COA 13-220 and COA 13-466
Plaintiff was injured on 13 August 2010. Tradesource and its insurer, Arch Insurance Company ("Arch"),
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.
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 Defendants
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.
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. See N.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.").
Industrial Commission Rule 702 states:
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 "the time for filing notice of appeal is tolled when a timely motion for reconsideration is filed." Allender v. Starr Elec. Co., Inc., ___ N.C.App. ___, 734 S.E.2d 139 (Nov. 6, 2012) (unpublished disposition), available at 2012 WL 5395036. Though an unpublished opinion has no binding precedential value, the Allender Court correctly acknowledged the application of Rule 702 in that case, and we enforce it here. Accordingly, Paradigm's motion for reconsideration tolled the filing period for its notice of appeal, which was filed well within thirty days of the Commission's 4 January 2013 order. Therefore, Plaintiff's motion to dismiss is denied, and Paradigm's conditional petition for writ of certiorari is dismissed.
Our review of an opinion and award of the Commission is "limited to consideration of whether competent evidence supports the Commission's findings of fact and whether the findings support the Commission's conclusions of law." Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citations omitted). The Commission's conclusions of law are fully reviewable on appeal. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). "If the finding of fact is essentially a conclusion of law, however, it will be treated as a conclusion of law which is reviewable [de novo] on appeal." Bowles Distrib. Co. v. Pabst Brewing Co., 69 N.C. App. 341, 344, 317 S.E.2d 684, 686 (1984).
Section I includes an analysis of most of the issues raised by Plaintiff and Defendants on appeal. It does not, however, address Plaintiff's argument that the Commission should have removed Paradigm from the case or Defendants' argument that the Commission erred in determining that the rehabilitation professionals were acting as insurance adjusters in violation of its rules. Those questions are considered in Section II of this opinion, which focuses on the issues relating to Paradigm.
On appeal, Plaintiff and Defendants both contest the Commission's award of pro rata adaptive housing to Plaintiff. Defendants also argue that the Commission erred by granting payment for retroactive attendant care and by requiring Defendants to pay the cost of Plaintiff's life care plan. In addition, Plaintiff asserts that the Commission erred by failing to award him "all of the cost of [his a]ttorneys' fees." We affirm the Commission's awards of pro rata adaptive housing, retroactive attendant care, and attorneys' fees and reverse its award of the cost of Plaintiff's life care plan.
Both parties argue on appeal that the Commission erred by distributing the cost of adaptive housing on a pro rata basis. Plaintiff contends that the Commission erred in reducing his award by the amount he paid in rent before his injury, and Defendants argue that the Commission erred in requiring them to pay any cost beyond those necessary to make Plaintiff's apartment accessible. We affirm the Commission on this issue.
In its 6 November 2012 opinion and award, the Commission found the following pertinent facts:
(Italics added). The Commission also came to the following conclusions:
Given those findings and conclusions, the Commission awarded Plaintiff "the difference between Plaintiff's pre-injury rent of $237.50 and his post-injury rent for handicap[ped] adaptive housing until further [o]rder of the Commission."
At the time of Plaintiff's injury, N.C. Gen. Stat. § 97-25 provided in pertinent part that
2005 N.C. Sess. Laws ch. 448, § 6.2. "Medical compensation" was defined at that time as
1991 N.C. Sess. Laws Ch. 703, § 1.
The controlling Supreme Court opinion in this case is Derebery v. Pitt Cnty. Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986). In Derebery, the plaintiff lived with his parents before and after his injury. Id. at 194, 347 S.E.2d at 816. The plaintiff did not have any property of his own. See id. Because the owner of the parents' home refused to allow it to be adapted for the plaintiff's use, the Commission concluded that "[the d]efendant should furnish [the] plaintiff with a completely wheelchair-accessible place to live and provide all reasonable and necessary care for [the] plaintiff's well-being," including "an appropriate place for [the] plaintiff to live in view of his condition." Id.
