IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-219

No. COA21-335

Filed 5 April 2022

North Carolina Industrial Commission, I.C. No. Y18900

GWENDOLYN DIANETTE WALKER, Widow of ROBERT LEE WALKER, Deceased 

Employee, Plaintiff,

v.

K&W CAFETERIAS, Employer, LIBERTY MUTUAL INSURANCE COMPANY, 

Carrier, Defendants.

Appeal by plaintiff, and cross-appeal by defendants, from amended opinion and 

award entered 15 April 2021 by the North Carolina Industrial Commission. Heard in 

the Court of Appeals 14 December 2021.

The Sumwalt Group, by Vernon Sumwalt and Christa Sumwalt, for plaintiffappellant/cross-appellee.

Cranfill Sumner LLP, by Steven A. Bader and Roy G. Pettigrew, for defendantsappellees/cross-appellants.

ZACHARY, Judge.

¶ 1 Plaintiff Gwendolyn Dianette Walker appeals, and Defendants K&W 

Cafeterias and Liberty Mutual Insurance Company cross-appeal, from the Amended 

Opinion and Award of the Full North Carolina Industrial Commission (the 

“Commission”) ordering that Plaintiff’s counsel (1) disburse $900,000.00 in 

commercial uninsured/underinsured motorist (“UIM”) proceeds and $12,500.00 in 
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personal UIM proceeds free and clear of Defendants’ subrogation lien pursuant to 

N.C. Gen. Stat. § 97-10.2 (2021), and (2) disburse $50,000.00 in liability insurance 

policy proceeds according to the following distribution:

 $5,921.91 to Plaintiff’s counsel for costs and 

expenses incurred in the litigation of the ThirdParty Action,

 $16,666.67 to Plaintiff’s counsel for attorneys’ fees in 

the Third-Party Action, and

 $27,411.42 to Defendants towards Defendants’ 

subrogation lien.

After careful review, we affirm the Commission’s Opinion and Award in part, and we 

reverse in part and remand to the Commission with instructions to modify its order 

regarding the distribution of the proceeds.

Background

¶ 2 The full background of this case is set forth in our Supreme Court’s opinion in 

Walker v. K&W Cafeterias (Walker I), 375 N.C. 254, 846 S.E.2d 679 (2020). We recite 

here the facts relevant to the appeals currently before us.

¶ 3 On 16 May 2012, Robert Lee Walker (“Decedent”) was driving a vehicle owned 

by his employer, Defendant K&W Cafeterias, when he was involved in a fatal motor 

vehicle accident in Dillon, South Carolina. Walker I, 375 N.C. at 255, 846 S.E.2d at 

680. As our Supreme Court recognized in Walker I, however:

this case is not [P]laintiff’s workers’ compensation claim. 

That claim was fully resolved in 2013 when death benefits 
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were paid to [P]laintiff under the Workers’ Compensation 

Act due to [Decedent]’s work-related death. Instead, here 

we review what should happen to over $900,000 that was 

paid to [P]laintiff in the South Carolina wrongful death 

settlement with the at-fault driver. That settlement was 

reached in 2016, and to date, the money remains in the 

trust account of [P]laintiff’s attorneys.

Id. at 258, 846 S.E.2d at 682.

¶ 4 On 21 August 2012, Plaintiff filed a worker’s compensation claim for death 

benefits pursuant to N.C. Gen. Stat. §§ 97-38 to -40. Id. at 256, 846 S.E.2d at 681. On 

7 January 2013, a deputy commissioner entered a Consent Opinion and Award 

ordering Defendants to pay $333,763.00 in workers’ compensation death benefits to 

Plaintiff. Id.

¶ 5 In 2014, Plaintiff filed a wrongful death action in South Carolina (the “ThirdParty Action”), seeking damages from the third-party driver at fault in the accident 

that resulted in Decedent’s death. Id. “In 2016, [P]laintiff and the third-party [driver]

reached a settlement agreement, according to which [P]laintiff recovered a total of 

$962,500[,]” composed of “(1) $50,000 in liability benefits from the [at-fault driver]’s 

insurer; (2) $12,500 in personal UIM proceeds from [P]laintiff’s and [D]ecedent’s own 

personal UIM policy; and (3) $900,000 in UIM proceeds from a commercial UIM policy 

that K&W purchased with its automobile insurance carrier.” Id.

¶ 6 On 21 March 2016, Defendant Liberty Mutual asserted a subrogation claim; it 

“filed a request for a hearing with the North Carolina Industrial Commission in which 
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it sought repayment of the workers’ compensation death benefits it had paid to 

[P]laintiff beginning in 2013, claiming a lien under N.C.G.S. § 97-10.2 on the UIM 

proceeds that [Plaintiff] recovered from the South Carolina wrongful death 

settlement in 2016.” Id. at 256–57, 846 S.E.2d at 681.

