             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-333

                             Filed: 5 December 2017

North Carolina Industrial Commission, No. 13-717855

HARRISON HALL, Employee-Plaintiff,

            v.

U.S. XPRESS, INC., Employer,

and

LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants.


      Appeal by plaintiff and defendants from Opinion and Award entered 7

December 2016 by the North Carolina Industrial Commission. Heard in the Court of

Appeals 20 September 2017.


      R. James Lore, Attorney at Law, and Law Office of James S. Aven, by James S.
      Aven, for plaintiff-appellee, cross-appellant.

      Hedrick Gardner Kincheloe & Garofalo, LLP, by Matthew J. Ledwith and M.
      Duane Jones, for defendant-appellants, cross-appellees.


      ZACHARY, Judge.


      U.S. Xpress, Inc. (defendant, with Liberty Mutual Insurance Company,

collectively, defendants) appeals from an opinion and award of the North Carolina

Industrial Commission that awarded Harrison Hall (plaintiff) workers’ compensation

benefits. Defendants argue that the Commission lacked subject matter jurisdiction
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                                  Opinion of the Court



over plaintiff’s claim for workers’ compensation benefits, and that the Commission

erred by awarding plaintiff benefits for attendant care that was provided prior to the

date upon which plaintiff filed an Industrial Commission Form 18, and by sanctioning

defendants. Plaintiff has filed a cross-appeal in which he argues that the Commission

erred by limiting the award of attendant care to eight hours per day, by failing to

continue a per diem allowance defendants had previously paid to plaintiff and his

wife, and by requiring plaintiff to contribute $400 per month toward the rental of a

handicapped-accessible apartment. We conclude that the Commission’s opinion and

award should be affirmed.

                        Factual and Procedural Background

      The pertinent facts are largely undisputed. Plaintiff was born in 1959 and was

56 years old at the time of the hearing on this matter. In 1999, plaintiff began

working as a long distance truck driver for defendant, a trucking company based in

Tennessee. Plaintiff was living in Fayetteville, North Carolina, at that time. On 5

July 2002, while plaintiff was delivering merchandise in North Carolina, he was

pinned between his delivery truck and another vehicle. Defendants have not disputed

that this was an injury by accident arising from his employment with defendant, or

that “plaintiff sustained injury to his back and right leg during the performance of

his job duties for defendant-employer. . . .” Following the accident that injured

plaintiff, defendants reported the accident to the legal entity that administers the



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Tennessee Workers’ Compensation Act. Since 6 July 2002, defendants have

voluntarily paid workers’ compensation wage loss benefits of $463.30 per week to

plaintiff, pursuant to the Tennessee Workers’ Compensation Act.

       In addition to weekly indemnity payments, defendants have paid workers’

compensation medical benefits of approximately $8,406,832.00 for treatment of the

injuries plaintiff suffered in the accident, pursuant to the Tennessee Workers’

Compensation Act and fee schedule.        Plaintiff was initially treated by medical

providers in North Carolina; he later moved to West Virginia, in order to receive

assistance from his girlfriend, who is now his wife. In 2004, defendants transferred

plaintiff’s medical care from West Virginia to Boston, Massachusetts, where plaintiff

and his wife were residing at the time of the hearing on his claim. Unfortunately,

despite receiving medical care, plaintiff has continued to suffer serious health

problems. As a result of the accident in 2002, plaintiff has had approximately 390

surgical procedures, including amputation of his right leg. Because plaintiff’s leg was

amputated up to his buttock, he is not a candidate for a prosthetic leg. He has also

suffered from kidney failure, which makes him dependent upon dialysis, as well as

other medical problems, including diabetes, elevated cholesterol levels, dental

problems, and depression.

      Between the date of plaintiff’s accident and 2013, defendants provided workers’

compensation medical and indemnity benefits to plaintiff pursuant to the Tennessee



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Workers’ Compensation Act. As part of the agreement between plaintiff and

defendants for the transfer of plaintiff’s medical care to Boston, defendants agreed to

pay plaintiff and his wife each a $25.00 per diem allowance for meals. In 2011,

defendants discontinued payment of the per diem allowance, and plaintiff learned

that his workers’ compensation benefits had been paid under Tennessee’s, rather

than North Carolina’s, workers’ compensation law. On 8 April 2013, plaintiff filed

Industrial Commission Form 18 with the North Carolina Industrial Commission,

seeking workers’ compensation medical and indemnity benefits. Defendants then

filed Industrial Commission Form 19 reporting plaintiff’s accident to the North

Carolina Industrial Commission on 23 April 2013. On 2 May 2013, defendants filed

Industrial Commission Form 61, asserting that the Industrial Commission lacked

jurisdiction over plaintiff’s claim. In response, plaintiff filed Industrial Commission

Form 33 requesting that his claim be heard by the Commission.

      The parties agreed to a bifurcated proceeding, in which a hearing on the issue

of subject matter jurisdiction was conducted prior to a hearing on plaintiff’s

entitlement to workers’ compensation benefits.           Following a videoconference

conducted in February of 2014, Deputy Commissioner Stephen T. Gheen entered an

opinion on 12 January 2015, concluding that the Industrial Commission had

jurisdiction over plaintiff’s claim. Deputy Commissioner Gheen entered a modified

order on 10 February 2015, making minor changes to his original order. On 25



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February 2015, defendants gave notice of their appeal from the Deputy

Commissioner’s order.

