NO. COA14-313

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

THOMAS F. ADCOX,

Employee,

Movant,

v. Johnston County

No. 13 CVS 1106

CLARKSON BROTHERS CONSTRUCTION 

COMPANY,

Employer,

and

UTICA MUTUAL INSURANCE COMPANY, 

Carrier, 

Defendants.

Appeal by plaintiff from order entered 17 September 2013 by 

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

in the Court of Appeals 28 August 2014.

R. James Lore, Attorney at Law, by R. James Lore; and 

Nicholls & Crampton, PA, by Nicholas J. Dombalis, II, for 

plaintiff-appellant. 

Hedrick, Gardner, Kincheloe & Garofalo, LLP, by Kari L. 

Schultz and M. Duane Jones, for defendants-appellees. 

GEER, Judge.

In a 27 March 2008 opinion and award, the deputy 

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

care compensation awarded to plaintiff Thomas F. Adcox for his 

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

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

25 November 2008 opinion and award, affirmed the deputy 

commissioner's opinion and award with modifications only as to 

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

Commission did not specifically address the 25% attorneys' fee 

award. 

Subsequently, plaintiff filed a motion seeking an order 

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

in order to alleviate the bookkeeping burden on plaintiff's 

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

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

2008 opinion and award, by not specifically mentioning the 

attorneys' fees, necessarily denied plaintiff's attorneys'

request for approval of a fee. Plaintiff appealed to the 

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

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

denied a request for fees. 

We cannot agree with the Commission's and defendants' 

position that the November 2008 opinion and award denied 

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

that the Commission sub silentio reversed the deputy 

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

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

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

either the Commission affirmed the deputy commissioner or the 

Commission did not address the issue. 

In either event, defendants bore the burden to appeal that 

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

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

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

in December 2012, that the original panel had reversed the 

deputy commissioner and denied plaintiff's request for approval 

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

the trial court for further remand to the Commission for 

reconsideration of plaintiff's motion. 

Facts

On 28 February 1983, while employed by defendant Clarkson, 

plaintiff suffered an admittedly compensable head injury that 

left him permanently and totally disabled. Defendant Clarkson 

and defendant Utica National Insurance Group agreed to 

compensate plaintiff for his disability at a weekly rate of 

$248.00. 

In February 2003, the parties filed a settlement agreement 

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

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

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

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

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

directly to plaintiff's counsel. Thereafter, defendants 

authorized and began providing plaintiff with 60 hours of inhome professional attendant care services per week, provided by 

Kelly Home Health Services. 

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

defendants pay Mrs. Adcox directly for attendant care services 

instead of Kelly Services. The matter was heard by Deputy 

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

2008, the deputy commissioner entered an opinion and award 

allowing Mrs. Adcox to assume attendant care responsibilities 

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

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

of the attendant care compensation is approved for the 

Plaintiff's counsel." 

Both parties appealed to the Full Commission. On 25 

November 2008, the Full Commission entered an opinion and award 

affirming the deputy commissioner's opinion and award "with 

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

assume attendant care responsibilities seven days per week for 

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

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

plaintiff's counsel. Plaintiff appealed to this Court for 

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

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

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

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

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

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

Commission requesting that it direct payment of the attorneys' 

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

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

reporting of the attendant care income she receives. For tax 

purposes the failure by the carrier to direct separate checks 

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

higher than it actually is." Plaintiff requested that 

defendants be ordered to deduct 25% of the compensation payable 

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

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

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

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

from the original 2008 panel. Commissioner Danny Lee McDonald 

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

entered an order denying plaintiff's motion.

The Commission found that both parties had appealed Deputy 

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

Regarding defendants' appeal, the Commission noted that although 

defendants had not specifically assigned error to the attorneys' 

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

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

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

Commission then concluded: 

The Full Commission's Opinion and Award 

filed on November 25, 2008 directs 

Defendants to pay Mrs. Adcox for attendant 

care services from the date of the filing of 

the Opinion and Award at a rate of $10.00 

per hour, 7 days per week, 16 hours per day. 

The Opinion and Award does not include an 

award of attorneys' fees for Plaintiff's 

counsel. 

Plaintiff appealed the Full 

Commission's decision to the North Carolina 

Court of Appeals. Based upon a review of 

the Court's Opinion, it does not appear that 

Plaintiff assigned error to the Full 

Commission's decision in its Opinion and 

Award not to award an attorneys' fee to 

Plaintiff's counsel. 

As Plaintiff seeks to have the Full 

Commission direct Defendants to deduct and 

pay directly to counsel for Plaintiff 
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attorneys' fees which have not been awarded 

by the Full Commission, Plaintiff's Motion 

to Direct Payment of Attorneys' Fees to 

Plaintiff's Counsel is hereby DENIED. 

Commissioner McDonald -- the one commissioner who had served on 

the 25 November 2008 panel -- dissented without opinion. 

On 12 December 2012, plaintiff appealed the order to 

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

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

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

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

dismiss for lack of standing. 