On appeal to this Court, we held "that the provision of [section] 97-29
Dissenting from the majority opinion in Derebery, Justice Billings offered the following additional analysis:
Id. at 205-06, 347 S.E.2d at 822 (Billings, J., dissenting) (citations and certain brackets omitted; emphasis in original).
We applied the Derebery opinion ten years later in Timmons, 123 N.C.App. at 456, 473 S.E.2d at 356. The plaintiff in that case, like the plaintiff in Derebery, was a paraplegic who lived with his parents. Id. at 458, 473 S.E.2d at 357. After the plaintiff's injury, the defendant paid to modify his parents' home to make it accessible for the plaintiff's use. Id. at 458, 473 S.E.2d at 357. The
On appeal, this Court determined that "the Commission's finding [ — ] that the accommodations at [the] plaintiff's parents' home [were] no longer suitable [ — ] support[ed] its conclusion that [the] plaintiff [was] entitled to have [the] defendant pay for adding to [the] plaintiff's new home those accessories necessary to accommodate [the] plaintiff's disabilities." Id. at 461, 473 S.E.2d at 359 (internal quotation marks omitted). "We [did] not agree with [the] plaintiff, however, that Derebery require[d the] defendant to pay the entire cost of constructing [the plaintiff's] residence." Id. (emphasis added). Instead, we concluded that,
Id. at 461-62, 473 S.E.2d at 359. The Supreme Court affirmed that decision per curiam. Timmons v. N.C. Dep't of Transp., 346 N.C. 173, 484 S.E.2d 551 (1997).
On appeal in this case, Defendants assert that Plaintiff's adaptive housing is an "ordinary expense[] of life [which] Plaintiff is required to pay out of his weekly benefits." Relying on the language in Timmons, "Defendants contend their only legal obligation under the [Act] regarding housing is to provide Plaintiff with modifications to his housing as required by his disability, which they have done." Plaintiff responds that this is a misreading of the law. At oral argument, Plaintiff asserted that the dissent authored by Justice Billings in Derebery and this Court's opinion in Timmons should be construed as the general rule in these matters, while the Supreme Court's opinion in Derebery should be construed as an exception to that rule. In his brief, Plaintiff articulated his interpretation of those opinions in the following way:
Plaintiff contends that this case falls firmly under the alleged Derebery exception and that Defendants must therefore pay the entire rent for his adapted apartment home. We find neither party's argument persuasive and affirm the Commission's pro rata determination in its entirety.
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. 2005 N.C. Sess. Laws ch. 448, § 6.2 ("[T]he [Commission] may order such further treatments as may in the discretion of the Commission be necessary."). Section 97-2(19), as written at the time of Plaintiff's injury, further explained that the type of medical compensation the employer must pay is "in the judgment of the Commission" as long as it is "reasonably ... required to effect a cure or give relief." 1991 N.C. Sess. Laws Ch. 703, § 1. The Supreme Court's decision in Derebery and our own decision in Timmons represent the outer limits of the
In this case, the Commission determined that Defendants should pay the pro rata difference between the rent required for Plaintiff's new, handicapped-accessible home and the rent Plaintiff had to pay as 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 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 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. For the above reasons, both parties' arguments are overruled, and the Commission's opinion and award as to this issue is affirmed.
Relevant to the issue of retroactive attendant care, the Commission found that, as a result of his injury, Plaintiff was not fully independent and required assistance. Specifically, the Commission found that:
Shortly after his injury, Plaintiff was cared for in a hospital. He was later moved to a rehabilitation center in Georgia. On 4 February 2011, Plaintiff was discharged from the rehabilitation center. When he inquired about whether he would begin to receive attendant care, he was informed that he would have to get a prescription for treatment from his Georgia-based treating physician, Dr. John Lin.
Plaintiff did not have a consultation with Dr. Lin and was discharged without a provision for attendant care services. Nonetheless, a report from the rehabilitation center "indicated that Plaintiff was not fully independent and that he continued to require assistance ... with his mobility, specifically assistance with transferring from his wheelchair to his bed, tub, toilet[,] and car and that he continued to require supervision due to his spasticity level."