      Additional proceedings by the Commission addressed the issue of plaintiff’s

claim for workers’ compensation medical and indemnity benefits. On 29 October

2015, an interlocutory opinion and award was entered by Deputy Commissioner J.

Brad Donovan in which he incorporated the order entered by Deputy Commissioner

Gheen, noting that it was “favorable to the plaintiff on the issue of jurisdiction. . . .”

This order left open the calculation of certain benefits. On 8 January 2016, Deputy

Commissioner Donovan entered an order finalizing the award and otherwise

incorporating his earlier order awarding plaintiff workers’ compensation medical and

indemnity benefits. Plaintiff appealed to the Full Commission for review of aspects of

the award of benefits, and defendants appealed to the Full Commission, challenging

the Commission’s subject matter jurisdiction as well as certain parts of Deputy

Commissioner Donovan’s award.

      The case was heard by the Full Commission on 23 June 2016. On 7 December

2016, the Commission, by means of an order entered by Commissioner Bill

Daughtridge, Jr. with the concurrence of Commissioners Bernadine S. Ballance and

Tammy Nance, awarded plaintiff certain workers’ compensation medical and

indemnity benefits. The specific provisions of the Commission’s order are discussed

below, as pertinent to the issues raised by the parties on appeal. Plaintiff and



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defendants entered timely notices of appeal to this Court from the Commission’s

opinion and award.

                                      Standard of Review

      “Generally, appellate review of the Commission’s decisions is limited to

‘whether any competent evidence supports the Commission’s findings of fact and

whether [those] findings . . . support the Commission’s conclusions of law.’ ” Burley v.

U.S. Foods, Inc., 368 N.C. 315, 317, 776 S.E.2d 832, 834 (2015) (quoting McRae v.

Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004)).         In addition,

“[b]ecause the Industrial Commission is the sole judge of the credibility of the

witnesses and the weight of the evidence[, w]e have repeatedly held that the

Commission’s findings of fact are conclusive on appeal when supported by competent

evidence, even though there be evidence that would support findings to the contrary.”

Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 423, 760 S.E.2d 732, 738 (2014)

(internal quotation omitted).

      “On appeal, this Court may not reweigh the evidence or assess credibility.

Findings of fact may be set aside on appeal only when there is a complete lack of

competent evidence to support them[.]” Kelly v. Duke Univ., 190 N.C. App. 733, 738-

39, 661 S.E.2d 745, 748 (2008) (internal quotation omitted). Findings that are not

challenged on appeal are “presumed to be supported by competent evidence” and are

“conclusively established on appeal.” Johnson v. Herbie’s Place, 157 N.C. App. 168,



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180, 579 S.E.2d 110, 118 (2003) (citation omitted). The “Commission’s conclusions of

law are reviewed de novo.” McRae, 358 N.C. at 496, 597 S.E.2d at 701 (citation

omitted).

      The Industrial Commission’s findings regarding subject matter jurisdiction are

subject to a different standard:

             “The finding of a jurisdictional fact by the Industrial
             Commission is not conclusive upon appeal even though
             there be evidence in the record to support such finding. The
             reviewing court has the right, and the duty, to make its
             own independent findings of such jurisdictional facts from
             its consideration of all the evidence in the record.” . . . This
             Court makes determinations concerning jurisdictional
             facts based on the greater weight of the evidence.

Capps v. Southeastern Cable, 214 N.C. App. 225, 226-27, 715 S.E.2d 227, 229 (2011)

(quoting McCown v. Hines, 353 N.C. 683, 686, 549 S.E.2d 175, 177 (2001)).

                                     Appeal by Defendants

                                   Subject Matter Jurisdiction

      Defendants argue first that the Industrial Commission lacked subject matter

jurisdiction over plaintiff’s claim for workers’ compensation benefits. Defendants

contend that plaintiff’s claim was barred by the provisions of N.C. Gen. Stat. § 97-24

(2016). This statute provides in relevant part that:

             (a) The right to compensation under this Article shall be
             forever barred unless (i) a claim . . . is filed with the
             Commission or the employee is paid compensation as
             provided under this Article within two years after the
             accident or (ii) a claim . . . is filed with the Commission


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             within two years after the last payment of medical
             compensation when no other compensation has been paid
             and when the employer’s liability has not otherwise been
             established under this Article.

      In this case, plaintiff did not file a claim with the North Carolina Industrial

Commission within two years of his accident, and thus jurisdiction is not proper

under N.C. Gen. Stat. § 97-24(a)(i). The jurisdictional dispute between the parties is

whether plaintiff filed a claim “within two years after the last payment of medical

compensation when no other compensation has been paid and when the employer’s

liability has not otherwise been established under this Article,” as specified in § 97-

24(a)(ii). “Under section 97-24(a)(ii), a plaintiff must show that: (1) his claim was

filed within two years after the last payment of ‘medical compensation,’ (2) no ‘other

compensation’ was paid, and (3) the employer’s liability has not otherwise been

established under the Act.” Clark v. Summit Contrs. Group, Inc., 238 N.C. App. 232,

235, 767 S.E.2d 896, 898-99 (2014).

