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Whitfield v. Laboratory Corporation of America6/17/2003
, it is the duty and responsibility of the full Commission to decide all of the matters in controversy between the parties.'" Id. (quoting Vieregge v. N.C. State University, 105 N.C. App. 633, 638, 414 S.E.2d 771, 774 (1992)). We must therefore remand this issue to the Commission for determination.
VIII.
Plaintiff also requests that defendants be ordered to pay plaintiff's attorney's fees incurred in connection with the present appeal, pursuant to N.C. Gen. Stat. § 97-88 (2001). Under N.C.G.S. § 97-88 a reviewing court may award costs of the appeal, including attorney's fees, to an injured employee "if (1) the insurer has appealed a decision to the full Commission or to any court, and (2) on appeal, the Commission or court has ordered the insurer to make, or continue making, payments of benefits to the employee." Flores v. Stacy Penny Masonry Co., 134 N.C. App. 452, 459, 518 S.E.2d 200, 205 (1999) (citations omitted). The statutory requirements have been met in the present case. Unlike N.C.G.S. § 97-88.1, a request for attorney's fees under N.C.G.S. § 97-88 does not require a determination that a hearing be "brought, prosecuted or defended without reasonable ground" in order to assess the cost of the proceedings upon the party who has defended the proceedings. Brown v. Public Works Comm., 122 N.C. App. 473, 477, 470 S.E.2d 352, 354 (1996). Our determination of this issue is therefore not controlled by the Commission's decision whether to award attorney's fees on remand under N.C.G.S. § 97-88.1 as discussed above.
We note that in the present case, the Commission's award requires plaintiff to pay her attorney "one-fourth of the indemnity compensation awarded to plaintiff," but does not take into account or include expenses related to medical care and treatment in determining the amount plaintiff must pay to her attorney. See Hyler v. GTE Prod. Co., 333 N.C. 258, 264-65, 425 S.E.2d 698, 702-03 (1993) (distinguishing between general "compensation" and "medical compensation" under the Workers' Compensation Act). Our decision does not affect the amount of total indemnity compensation plaintiff will receive under the Commission's award, of which plaintiff's attorney is entitled a one-fourth interest under the terms of the award. Further, many of the assignments of error asserted by defendants focus on the credibility determinations by the full Commission, an area in which, as thoroughly discussed above, this Court is bound by the findings of the Commission if supported by any competent evidence. We find this to be an appropriate case to exercise our discretion and grant plaintiff's request for attorney's fees for the cost of this appeal. See Brown, 122 N.C. App. at 477, 470 S.E.2d at 354. We remand this matter to the Commission for a determination of the amount of reasonable attorney's fees owed plaintiff as a result of this appeal.
Affirmed in part and remanded in part.
Judges HUNTER and CALABRIA concur.
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