After Plaintiff was discharged from the rehabilitation center, he moved into a private home in Georgia. He was cared for by his father, who left his job to stay with Plaintiff, and his sister, who came from Mexico to assist her brother. During that time, Plaintiff's father and sister
These services were provided from approximately 9:00 a.m. to 11:00 p.m. each day.
Plaintiff's sister returned to Mexico on 5 March 2011. Plaintiff's father remained with Plaintiff as his sole caretaker. On 16 March 2011, Dr. Lin ordered professional attendant care for Plaintiff until Plaintiff could get an
Plaintiff moved to North Carolina a few months later. On 11 July 2011, Dr. Lin issued discharge instructions, ordering that attendant care services be discontinued because "Plaintiff was functioning independently with his activities of daily living and mobility." Though Plaintiff's medical case manager asked Dr. Lin to reconsider that decision, he refused.
On 28 March 2011, Plaintiff presented himself for a medical evaluation concerning the transfer of his care from Georgia to North Carolina. His new, Charlotte-based doctor, Dr. William Bockenek, disagreed with Dr. Lin regarding attendant care and prescribed professional attendant care for eight hours per day, seven days per week.
In its 6 November 2012 opinion and award, the Commission stated that it gave "greater weight to the opinions of Dr. Bockenek over those of Dr. Lin on Plaintiff's attendant care needs." It also concluded that:
(Emphasis added). Therefore, the Commission ordered Defendants to reimburse Plaintiff's father and sister for the attendant care they had provided to Plaintiff and to continue providing attendant care services for eight hours per day until further notice.
Defendants argue on appeal that the Commission erred in awarding retroactive attendant care to Plaintiff, citing an opinion of this Court from 2011 in Mehaffey v. Burger King, ___ N.C.App. ___, 718 S.E.2d 720 (2011). In that case, the plaintiff's wife provided him with care for approximately nine months. Id. at ___, 718 S.E.2d at 722. Afterward, a nurse consultant with the Commission recommended that the defendants compensate the plaintiff with eight hours of daily attendant care for five days each week. Id. The defendants did not authorize such care beforehand. Id. About ten months after the plaintiff's wife stopped attendant care, the plaintiff's family physician recommended sixteen hours of attendant care services per day, retroactive to the date of his original diagnosis. Id. In its opinion and award, the Commission gave the most weight to the family physician and awarded compensation for the plaintiff's wife's past and future attendant care. Id. at ___, 718 S.E.2d at 722-23.
Id. at ___, 749 S.E.2d at 256-57 (citation omitted). Instead of affirming the Commission's original award, however, the Court pointed out that "an injured worker is required to obtain approval from the Commission within a reasonable time after he selects a medical provider." Id. Accordingly, the Court stated that the plaintiff was only entitled to reimbursement for the attendant care services provided by his wife if he sought approval from the Commission within a reasonable period of time. Id. Because it was unclear from the record whether that had occurred, the Court remanded the matter for further findings of fact and conclusions of law by the Commission. Id.
Given the opinion of our Supreme Court, Defendants' argument is meritless. See id. Unlike Mehaffey II, the record in this case reflects the Commission's finding and conclusion that "Plaintiff timely sought reimbursement for [the] attendant care services [provided by his father and sister]." This determination is not disputed by the parties. Accordingly, we affirm the Commission's opinion and award on the issue of retroactive attendant care pursuant to our Supreme Court's opinion in Mehaffey II.
As noted above, the employer in workers' compensation cases
Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488, 495, 665 S.E.2d 781, 786-87 (2008) (citation, internal quotation marks, and certain ellipses omitted). In addition, when reviewing an opinion and award of the Commission, we are "limited to a consideration of whether there [is] any competent evidence to support the ... Commission's findings of fact and whether [those] findings... support the Commission's conclusions of law." Ard v. Owens-Illinois, 182 N.C. App. 493, 496, 642 S.E.2d 257, 259 (2007) (citation, internal quotation marks, and emphasis omitted).