      The facts of Clark are comparable to those of the instant case. In Clark, this

Court held that “the record clearly shows that [the] defendants’ liability had not

otherwise been established under the Act because [the] defendants had not been held

liable for [the] plaintiff’s injuries pursuant to a North Carolina workers’

compensation claim[.] . . . Thus, the third element is satisfied.” Id. The same is true

in this case; when plaintiff filed Industrial Commission Form 18, defendants’ liability

had not been determined pursuant to a North Carolina workers’ compensation claim.


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The Clark opinion explained that “whether [the] plaintiff can satisfy the remaining

two elements of N.C. Gen. Stat. § 97-24(a)(ii) turns on this Court’s understanding of

the terms ‘medical compensation’ and ‘other compensation’ as they are contemplated

within the North Carolina Workers’ Compensation Act.” Clark, 238 N.C. App. at 235,

767 S.E.2d at 899.

      N.C. Gen. Stat. § 97-2 (2016) sets out the legal definition of various terms

“[w]hen used in this Article, unless the context otherwise requires[.]” These

definitions include, as relevant to this appeal, the following:

             (11) Compensation. -- The term “compensation” means the
             money allowance payable to an employee or to his
             dependents as provided for in this Article, and includes
             funeral benefits provided herein.

             (19) Medical Compensation. -- The term “medical
             compensation” means medical, surgical, hospital, nursing,
             and rehabilitative services, including, but not limited to,
             attendant care services prescribed by a health care
             provider authorized by the employer or subsequently by
             the Commission, vocational rehabilitation, 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[.] . . .

             (20) Health care provider. -- The term “health care
             provider”    means     physician,    hospital,    pharmacy,
             chiropractor, nurse, dentist, podiatrist, physical therapist,
             rehabilitation specialist, psychologist, and any other
             person providing medical care pursuant to this Article.




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      Two previous North Carolina cases have interpreted these definitions in a

factual context that is functionally indistinguishable from the present case: that of a

workers’ compensation claimant who (1) suffers a compensable injury; (2) receives

medical and indemnity compensation that is voluntarily provided by the employer,

pursuant to the workers’ compensation statutes of a state other than North Carolina;

and (3) files a claim within two years of the last medical compensation provided under

the other state’s workers’ compensation act. McGhee v. Bank of America Corp., 173

N.C. App. 422, 618 S.E.2d 833 (2005), addressed the question of whether, for purposes

of determining whether a plaintiff filed a claim within two years of the last payment

of medical compensation, payments to out-of-state medical providers should be

considered. In McGhee, the plaintiff filed a claim for workers’ compensation benefits

in North Carolina within two years of her last medical compensation payment to her

Virginia health care providers. This Court upheld the Commission’s finding that the

“plaintiff had timely filed a claim within two years after the last payment of medical

compensation pursuant to N.C. Gen. Stat. § 97-24(a)(ii) because the employer paid

medical providers in Virginia” within two years of the date that the plaintiff filed her

claim. Clark, 238 N.C. App. at 236, 767 S.E.2d at 899 (discussing McGhee, 173 N.C.

App. at 427, 618 S.E.2d at 836).

      In Clark, the claimant filed a claim within two years of last receiving medical

compensation in Florida. As in McGhee, the defendant argued that, for purposes of



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determining whether a plaintiff filed a workers’ compensation claim within two years

of the last payment of medical compensation, payments from a state other than North

Carolina should not be considered. This Court expressly rejected that argument:

             While it is clear that, pursuant to [the] plaintiff’s Florida
             workers’ compensation claim, [the] defendants made
             payments for his medical treatment in Florida, the issue is
             whether       those    payments       constituted   “medical
             compensation” under the Act. . . . [The] defendants contend
             that “[n]one of [the] plaintiff’s medical payments were
             made ‘in the judgment of’ the North Carolina Industrial
             Commission or in a matter before the North Carolina
             Industrial Commission.” Thus, according to [the]
             defendants, [the] plaintiff did not receive any payments of
             “medical compensation” and subsection (ii) is inapplicable.
             . . . There is no basis for [the] defendants’ contention that
             “medical compensation” only includes payments made in a
             matter pending before the North Carolina Industrial
             Commission. In contrast, our caselaw establishes that an
             employee’s claim is timely filed under section 97-24(a)(ii) if
             it is filed within two years after the defendant’s last
             payment of “medical compensation” to the plaintiff
             regardless of where the medical treatment occurs and
             regardless of whether that payment was ordered as a result
             of a pending workers’ compensation action in North
             Carolina.

