage on the date of plaintiff's accident," this finding was

the law of the case, and defendant "was barred from relitigating

that issue in subsequent proceedings").

       Because the November 2008 opinion and award left the deputy

commissioner's award standing, plaintiff's 12 July 2012 motion

to direct payment of attorneys' fees to plaintiff's counsel was

not,     as   defendants     contend,    a    motion   to   re-litigate      the

substantive issue whether attorneys' fees had been awarded by

the Full Commission.         Rather, it was simply a procedural motion

regarding the way in which the awarded fees would be paid.                   The

Commission's December 2012 order, as a result, had the effect of

improperly denying plaintiff's attorneys' fees.                   Consequently,

plaintiff was entitled to appeal the December 2012 order to

superior court pursuant to N.C. Gen. Stat. § 97-90, and the

superior court erred in dismissing plaintiff's appeal.
                                          -20-
       Defendants, nevertheless, contend that the Commission and

the superior court did not have authority to award plaintiff's

counsel fees under the rule set forth in Palmer v. Jackson, 157

N.C.      App.   625,    579     S.E.2d    901    (2003).        This     argument      --

addressing the merits of plaintiff's request for attorneys' fees

--   is    not    properly     before     this    Court    because      the    award    of

attorneys' fees is the law of the case.                    See Barrington v. Emp't

Sec. Comm'n, 65 N.C. App. 602, 605, 309 S.E.2d 539, 541 (1983)

(declining to consider appellant's legal arguments when bound by

law of the case).          Defendants' arguments should have been raised

in the first appeal to this Court.                     Nothing in this opinion

expresses any view regarding defendants' arguments under Palmer.

       We, therefore, reverse and remand to the superior court for

remand     to    the    Commission.        On    remand,    since    the      Commission

denied      plaintiff's        motion     under    a   misapprehension          of     law

regarding        the    effect    of    its     2008   opinion      and    award,      the

Commission must reconsider its ruling on that motion.


       Reversed and remanded.

       Judge STEELMAN concurs.

       Judge ROBERT N. HUNTER, JR. concurred in this opinion prior

       to 6 September 2014.