In this case, Defendants assert that the Commission erred in requiring them to pay the costs of Plaintiff's life care plan and contest findings of fact 32, 33, and 34 as insufficient to support its 11th conclusion of law. The Commission's findings state in pertinent part as follows:
Given those findings, the Commission concluded as a matter of law that:
In support of this conclusion, the Commission cited to 1991 N.C. Sess. Laws Ch. 703, then known as N.C. Gen.Stat. § 97-2(19); 2005 N.C. Sess. Laws ch. 448, § 6.2, then known as N.C. Gen.Stat. § 97-25; and Scarboro, 192 N.C.App. at 488, 665 S.E.2d at 781.
In Scarboro, we affirmed the Commission's tax of the costs of the plaintiff's life care plan as against the defendants because the plaintiff's doctor opined that the life care plan was reasonable and "medically necessary" for the plaintiff. Id. at 496, 665 S.E.2d at 787. In so holding, we determined that the doctor's opinion constituted competent evidence sufficient to support the Commission's conclusion that the life care plan was a "reasonable rehabilitative service." Id. For that we reason, we affirmed the Commission's opinion and award on that issue. Id.
Following the Commission's opinion and award in this case, Commissioner Tammy Nance offered the following dissenting opinion on the issue of the allocation of the costs of Plaintiff's life care plan:
On appeal, Defendants contest the Commission's findings of fact as not based on competent evidence and request that we adopt Commissioner Nance's dissenting opinion. In response, Plaintiff contends that "the preparation of a life care plan may be considered to be a necessary service in a workers' compensation action ... when it is deemed `necessary as a result of the injuries suffered by [the] plaintiff,'" citing an unpublished opinion of this Court.
Plaintiff's argument that a life care plan is a "necessary service" is without merit. Plaintiff relies on no binding authority for that point, and we are unable to find any. If the Commission's conclusion of law is to be upheld on this issue, it must be because that conclusion is adequately supported by its own findings of fact, which must in turn be supported by competent evident. See Ard, 182 N.C.App. at 496, 642 S.E.2d at 259. In Scarboro, we affirmed the Commission's conclusion that the costs of the life care plan should be imposed on the defendants because its conclusion was supported by the finding that the plaintiff's doctor had deemed the life care plan to be "reasonable and medically necessary." Scarboro, 192 N.C.App. at 496, 665 S.E.2d at 787.
In this case, the salient features of findings of fact 32 and 33 are more properly categorized as conclusions of law.
See In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (citations, internal quotation marks, and certain commas omitted). By characterizing the life care plan and the items therein as reasonable and "medically necessary," findings 32 and 33 involve "the exercise of judgment [and] the application of legal principles," not a resolution of evidence. See id. For that reason, they constitute conclusions of law and, thus, are not competent support for the Commission's 11th identified conclusion. Nevertheless, finding of fact 34 constitutes a finding of fact because it resolves as an evidentiary matter the nature of Dr. Bockenek's opinion, i.e., "that the recommendations he provided... to develop Plaintiff's [life care plan] were reasonably necessary." Therefore, we must determine whether finding of fact 34 supports conclusion of law 11. We hold that it does not.
While finding of fact 34 might appear to support the Commission's conclusion that the cost of the life care plan is a reasonably necessary rehabilitative service, this is not
Citing N.C. Gen.Stat. § 97-88.1, Plaintiff contends that the Commission erred in failing to award him the entire cost of his attorneys' fees on grounds that Defendants have exhibited "a stubborn and unfounded litigiousness" throughout the case. In support of that contention, Plaintiff briefly repeats his arguments regarding adaptive housing and Paradigm.
Section 88.1 of the Act provides as follows:
N.C. Gen.Stat. § 97-88.1 (2011).
Chaisson v. Simpson, 195 N.C. App. 463, 484, 673 S.E.2d 149, 164 (2009) (citations, internal quotation marks, brackets, and certain commas omitted).