Clark at 235-36, 767 S.E.2d at 899 (emphasis added) (citing McGhee, 173 N.C. App.

at 426-27, 618 S.E.2d at 836). McGhee and Clark have also rejected the instant

defendants’ argument that disability payments that are not provided pursuant to

North Carolina workers’ compensation are “other compensation” within the meaning

of N.C. Gen. Stat. § 97-24(a)(ii). As stated in Clark:




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              The next issue is whether the benefits [the] plaintiff
              received     under    Florida     law    constitute   “other
              compensation” for purposes of section 97-24(a)(ii). If they
              do, [the] plaintiff would be unable to satisfy the second
              element under section 97-24(a)(ii).
              “ ‘Compensation’ under the Workers’ Compensation Act
              means ‘the money allowance payable to an employee or to
              his dependents as provided for in this Article[.]’ ”. . . In
              McGhee, this Court interpreted the term “other
              compensation” and determined that any benefits “paid . . .
              in lieu of workers’ compensation benefits and not made
              payable . . . pursuant to [North Carolina’s] Workers’
              Compensation Act” did not qualify as “other
              compensation,” and we are bound by that definition[.] In
              McGhee, 173 N.C. App. at 427, 618 S.E.2d at 836, the
              plaintiff received short-term disability benefits from the
              employer. On appeal, the defendants argued that the short-
              term disability benefits constituted “other compensation,”
              making section 97-24(a)(ii) inapplicable. Id. However, this
              Court disagreed, concluding that because the short-term
              disability benefits were “paid to [the] plaintiff in lieu of
              workers’ compensation benefits and not made payable to
              [the] plaintiff pursuant to the Workers’ Compensation
              Act[,]” they did not qualify as “other compensation” under
              section 97-24(a)(ii). Based on McGhee, since the workers’
              compensation benefits [the] plaintiff received in Florida
              were also “not made payable to [him] pursuant to [North
              Carolina’s] Workers’ Compensation Act,” id., they do not
              qualify as “compensation,” as defined in section 97-2(11)
              (2013), or “other compensation,” as defined in McGhee, for
              purposes of N.C. Gen. Stat. § 97-24(a)(ii).

Clark at 237-238, 767 S.E.2d at 900 (emphasis in original) (quoting McGhee at 427,

618 S.E.2d at 836-37, and citing In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30,

37 (1989)).




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      In sum, McGhee and Clark establish that (1) medical compensation provided

to a health care provider outside of North Carolina or pursuant to the workers’

compensation laws of another state may be considered in determining whether a

plaintiff has filed a workers’ compensation claim in North Carolina within two years

of the last medical compensation, but that (2) for purposes of determining a plaintiff’s

compliance with N.C. Gen. Stat. § 97-24(a)(ii), disability or other indemnity payments

are not considered “other compensation” within the meaning of the statute unless the

payments were made pursuant to a North Carolina workers’ compensation claim.

      In the present case, plaintiff filed Industrial Commission Form 18 seeking

workers’ compensation benefits within two years of the last payment of medical

compensation. The fact that the payments were made to health care providers in

Boston, pursuant to the Tennessee workers’ compensation statute and fee schedule,

does not invalidate them for purposes of determining whether plaintiff’s claim was

timely filed. In addition, plaintiff’s entitlement to disability payments under the

North Carolina Workers’ Compensation Act had not been previously determined at

the time that plaintiff filed a workers’ compensation claim. We conclude that plaintiff

met the criteria specified in N.C. Gen. Stat. § 97-24(a)(ii), and that the Industrial

Commission had jurisdiction over plaintiff’s claim.

      In reaching this conclusion, we have considered, but have ultimately rejected,

defendants’ arguments for a contrary result. Preliminarily, we note that the parties



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have directed our attention to the circumstances of defendants’ payments to plaintiff,

as pertinent to whether plaintiff was informed that the medical compensation and

disability payments were made pursuant to Tennessee law. Plaintiff characterizes

the payments made by defendants as having been made “unilaterally and secretly,”

while defendants note that plaintiff failed to make inquiries or to pursue the question

of whether Tennessee or North Carolina law was the basis of the payments. However,

N.C. Gen. Stat. § 97-24(a)(ii) does not include a requirement either that an employer

keep a claimant informed of the legal status of disability or medical compensation

payments or, alternatively, that a plaintiff investigate this matter. Accordingly, we

do not consider the parties’ arguments on this issue. Similarly, our conclusion that

the Industrial Commission had subject matter jurisdiction has been reached without

consideration of plaintiff’s estoppel arguments.

      Defendants further argue that the payments made to plaintiff’s health care

providers in Boston do not constitute medical compensation within the meaning of

N.C. Gen. Stat. § 97-24(a)(ii). Defendants state that:

             N.C. Gen. Stat. § 97-24 only refers to compensation and
             medical compensation defined by N.C. Gen. Stat. § 97-2
             and paid pursuant to N.C. Gen. Stat. § 97-18 and N.C. Gen.
             Stat. § 97-25. N.C. Gen. Stat. § 97-24 does not refer to
             medical compensation paid pursuant to a statutory
             structure of another state.

      Contrary to defendants’ contention, there is no reference in N.C. Gen. Stat. §

97-24 to § 97-2, § 97-18, or § 97-25. While it is true that N.C. Gen. Stat. § 97-24 “does


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not refer to compensation paid pursuant to a statutory structure of another state,”

defendant ignores the fact that McGhee and Clark have explicitly held that such

payments are “medical compensation.” We conclude that this argument lacks merit.

      Defendants next argue that the Commission’s “interpretation” of N.C. Gen.

Stat. § 97-24 is “inconsistent with the rules of statutory construction.” However, the

Commission was not charged with developing an “interpretation” of N.C. Gen. Stat.

