Espinosa v. Tradesource, Inc.

• Decision Date: 03 December 2013
• Docket Number: Nos. COA13–220,COA13–466.,s. COA13–220
• Parties: Jorge A. ESPINOSA, Employee, Plaintiff, v. TRADESOURCE, INC., Employer, Arch Insurance Company, Carrier, and (Gallagher Bassett Services, Inc., Third–Party Administrator), Defendants.
• Court: North Carolina Court of Appeals

752 S.E.2d 153

Jorge A. ESPINOSA, Employee, Plaintiff,

v. TRADESOURCE, INC., Employer,Arch Insurance Company, Carrier,and(Gallagher Bassett Services, Inc., Third–Party Administrator), Defendants. ¹

Nos. COA13–220, COA13–466.

Court of Appeals of North Carolina.

Dec. 3, 2013.

Appeal by Plaintiff, Defendants, and Paradigm from opinion and award entered 6 November 2012 by the North Carolina Industrial Commission. Appeal by Paradigm from orders entered 28 November 2012 and 4 January 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 14 and 28 August 2013.

R. James Lore, Raleigh, for Plaintiff.

Hedrick Gardner Kincheloe & Garofalo, LLP, Charlotte by Martha W. Surles, M. Duane Jones, and Rochelle N. Bellamy, for Defendants.

Womble Carlyle Sandridge & Rice, Winston–Salem, by Philip J. Mohr and Jennifer B. Lyday, for Paradigm Management Services, LLC.

STEPHENS, Judge.

Introduction

COA 13–220 and COA 13–466 ² involve issues surrounding the workers' compensation benefits provided to Jorge Espinosa (“Plaintiff”) after he was shot while employed as a construction crew supervisor for Tradesource, Inc. (“Tradesource”). As a result of Plaintiff's admittedly compensable injury, he is a high-level paraplegic. Additional facts necessary to the discussion of the issues raised by this appeal are provided below.

A. Procedural History

Plaintiff was injured on 13 August 2010. Tradesource and its insurer, Arch Insurance Company (“Arch”),³ (collectively, “Defendants”) admitted compensability for Plaintiff's injury on 18 January 2011 by way of an Industrial Commission Form 60. Defendants later contracted with Paradigm to manage Plaintiff's medical care.⁴

On 28 January 2011, Plaintiff filed a request for hearing and motion for emergency relief. In anticipation of that hearing, scheduled for 21 March 2011, Plaintiff listed the following issue in his pre-trial agreement with Defendants: “Should Paradigm ... be removed from the case for conflict of interest and violation of the [North Carolina] Vocational Rehabilitation Guidelines?” Counsel for Paradigm was not included in the pre-trial agreement.

A full evidentiary hearing was held on 21 March 2011.⁵ Following the hearing, Plaintiff filed a written motion to remove Paradigm from the case. The motion was not served on either Paradigm or counsel for Paradigm, and the record does not reflect that Paradigm or counsel for Paradigm was otherwise notified of the motion. The deputy commissioner who heard the case filed an opinion and award one year later, on 12 March 2012, and, inter alia, denied Plaintiff's motion to remove Paradigm. From there, Plaintiff and Defendants appealed to the full North Carolina Industrial Commission (“the Commission”). Paradigm was not given notice of the parties' appeal and did not appear before the Commission.

The Commission filed its opinion on 6 November 2012, awarding permanent and total disability compensation to Plaintiff at a rate of $764.81 per week from the date of his injury to the end of his life, with a credit for compensation already paid. The Commission also awarded medical compensation for all injury-related conditions and retroactive payments to Plaintiff's father and sister at a rate of $14 per hour for eight hours per day, seven days per week, as compensation for the attendant care they provided from 4 February 2011 to 1 August 2011, subject to a credit for the attendant care provided by Defendants during that time. In addition, Defendants were ordered to pay for (1) ongoing attendant care services for eight hours per day, seven days per week; (2) the pro rata difference between Plaintiff's pre-injury rent and his post-injury rent; and (3) private transportation services at an average of two hours per day, seven days per week, for medical services and treatment, all “until further [o]rder of the ... Commission.” Further, Defendants were ordered to pay the costs for preparing Plaintiff's life care plan and to provide a medical case manager. Both parties' requests for attorneys' fees under N.C. Gen.Stat. § 97–88.1 were denied. Plaintiff's counsel was awarded 25% of the compensation due as attorneys' fees, and Defendantswere ordered to pay costs. Both parties appealed.

Regarding Paradigm, the Commission denied Plaintiff's motion to remove it from the case and “ordered that this matter be referred to the North Carolina Department of Insurance [ (“the DOI”) ] to investigate whether Paradigm ... [is] properly operating under North Carolina law....” Paradigm alleges on appeal that it was not served with a copy of the Commission's 6 November 2012 opinion and award.