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

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

trial court took judicial notice of the 25 November 2008 opinion 

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

It found in pertinent part: 

(2) that the December 10, 2012 Order 

from which Movant now purportedly appeals 

did not deny any attorneys fees, but simply 

clarified that the Commission had not 

awarded attorneys fees in the November 25, 

2008 Order; 

(3) that Movant's litigated request for 

attorney fees was denied on November 25, 

2008; 

(4) that Movant's current request for 

attendant care attorney fees per N.C. Gen. 

Stat. § 9-90 [sic] should be barred by § 97-

90 and the doctrine of res judicata; 
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(5) that the November 25, 2008, Order 

of the North Carolina Industrial Commission 

and the parties' appeal therefrom to the 

North Carolina Court of Appeals, represented 

a final judgment on the merits as to the 

issue of any attorney fee based on a 

percentage of attendant care medical 

benefits provided to Movant pursuant to 

North Carolina General Statutes § 97-25, 

which is the only claim at issue in this 

litigation[.]

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

prejudice. Plaintiff timely appealed to this Court. 

Discussion

Plaintiff first contends that defendants lacked standing to 

oppose both his motion to the Full Commission and his appeal 

from the 10 December 2012 decision of the Full Commission to 

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

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

citations and quotation marks omitted):

The Workers' Compensation Act provides that 

an appeal from an opinion and award of the 

Industrial Commission is subject to the same 

terms and conditions as govern appeals from 

the superior court to the Court of Appeals 

in ordinary civil actions. Under N.C. Gen. 

Stat. § 1–271 (2009), "[a]ny party 

aggrieved" is entitled to appeal in a civil 

action. A party aggrieved is one whose 

legal rights have been denied or directly 

and injuriously affected by the action of 

the trial tribunal. If the party seeking 

appeal is not an aggrieved party, the party 

lacks standing to challenge the lower 

tribunal's action and any attempted appeal 
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must be dismissed.

Plaintiff argues that because his motion to direct payments 

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

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

Defendants counter that they are an "aggrieved" party because 

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

result of this appeal, Defendants would either be required to 

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

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

amount of compensation to Mrs. Adcox, thereby subjecting 

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

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

plaintiff's counsel to have a pecuniary interest in an 

authorized medical provider could create a conflict between his 

obligations to represent his client and a defendant's obligation 

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

25."

Because of our resolution of this appeal, we need not 

decide whether defendants have standing in this case to 

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

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

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

appeal. 

Plaintiff's primary argument on appeal is that the trial 

court erred in finding that the Full Commission denied his 

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

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

grounds of res judicata. Plaintiff argues that the deputy 

commissioner's award of attorneys' fees became final when 

defendants did not specifically assign as error the award of 

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

Workers' Compensation Rules of the North Carolina Industrial 

Commission. Alternatively, plaintiff argues that the Commission 

affirmed the award of attorneys' fees. We review these

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

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

Rule 701 provides:

(2) After receipt of notice of appeal, 

the Industrial Commission will supply to the 

appellant a Form 44 Application for Review 

upon which appellant must state the grounds 

for the appeal. The grounds must be stated 

with particularity, including the specific 

errors allegedly committed by the 

Commissioner or Deputy Commissioner and, 

when applicable, the pages in the transcript 

on which the alleged errors are recorded. 

Failure to state with particularity the 

grounds for appeal shall result in 

abandonment of such grounds, as provided in 

paragraph (3). . . . 
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(3) Particular grounds for appeal not 

set forth in the application for review 

shall be deemed abandoned, and argument 

thereon shall not be heard before the Full 

Commission.

(Emphasis added.) 

This Court has emphasized that "the portion of Rule 701 

requiring appellant to state with particularity the grounds for 

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

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

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

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

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

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

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

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

particularity requirement is waiver of the grounds, and, where 

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

652 S.E.2d at 715.

Defendants argue that they properly appealed the issue of 

attorneys' fees to the Full Commission because they specifically 

listed Deputy Commissioner DeLuca's Award, which included the 

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

their Form 44 Application for review: 

Deputy Commissioner John B. DeLuca's Award, 
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dated March 27, 2008, on the grounds that it 

is based upon Findings of Fact and 

Conclusions of Law which are erroneous, not 

supported by competent evidence or evidence 

of record, and are contrary to the competent 

evidence of record, and are contrary to law: 

Award Nos. 1-3. 

This assignment of error is similar to the appellant's 

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

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

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

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

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

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

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

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

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

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

assignment of error is designed to allow counsel to argue 

anything and everything they desire in their brief on appeal. 

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

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

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

407, 409 (2005)). 

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

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

general objection to each paragraph of the award (without 

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

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

with sufficient particularity to give plaintiff notice of the 

legal issues that would be addressed by the Full Commission such 

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

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

Defendants' third assignment of error also is in stark 

contrast to defendants' fourth assignment of error: "Deputy 

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

that it failed to award attorney fees as requested by Defendants 

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

indicated specifically which particular aspect of the award they 

challenged. Significantly, defendants did not include a similar 

assignment of error for the award of attorneys' fees challenged 

here.