§ 97-24 on a blank slate; rather, the Commission properly applied the holdings of

McGhee and Clark to the facts of this case.

      Defendants also contend that the Commission failed to employ the statutory

definitions of the terms “medical compensation” and “health care provider.” The basis

of defendants’ argument on this issue is a 2011 amendment to § 97-2(19). Previously,

the statute defined medical compensation in relevant part 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 [.]” Effective 23 June 2011 and applying to claims arising

after that date, the definition was changed to “medical, surgical, hospital, nursing,

and rehabilitative services, including, but not limited to, attendant care services

prescribed by a health care provider authorized by the employer or subsequently by

the Commission, vocational rehabilitation, and medicines, sick travel, and other

treatment, including medical and surgical supplies, as may reasonably be required to



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effect a cure or give relief,” with the addition of the underlined phrase “including, but

not limited to, attendant care services prescribed by a health care provider authorized

by the employer or subsequently by the Commission[.]”

         The basis of defendants’ argument is not entirely clear. However, it appears

that defendants contend that the proper way to interpret § 97-2(19) is to apply the

phrase “prescribed by a health care provider” to all the listed types of medical

compensation. Defendants contend that, because “health care provider” is defined as

including only medical care performed pursuant to the North Carolina Workers’

Compensation Act, “only those payments made to clinicians providing medical

services pursuant to the North Carolina Workers’ Compensation Act constitute

‘medical compensation.’ ” We do not agree. First, the structure of the phrasing in the

definition does not support defendants’ position.          Secondly, the phrase at issue

specifies that medical compensation is defined as “including, but not limited to” the

attendant care that is described. Moreover, the injury upon which plaintiff’s claim is

based occurred in 2002, well before the 2011 amendment to the text of N.C. Gen. Stat.

§ 97-2(19). As a result, the earlier version of the statute governs our analysis of this

issue.

         Finally, defendants fail to consider the precedential effect of our opinion in

Clark which, citing McGhee, held that medical compensation paid pursuant to the

workers’ compensation laws of a state other than North Carolina could be considered



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for purposes of determining a claimant’s compliance with N.C. Gen. Stat. § 97-

24(a)(ii). Defendants first contend that McGhee is distinguishable from the present

case because in McGhee the “defendants stipulated that [their] medical payments

constituted ‘medical compensation.’ ” We are at a loss to understand the basis of this

erroneous assertion, given that in McGhee the “Defendants argue[d] that [the]

plaintiff neither filed her claim within two years of the accident, nor within two years

after the last payment of medical compensation by [the] defendants” and that “the

payment at issue, $ 72,554.38 paid to medical providers in Virginia, does not meet

the statutory definition of ‘medical compensation’ under section 97-2(19) of the North

Carolina General Statutes[.]” McGhee at 425-26, 618 S.E.2d at 836. We conclude

that defendants have misstated the facts of McGhee and that the defendants in that

case did not stipulate that the medical compensation at issue met the statutory

definition.

      In their Reply Brief, defendants acknowledge our holding in Clark, and

essentially argue that Clark was wrongly decided. We do not agree with defendants

on this point. Moreover, regardless of the merits of our decision in Clark, it is long-

established that “[w]here a panel of the Court of Appeals has decided the same issue,

albeit in a different case, a subsequent panel of the same court is bound by that

precedent, unless it has been overturned by a higher court.” In re Civil Penalty at




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384, 379 S.E.2d at 37.     For the reasons discussed herein, we conclude that the

Industrial Commission had jurisdiction over plaintiff’s claim.

                                  Award of Attendant Care

      In this case, plaintiff’s wife provided attendant care services for plaintiff

beginning in 2006, when plaintiff underwent his first leg amputation surgery. When

plaintiff filed Industrial Commission Form 18 seeking workers’ compensation

benefits, he requested retroactive and prospective compensation for the cost of the

attendant care provided by his wife. Defendants do not dispute that a workers’

compensation claimant may receive reimbursement for the cost of attendant care

provided prior to the date when he filed a claim for North Carolina workers’

compensation benefits.    However, in order “to receive compensation for medical

services, an injured worker is required to obtain approval from the Commission

within a reasonable time after he selects a medical provider. If [the] plaintiff did not

seek approval within a reasonable time, he is not entitled to reimbursement.”

Mehaffey v. Burger King, 367 N.C. 120, 128, 749 S.E.2d 252, 257 (2013) (citing

Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 593, 264 S.E.2d 56, 63 (1980)).

Defendants argue that the Commission erred by awarding plaintiff compensation for

the cost of attendant care provided by his wife prior to the date on which he filed

Industrial Commission Form 18, on the grounds that plaintiff failed to seek approval




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for attendant care within a reasonable time after he selected his wife to provide this

service. We disagree.

      The crux of defendants’ argument is that, in determining whether plaintiff

sought approval from the Commission to receive attendant care within a reasonable

time, our starting point should be the date of plaintiff’s injury or, at the latest, the

year 2006 when plaintiff’s wife began providing full-time attendant care. We have

concluded above that plaintiff properly filed a claim for workers’ compensation

benefits within two years of the last payment for medical compensation. Prior to his

filing a claim, there was no basis upon which the North Carolina Industrial

Commission might have exercised jurisdiction over plaintiff’s entitlement to workers’

compensation benefits, including the approval of payment for attendant care services.