Plaintiff filed his notice of appeal from the Commission's 6 November 2012 opinion and award on 14 November 2012, and Defendants filed their notice of appeal on 7 December 2012. On 15 November 2012, one day after Plaintiff's notice of appeal was received by the Commission, Paradigm filed a motion to intervene, to present additional evidence, and for reconsideration. Plaintiff filed a motion to dismiss Paradigm's motions the next day. The Commission dismissed Paradigm's motions on 28 November 2012, stating as grounds that Plaintiff had already filed his notice of appeal to this Court and the Commission lacked jurisdiction to review the motions. On 5 December 2012, Paradigm sent an e-mail to the Commission again requesting reconsideration and asking “what actions [the Commission] would have taken on [Plaintiff's motion to dismiss] if the notice of appeal had not been filed [by Plaintiff].” On 4 January 2013, the Commission denied Paradigm's second motion for reconsideration and its request for an advisory opinion. On 17 January 2013, Paradigm filed notice of appeal from the Commission's 6 November 2012 opinion and award, as well as its 28 November 2012 and 4 January 2013 orders.

Shortly thereafter, on 22 January 2013, Plaintiff filed a motion to dismiss Paradigm's appeal, and the Commission denied that motion. Just over three months later, on 2 May 2013, Plaintiff filed a separate motion to dismiss Paradigm's appeal in this Court. That same day Paradigm filed a motion to intervene in COA 13–220 and/or to consolidate COA 13–220 and 13–466. Plaintiff filed a response to that motion on 7 May 2013, and this Court denied Paradigm's motion by order entered 8 May 2013. On 16 May 2013, Paradigm filed a response to Plaintiff's motion to dismiss its appeal. In the alternative, Plaintiff submitted a conditional petition for writ of certiorari. Plaintiff filed a response to Paradigm's conditional petition on 17 May 2013.

B. Plaintiff's Motion to Dismiss

In his motion to dismiss, Plaintiff argues that Paradigm's 17 January 2013 notice of appeal was “filed about 20 days too late.” This argument is based on Plaintiff's assertion that Paradigm's motion for reconsideration “must necessarily be founded upon Rule 60(b)” of the North Carolina Rules of Civil Procedure. We disagree.

Plaintiff's argument is based on the following correctly stated rules: (1) An appeal from an opinion and award of the Commission must be given within thirty days of the date of such award or thirty days of receipt of notice of such award. N.C. Gen.Stat. § 97–86 (2011).(2) The procedure for such an appeal is as provided by the Rules of Appellate Procedure. Id. (3) When a party moves for reconsideration under Rule 60(b), the time for filing notice of appeal is not tolled. SeeN.C.R.App. P. 3(c); Wallis v. Cambron, 194 N.C.App. 190, 193, 670 S.E.2d 239, 241 (2008). Because the Commission may consider a motion for reconsideration in the same manner as provided under Rule 60(b), Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477 (1985), Plaintiff assumes that Paradigm's motion was filed pursuant to Rule 60(b) and, therefore, insufficient to toll the thirty-day time period for filing notice of appeal. This is incorrect.

Noting that “[t]he Rules of Civil Procedure are not strictly applicable to proceedings under the Workers' Compensation Act” (“the Act”), our Supreme Court has stated that, while the Commission's power to set aside judgments on a motion for reconsideration “is analogous” to the power granted trial courts under Rule 60(b)(6), it arises from a different source—“the judicial power conferred on the Commission by the legislature ...,” not the North Carolina Rules of Civil Procedure. Id. at 137, 337 S.E.2d at 483 (“[W]e find no counterpart to Rule 60(b)(6) in the Act or the Rules of the Industrial Commission.”). Accordingly, Paradigm's motion for reconsideration and the Commission's denial of that motion did not arise under the authority of Rule 60(b), and our cases interpreting Rule 60(b) are not directly applicable. Therefore, in order to determine whether Paradigm's notice of appeal was timely, we must look to the Commission's own rules and the cases interpreting those rules. See id.; see alsoN.C. Const. art. IV, § 3 (“The General Assembly may vest in administrative agencies established pursuant to law such judicial powers as may be reasonably necessary as an incident to the accomplishment of the purposes for which the agencies were created.”).

Industrial Commission Rule 702 states:

(a) Except as otherwise provided in N.C. Gen.Stat. § 97–86, in every case appealed to the North Carolina Court of Appeals, the Rules of Appellate Procedure shall apply. The running of the time for filing and serving a notice of appeal is tolled as to all parties by a timely motion filed by any party to amend, to make additional findings[,] or to reconsider the decision, and the full time for appeal commences to run and is to be computed from the entry of an [o]rder upon any of these motions, in accordance with Rule 3 of the Rules of Appellate Procedure.

4 N.C. Admin. Code 10A.0702 (2012) (amended effective 1 January 2011) (emphasis added). In an unpublished decision of this Court, we recognized the deference given to the Commission in the application of its own rules of procedure, stating unequivocally that...