Defendants nonetheless contend that they met the 

particularity requirement by addressing the question of 

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

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

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

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

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

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

unlike the appealing plaintiff in Roberts, 

defendants in the present case complied with 

Rule 701(2)'s requirement to state the 

grounds for appeal with particularity by 

timely filing their brief after giving 

notice of their appeal to the Full 

Commission. Additionally, plaintiff does 

not argue that she did not have adequate 

notice of defendants' grounds for appeal. 

Plaintiff asserts only that defendants' 

failure to file a Form 44 should have been 

deemed an abandonment of defendants' appeal. 

Since both this Court and the plain language 

of the Industrial Commission's rules have 

recognized the Commission's discretion to 

waive the filing requirement of an 

appellant's Form 44 where the appealing 

party has stated its grounds for appeal with 

particularity in a brief or other document 

filed with the Full Commission, we overrule 

these assignments of error.

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

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

automatically result in a mandatory dismissal of the appeal by 

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

Commission whether to deem the grounds for appeal waived. In 

determining whether the Commission abused its discretion in 

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

Cooper considered whether the appellant provided the appellee 

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

Commission. 

Here, unlike in Cooper, the Commission did not explicitly 

address the issue purportedly raised by defendants on appeal in 

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

abuse of discretion for the Commission to address the attorneys'

fee issue, but it is unclear whether the Commission considered 

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

Commission Award removed the appealed prior award of attendant 

care attorney fees and awarded attendant care compensation to be 

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

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

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

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

the Commission regarding a determination by the deputy 

commissioner can amount to reversal. 

In fact, this Court has already rejected such a contention 

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

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

Commission failed to consider all the evidence presented 

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

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

rejected the plaintiff's argument, reasoning:

[I]n this case, the Full Commission's 

opinion states outright that it "affirms the 

Opinion and Award of Deputy Commissioner 

Deluca with modifications." . . . That is, 

the Full Commission's opinion is not an

order meant to stand on its own, but rather 

a modification of the deputy commissioner's 

order. As plaintiff herself states, the 

facts at issue were included in the deputy 

commissioner's order. We see no reason to 

require that such an order restate all the 

findings of fact and conclusions of law from 

the original order that need no 

modification. Considering that defendants 

filed an appeal containing thirty-two 

alleged errors, it is not surprising that 

the Full Commission did not address each 

individually. 

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

the Commission wished to affirm the deputy commissioner's 

opinion and award, nothing else appearing in the opinion and 

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

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

states that it "affirms the Opinion and Award of Deputy 

Commissioner DeLuca with modifications including the amount of 

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

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

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

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

to modify that award. 

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

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

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

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

N.C. Gen. Stat. § 97-90(c) provides:

If an attorney has an agreement for fee or 

compensation under this Article, he shall 

file a copy or memorandum thereof with the 

hearing officer or Commission prior to the 

conclusion of the hearing. If the agreement 

is not considered unreasonable, the hearing 

officer or Commission shall approve it at 

the time of rendering decision. If the 

agreement is found to be unreasonable by the 

hearing officer or Commission, the reasons 

therefor shall be given and what is 

considered to be reasonable fee allowed.

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

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

contention and the Commission's assumption that the Commission 

in 2008 intended to deny the fee request.

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

and award, either the Commission intended to affirm the deputy 

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

not consider the issue -- whether through inadvertence or 

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

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

deputy commissioner's award and silently denied plaintiff's 

counsel the 25% attorneys' fee.

Assuming, without deciding, that defendants had standing to 

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

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

Commission. When the Full Commission failed to explicitly 

reverse the deputy commissioner's award, defendants could have 

requested reconsideration and, if the Commission did not rule in 

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

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

(holding where Commission failed to address defendants' appeal 

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

counsel in its opinion and award, defendants properly appealed 

to this Court after Commission denied their motion to 

reconsider). 

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

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

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

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

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

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

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

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

case. 

Under the law of the case doctrine, defendants could not 

attack and the Commission could not reverse the award of 

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

not appeal Deputy Commissioner Berger's 2003 opinion and award 

finding that it did not have workers' compensation insurance 

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

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

that issue in subsequent proceedings").

Because the November 2008 opinion and award left the deputy 

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

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

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

substantive issue whether attorneys' fees had been awarded by 

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

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

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

improperly denying plaintiff's attorneys' fees. Consequently,

plaintiff was entitled to appeal the December 2012 order to 

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

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

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

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

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

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

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

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

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

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

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

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

expresses any view regarding defendants' arguments under Palmer. 

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

remand to the Commission. On remand, since the Commission 

denied plaintiff's motion under a misapprehension of law 

regarding the effect of its 2008 opinion and award, the 

Commission must reconsider its ruling on that motion. 

Reversed and remanded.

Judge STEELMAN concurs.

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

to 6 September 2014.