As discussed above, we are resolving the issues raised in this appeal without formal

consideration of the doctrine of estoppel. Nonetheless, we observe that between 2002

and 2011 plaintiff had no reason to file a claim with the North Carolina Industrial

Commission. The Commission found that plaintiff made his request for attendant

care “within a reasonable time of having selected his wife to provide those services

and requested approval from the Industrial Commission of his wife as his attendant

care provider within a reasonable time of having filed his North Carolina claim.” We

hold that this finding is supported by the evidence, and that it supports the

Commission’s conclusion that:



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             20. . . . Immediately upon filing his claim for workers’
             compensation benefits in North Carolina in 2013, plaintiff
             did request approval from the North Carolina Industrial
             Commission of attendant care services payable to his wife,
             Mrs. Hall. The Commission, therefore, concludes that
             plaintiff’s request for retroactive reimbursement of
             attendant care to his wife was made within a reasonable
             time.

      We conclude that the Commission did not err by awarding plaintiff retroactive

workers’ compensation benefits for the cost of his attendant care, and that defendants

are not entitled to relief on the basis of this argument.

                                           Sanctions

      Defendants’ final argument is that the Industrial Commission erred by

imposing a sanction against them for unfounded litigiousness. In its award, the

Commission stated that:

             As sanctions for defendants’ unfounded litigiousness of the
             jurisdictional issue and denying the compensability of
             plaintiff’s various medical conditions that Dr. Pribaz
             correlated to plaintiff’s original compensable right leg
             injury, without presenting expert medical evidence to the
             contrary, defendants shall be responsible for paying to
             plaintiff’s counsel the lump sum of [$5,000.00]. . . .

      N.C. Gen. Stat. § 97-88.1 (2016) provides that if “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




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                                  Opinion of the Court



has brought or defended them.” Our review of the Commission’s decision to impose a

sanction is a two-step process:

             First, whether the defendant had a reasonable ground to
             bring a hearing is reviewable by this Court de novo. If this
             Court concludes that a party did not have reasonable
             ground to bring or defend a hearing, then we review the
             decision of whether to make an award and the amount of
             the award for an abuse of discretion. In conducting the first
             step of the analysis, the reviewing court should consider
             the evidence presented at the hearing to determine [the]
             reasonableness of a defendant’s claim. As such, the burden
             is on the defendant to place in the record evidence to
             support its position that it acted on reasonable grounds.

Blalock v. Southeastern Material, 209 N.C. App. 228, 231-32, 703 S.E.2d 896, 899

(2011) (internal citations and quotation marks omitted).

      On appeal, defendants make a conclusory assertion that “[b]ased upon the

statutory argument above, the arguments distinguishing this matter from McGhee,

and the facts of this matter, Defendants did not engage in unfounded and stubborn

litigiousness.” Defendants have not directed our attention to any legal or factual

basis for their denial of the compensability of the medical conditions to which the

Commission referred in its award. In regard to defendants’ denial of the

Commission’s jurisdiction, we conclude that the issue of jurisdiction was previously

resolved in opinions issued by this Court that are, in all material respects,

indistinguishable from the present case and that therefore constitute binding

precedent.   We conclude that the Commission did not err by concluding that



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                                    Opinion of the Court



defendants had engaged in unfounded litigiousness and did not abuse its discretion

in its award of attorney’s fees to plaintiff’s counsel.

                                      Appeal by Plaintiff

                                        Attendant Care

       Plaintiff first argues that the Commission erred by limiting its award of the

cost of attendant care to eight hours per day. Plaintiff offered expert medical

testimony that he was in need of eight to twelve hours of attendant care per day,

seven days per week. It is plaintiff’s contention that the Commission must view the

evidence in the light most favorable to the claimant, and that this requirement strips

the Commission of the authority to exercise its discretion to choose the appropriate

award when presented with a range of possible awards. We do not agree.

       Plaintiff directs our attention to the statement in Adams v. AVX Corp., 349

N.C. 676, 681, 509 S.E.2d 411, 414 (1998), that “[t]he evidence tending to support

[the] plaintiff’s claim is to be viewed in the light most favorable to [the] plaintiff, and

[the] plaintiff is entitled to the benefit of every reasonable inference to be drawn from

the evidence.” However, the issue in Adams was whether the plaintiff was entitled to

any workers’ compensation benefits. The opinion did not address the Commission’s

discretion to choose an appropriate award based upon its consideration of the

evidence. Plaintiff contends that, in a situation such as the present case in which the

sole medical expert testifies to a high to low range of the number of hours of medical



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                                  Opinion of the Court



services as being medically necessary, if the Commission has the discretion to select

any number of hours within that range, this would “render[] the Adams mandate

meaningless.” In essence, plaintiff is asking us to reweigh the evidence, which we will

not do:

             Because it is the fact-finding body, the Commission is the
             sole judge of the credibility of the witnesses and the weight
             to be given their testimony. The Commission’s findings of
             fact are conclusive on appeal if they are supported by any
             competent evidence. Accordingly, this Court does not have
             the right to weigh the evidence and decide the issue on the
             basis of its weight.