Beyond the alleged "absurdity" of Defendants' argument, Plaintiff offers no evidence of a stubborn or unfounded litigiousness. Pursuant to our discussions of Defendants' arguments, supra and infra, we find no merit in this claim. Even to the extent that Defendants were legally incorrect, we see nothing in the record to suggest that they have provided anything less than a sound and sensible defense for their clients. Therefore, we hold that the Commission lacked the authority to tax Defendants with attorneys' fees under section 97-88.1 and affirm the portion of the Commission's opinion and award that concludes the same.
In addition to the arguments discussed above, Defendants appeal on grounds that the Commission erred in determining that the assigned nurse case managers were acting as insurance adjusters, concluding that they were not operating within the Commission's Rules for Utilization of Rehabilitation Professionals in Workers' Compensation Claims ("the RP Rules"), and ordering Defendants to assign different nurse case managers under the RP Rules. Further, Plaintiff contends that the Commission erred in
Defendants expressly challenge the Commission's findings of fact and conclusions of law regarding the RP Rules and the assigned rehabilitation professionals.
(Emphasis added).
In their brief, Defendants assert that Ms. Linn and Ms. Sproat (collectively, "the nurse case managers") should not be removed as violating the RP Rules because, as employers, Defendants have the authority to direct medical treatment.
In pertinent part, the RP Rules provide as follows:
4 N.C. Admin. Code 10C.0102 (2012) (effective 1 January 1996).
4 N.C. Admin Code 10C.0103 (2012) (amended effective 1 June 2000).
4 N.C. Admin. Code 10C.0106 (2012) (amended effective 1 June 2000).
4 N.C. Admin. Code 10C.0107 (2012) (amended effective 1 June 2000).
In its opinion and award, the Commission determined that the nurse case managers violated the RP Rules for two reasons: (1) they were given the authority to approve or deny payment for medical care within the auspices of the contract plan, which constituted unpermitted "claims adjustment type services," and (2) the contractual relationship between Paradigm and Defendants "conflict[ed] with the conduct allowed under [the] Rules." Assuming arguendo that the Commission's findings are based on competent evidence, they do not support its conclusion that the nurse case managers violated the RP Rules.
First, to the extent that there is competent evidence to support the Commission's finding regarding the nurse case managers' medical care authority, the Commission has not offered any reason why the existence of this authority is a violation of the RP Rules. The RP Rules cited by Plaintiff only state that rehabilitation professionals must exercise "independent professional judgment" — they do not address medical care authority. Further, accepting for the purposes of argument that such authority constitutes "claims adjustment type services,"
Rule .0106(f) prohibits RPs from "claims negotiation, investigative activities, or ... any other non-rehabilitation activity." However, neither the Commission's opinion nor the Plaintiff's brief offers any reason that the nurse case managers' approval of payment for certain medical treatment, which was already approved under the outcome plan contract, should constitute "claims negotiation" or "investigative activities," and we see no such reason. Further, the Commission made no finding regarding whether the nurse case managers' actions in approving payment for certain treatments constituted a "non-rehabilitation activity." In our view, approving medical treatment, when the provider requires approval before proceeding with treatment, constitutes "assist[ing] in the restoration of injured workers as nearly as possible to the workers' pre-injury level of physical function[,]" 4 N.C. Admin Code at 10C.0103(d), particularly when, as here, the RP is simply and solely communicating the authorization already in effect, and not making an independent judgment about whether the treatment should be approved.
Second, neither Plaintiff nor the Commission provide any support for the Commission's conclusion that the relationship between Paradigm and Defendants "conflict[ed]"
As discussed above, Paradigm moved to intervene, to receive additional evidence, and for reconsideration following the Commission's 6 November 2012 opinion and award. The Commission dismissed those motions on 28 November 2012 for lack of jurisdiction because Plaintiff had already filed notice of appeal. Afterward, Paradigm filed a second motion for reconsideration and for an advisory opinion, and the Commission denied those motions as well. On appeal, Paradigm argues that the Commission erred in dismissing those motions. We disagree.