Shaw v. US Airways, Inc., 217 N.C. App. 539, 541-42, 720 S.E.2d 688, 690 (2011)

(internal quotation omitted).   We conclude that the Commission did not err by

awarding plaintiff eight hours per day of attendant care.

                                    Per Diem Allowance

      Plaintiff argues next that the Commission erred by failing to require

defendants to continue payment of a per diem allowance of $50.00 per day for meals

that defendants had previously paid to plaintiff between 2004 and 2011. The sole

basis of plaintiff’s argument on this issue is that defendants should be estopped from

discontinuing these payments. We conclude that plaintiff is not entitled to relief on

the basis of this argument.




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                                 Opinion of the Court



      The parties agree that the per diem allowance was for meals. Plaintiff’s only

argument is that defendants should be estopped from discontinuing the per diem

payments.

            [T]he essential elements of an equitable estoppel as related
            to the party estopped are: (1) Conduct which amounts to a
            false representation or concealment of material facts, or at
            least, which is reasonably calculated to convey the
            impression that the facts are otherwise than, and
            inconsistent with, those which the party afterwards
            attempts to assert; (2) intention or expectation that such
            conduct shall be acted upon by the other party, or conduct
            which at least is calculated to induce a reasonably prudent
            person to believe such conduct was intended or expected to
            be relied and acted upon; (3) knowledge, actual or
            constructive, of the real facts. As related to the party
            claiming the estoppel, they are: (1) lack of knowledge and
            the means of knowledge of the truth as to the facts in
            question; (2) reliance upon the conduct of the party sought
            to be estopped; and (3) action based thereon of such a
            character as to change his position prejudicially.

Gore v. Myrtle/Mueller, 362 N.C. 27, 33-34, 653 S.E.2d 400, 405 (2007) (quoting

Hawkins v. M & J Fin. Corp., 238 N.C. 174, 177-178, 77 S.E.2d 669, 672 (1953)).

      Defendants paid the per diem meal allowance for seven years. Plaintiff has not

established that he relied upon a misrepresentation that these payments would

continue indefinitely. In addition, the Commission found that the per diem payments

did not constitute medical compensation. We conclude that plaintiff has failed to

establish that he produced evidence of the elements of equitable estoppel and that




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the Commission did not err by ruling that defendants were entitled to cease payment

of the per diem allowance.

                                            Housing Allowance

       Plaintiff’s final argument is that the Commission erred by requiring him to

contribute $400 per month toward the cost of renting his apartment.                          Plaintiff

contends that the Commission improperly allowed defendants a “credit” against their

obligation to pay the entire cost of plaintiff’s housing. Upon review of the facts of this

case, in the context of the relevant jurisprudence, we conclude that plaintiff is not

entitled to relief on the basis of this argument.

       A leading case on the issue of an employer’s responsibility to provide

handicapped accessible housing for a workers’ compensation claimant is Derebery v.

Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986).1 In Derebery:

               The parties agree[d that] the applicable statutory
               provisions are contained in the following part of N.C.G.S. §
               97-29: “In cases of total and permanent disability,
               compensation, including reasonable and necessary nursing
               services, medicines, sick travel, medical, hospital, and
               other treatment or care of [sic] rehabilitative services shall
               be paid for by the employer during the lifetime of the
               injured employee.”2

       1  Derebery addressed an employer’s obligation to a claimant who was permanently and totally
disabled. In this case, the Commission has awarded plaintiff temporary total disability benefits, but
the issue of whether defendant is permanently and totally disabled has not been resolved. This
distinction does not affect the outcome of plaintiff’s appeal.
        2 Effective 23 June 2011 and applying to cases arising after that date, the lifetime entitlement

to medical compensation was replaced by a requirement that the issue of a claimant’s total disability
be revisited approximately every ten years. Because the present case arose before 2011, if plaintiff is
determined to be permanently and totally disabled, he will be entitled to lifetime medical
compensation.

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Id. at 199, 347 S.E.2d at 818. After reviewing this statute and cases from other

jurisdictions, our Supreme Court “conclude[d] on the basis of the legislative history

surrounding N.C. Gen. Stat. § 97-29, this Court’s prior interpretation of that statute

and the persuasive authority of other courts interpreting similar statutes that the

employer’s obligation to furnish ‘other treatment or care’ may include the duty to

furnish alternate, wheelchair accessible housing.” Id. at 203-04, 347 S.E.2d at 821

(emphasis added).

      In Timmons v. North Carolina DOT, 123 N.C. App. 456, 460, 473 S.E.2d 356,

358 (1996), aff’d per curiam, 346 N.C. 173, 484 S.E.2d 551 (1997), another case in

which the claimant was permanently and totally disabled, the plaintiff was building

a house. The Commission held that the defendant should pay the additional cost of

rendering the house handicapped accessible, but was not responsible for the entire

cost of the construction:

             At the time of [the] plaintiff’s injury in 1980, G.S. § 97-25
             required, in relevant part: “medical, surgical, hospital,
             nursing services, medicines, . . . rehabilitation services, and
             other treatment including medical and surgical supplies as
             may reasonably be required to . . . give relief . . . shall be
             provided by the employer.” . . . In Derebery v. Pitt County
             Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986), the
             North Carolina Supreme Court held that an employer’s
             duty to provide “other treatment or care” as contained in
             G.S. § 97-29, was sufficiently broad as to include the duty
             to provide handicapped accessible housing. . . . In our view,
             the words “and other treatment” contained in G.S. § 97-25
             are susceptible of the same broad construction accorded the


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             similar language of G.S. § 97-29 by the Supreme Court in
             Derebery, and we reject [the] defendant’s argument to the
             contrary.

             We do not agree with [the] plaintiff, however, that Derebery
             requires [the] defendant to pay the entire cost of
             constructing his residence. . . . [T]he expense of housing is
             an ordinary necessity of life, to be paid from the statutory
             substitute for wages provided by the Workers’
             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, while the basic cost of acquisition or
             construction of the housing is not.

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

      In Burnham v. McGee Bros. Co., 221 N.C. App. 341, 727 S.E.2d 724 (2012), the

plaintiff, who was permanently and totally disabled, rented a two-bedroom

handicapped accessible apartment and asked defendants to pay the additional cost

for the second bedroom that he required for storage of equipment related to his

disability. “Plaintiff specified that he sought compensation for ‘the additional cost of

housing due to [his] injury.’ In response, [the] defendants asserted that they had no

obligation to contribute to [the] Plaintiff’s ongoing rental expenses because applicable

‘case law establishes that rent is an ordinary expense of life.’ ” Id. at 344, 727 S.E.2d

at 726. The Commission ordered the defendants to pay the additional rent for the

second bedroom. On appeal, the plaintiff argued that the defendants had no valid


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                                    Opinion of the Court



basis upon which to challenge their obligation to pay the additional part of the

plaintiff’s rent. This Court disagreed, noting that only a few cases had addressed

such issues:

                . . . [The] Plaintiff argues that [the] Defendants had no
               valid legal basis for resisting his request for assistance
               with his rental expenses given that an employer’s
               “responsibility to pay for proper accommodative housing
               has been part of North Carolina law for many years.”
               However, our review of the pertinent decisions in this area
               indicates that the exact point at issue in this case has not
               been specifically addressed.

Id. at 347, 727 S.E.2d at 728. Burnham then summarized the two earlier opinions,

noting that “both Derebery and Timmons draw a distinction between the ordinary

expenses of life and the extraordinary expenses associated with modifying or

constructing housing for the purpose of rendering it handicapped-accessible” but that

“neither decision addresses an employer’s obligation to pay ongoing rental expenses

that are attributable to a plaintiff’s disability such as the cost of an additional

bedroom used to store the equipment, supplies, and mobility-related devices needed

to accommodate [the] Plaintiff’s paraplegia.” Id. at 348-49, 727 S.E.2d at 729. This

Court concluded that, given “the paucity of published cases addressing the extent to

which an employer or insurance carrier is liable for the additional costs associated

with housing for handicapped individuals and the complete absence of any decision

addressing the extent to which employers and their carriers are liable for ongoing

increased rental payments stemming from needs like those present here,” the


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                                  Opinion of the Court



Commission did not err by determining that the defendants did not act unreasonably

in defending against the plaintiff’s claim for rental payments. Id. at 349, 727 S.E.2d

at 729-30.

      In 2013, this Court decided Espinosa v. Tradesource, Inc., 231 N.C. App. 174,

752 S.E.2d 153 (2013), which reviewed an opinion of the Industrial Commission in

which the defendants were ordered to pay, inter alia, the pro rata difference between

the permanently and totally disabled plaintiff’s pre-injury rent and his post-injury

rent. Both parties appealed, with the defendants arguing that it was error to require

them to pay anything beyond the cost of rendering the apartment handicapped

accessible, and the plaintiff arguing that the Commission erred by reducing his award

by the amount he paid for rent before the injury. This Court upheld the Commission:

             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 97-25 makes it
             clear, however, that an award of “other treatment” is in the
             discretion of the Commission. . . . Section 97-2(19), as
             written at the time of [the] Plaintiff’s injury, further
             explained that the type of medical compensation the
             employer must pay is “in the judgment of the
             Commission[.]” . . . 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.

             In this case, the Commission 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


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                                  Opinion of the Court



             an ordinary expense of life before his injury. 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 [the] Plaintiff
             did not own his own home in this case, he was required to
             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 [the] 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 186, 752 S.E.2d at 160-61 (emphasis in original).

      We conclude that Espinosa is functionally indistinguishable from the present

case and that our jurisprudence clearly establishes both that (1) an employer may be

required to pay for the expense of providing handicapped housing for a disabled

claimant, and that (2) the Commission has the discretion to require the claimant to

contribute a reasonable amount toward rent, such as the amount of his pre-injury

rent. We conclude that the Commission did not err by requiring plaintiff to contribute

to the cost of renting a handicapped-accessible apartment.

                                     Conclusion




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                                Opinion of the Court



      Thus, for the reasons discussed above, we conclude that the Industrial

Commission did not err and that its opinion and award should be affirmed.

      AFFIRMED.

      Judges DAVIS and MURPHY concur.




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