It is well established that, as a general rule, "an appeal takes a case out of the jurisdiction of the trial court" and, thereafter, the court is functus officio. Sink v. Easter, 288 N.C. 183, 197, 217 S.E.2d 532, 541 (1975) (citations omitted). Because Paradigm filed its motions after Plaintiff had already filed his notice of appeal, the Commission lacked jurisdiction to issue a ruling on those motions. As Plaintiff notes in his brief, Paradigm admitted to this fact in its response to Plaintiff's motion to dismiss. We hold that the Commission correctly denied Paradigm's original motions for reconsideration, to present additional evidence, and to intervene, and we affirm its 28 November 2012 order on those grounds.
Alternatively, Paradigm contends that the Commission abused its discretion in denying Paradigm's request for an advisory opinion and second motion for reconsideration. For support, Paradigm cites predominantly to Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5 (1986), where we stated that, when a trial court is divested of jurisdiction because of a pending appeal, it "retains limited jurisdiction to hear and consider a ... motion to indicate what action it would be inclined to take were an appeal not pending." Id. at 478-79, 343 S.E.2d at 7 (citations omitted). As a preliminary matter, we note that the cases cited by Paradigm only support its argument that the Commission had jurisdiction to provide an advisory opinion. None of the cited cases indicate that the Commission could grant Paradigm's second motion to reconsider. Accordingly, Paradigm's argument regarding its second motion to reconsider is overruled, and we limit our review to its motion for an advisory opinion.
To the extent that the Commission has some limited authority to provide an advisory opinion when jurisdiction has been divested because of a pending appeal, that authority is not mandatory. See id. Our opinion in Talbert does not state that the Commission is obligated to provide an advisory opinion, and we see nothing to suggest that it is. See id. Accordingly, and as Paradigm appears to accept in its brief, consideration of the Commission's failure to exercise such authority must be reviewed for abuse of discretion. Under that standard, the Commission's order can be overturned only where its "ruling is manifestly unsupported by reason or ... so arbitrary that it could not have been the result of a reasoned decision." See State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
While the Commission appears to have some limited discretion to provide an advisory opinion in these circumstances under Talbert, we see nothing in the record — and Paradigm offers no argument or reason — to suggest that the Commission's decision to refrain from exercising that limited authority was arbitrary or manifestly unsupported by reason. Indeed, given our Supreme Court's repeated declaration that advisory opinions are not proper for the courts, we must hold that the Commission's decision to decline to give one was entirely reasonable. See Martin v. Piedmont Asphalt & Paving, 337 N.C. 785, 788, 448 S.E.2d 380, 382 (1994) ("As this Court has previously pointed out, it is not a proper function of courts to give advisory opinions....") (citations omitted). Accordingly, we affirm the Commission's denial of Paradigm's second motion for reconsideration and for an advisory opinion.
In addition to the arguments discussed above, Plaintiff contends on appeal in COA 13-220 that Paradigm should have been removed from this case for "engaging in illegal insurance activities, its conflict of interests[,] and ... failing to unwind the contract between Paradigm and [Arch]." Paradigm alleges, however, that it was excluded from this case by chicanery on the part of Plaintiff. Specifically, Paradigm has contended that: (1) it was not served with notice of any of the proceedings leading up to the Commission's 6 November 2012 opinion and award in violation of the RP Rules;
Given the allegations made by Paradigm and Plaintiff, we conclude that the record is insufficient to address their remaining arguments on appeal. Paradigm's allegations suggest that they were improperly excluded from this case and that the Commission lacked crucial information when making its contested decisions. Plaintiff's response suggests, in part at least, that this is not so. Because the record is not competent on these issues, we cannot resolve them on appeal. For that reason, we return jurisdiction to the Commission and remand for further proceedings on these Paradigm issues, including the taking of additional evidence, if necessary.
AFFIRMED in part; REVERSED in part; REMANDED in part.
Judges BRYANT and DILLON concur.
4 N.C. Admin. Code 10C.0110 (2012) (amended effective 1 June 2000) (emphasis added). Pursuant to our discussion infra, we do not address the merits of this argument. Nonetheless, we note that the cases cited in Paradigm's brief rely on the application of Rule 19 of the North Carolina Rules of Civil Procedure — not RP Rule 10C.0110.