¶ 7 On 10 July 2017, a deputy commissioner concluded that Defendants “were 

entitled to subrogation under N.C.G.S. § 97-10.2(f)(1)(c), (h), and ordered that 

[D]efendants be reimbursed out of the third-party recovery [from the settlement in 

the Third-Party Action] for the $333,763 in workers’ compensation benefits that they 

had paid to [Plaintiff] under the 7 January 2013 Consent Opinion and Award.” Id. at 

257, 846 S.E.2d at 681. Both the Commission and this Court affirmed the 10 July 

2017 Opinion and Award. Id. Our Supreme Court, however, “conclude[d] that 

[D]efendants may not satisfy their workers’ compensation lien by collecting from 

[P]laintiff's recovery of UIM proceeds in her South Carolina wrongful death 

settlement[,]” and reversed and remanded the case. Id. at 257–58, 846 S.E.2d at 682.

¶ 8 On remand following Walker I, the Commission entered an Amended Opinion 

and Award on 15 April 2021. The Commission concluded that, pursuant to Walker I, 

the “proceeds recovered in the third-party action from the two UIM policies are 

governed by South Carolina law and may not be used to satisfy Defendants’ workers’ 

compensation lien under N.C. Gen. Stat. § 97-10.2.” The Commission further

concluded that “Defendants’ lien attaches to the entire $50,000.00 in liability 
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insurance proceeds and not just Plaintiff’s share of those proceeds” pursuant to this 

Court’s opinion in In re Estate of Bullock, 188 N.C. App. 518, 655 S.E.2d 869 (2008). 

¶ 9 The Commission then ordered that Plaintiff’s counsel disburse both the 

$900,000.00 in commercial UIM proceeds and $12,500.00 in personal UIM proceeds 

“free and clear of Defendants’ subrogation interests under N.C. Gen. Stat. § 97-

10.2[,]” and further ordered that:

Plaintiff’s counsel shall disburse the $50,000.00 in liability 

policy proceeds as follows:

a. $5,921.91 to Plaintiff’s counsel for costs and 

expenses incurred in the litigation of the [ThirdParty Action],

b. $16,666.67 to Plaintiff’s counsel [for] attorney’s 

fees in the [Third-Party Action],

c. $27,411.42 to Defendants towards Defendants’ 

subrogation lien. 

¶ 10 On 15 April 2021, Plaintiff filed her notice of appeal. On 11 May 2021, 

Defendants filed their notice of appeal. 

Standard of Review

¶ 11 “The standard of review in workers’ compensation cases has been firmly 

established by the General Assembly and by numerous decisions of” our Supreme

Court. Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 

582, 584 (2008), reh’g denied, 363 N.C. 260, 676 S.E.2d 472 (2009).

Under the Workers’ Compensation Act, the Commission is 
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the sole judge of the credibility of the witnesses and the 

weight to be given their testimony. Therefore, on appeal 

from an award of the Industrial Commission, review 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. 

Id. (citations and internal quotation marks omitted). The Commission’s conclusions 

of law, however, are reviewed de novo. Walker I, 375 N.C. at 258, 846 S.E.2d at 682.

Plaintiff’s Appeal

¶ 12 On appeal, Plaintiff argues that the Commission erred by imposing a workers’ 

compensation lien against that portion of a wrongful death recovery that would have 

been distributed to heirs who did not receive any part of the workers’ compensation

award for the Decedent’s death. Our Supreme Court declined to reach this issue in 

Walker I. Id. at 255 n.1, 846 S.E.2d at 680 n.1. In the present appeal, we are bound 

by controlling precedent to reject Plaintiff’s argument.

¶ 13 Plaintiff concedes that this Court has already decided this issue in Bullock, in 

which this Court analyzed the plain language of N.C. Gen. Stat. § 97-10.2(f) and (h) 

and concluded that an employer and its insurer 

have a statutory lien against any payment made by a thirdparty tortfeasor arising out of an injury or death of an 

employee subject to the [Workers’ Compensation] Act. This 

lien may be enforced against any person receiving such 

funds. It is a lien for all amounts paid or to be paid to the 

employee, and it is mandatory in nature.

188 N.C. App. at 524, 655 S.E.2d at 873 (citations and internal quotation marks 
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omitted). 

¶ 14 Further, we found “no language in [the Workers’ Compensation Act] 

subrogating the rights of an employer to that of the beneficiaries of the workers’ 

compensation award.” Id. Accordingly, we determined that “[i]t was improper for the 

trial court to conclude that [the] respondents’ rights were subrogated to those of the 

minor nephews where the General Assembly has not expressed, implied, or intended 

any such limit.” Id. at 525, 655 S.E.2d at 873.

¶ 15 “Where 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, 324 N.C. 373, 

384, 379 S.E.2d 30, 37 (1989). Indeed, Plaintiff acknowledges that her arguments in 

favor of overturning Bullock are properly addressed to our Supreme Court and that 

“the current appeal is her next step” toward that goal. Thus, Plaintiff’s argument is 

overruled. 

Defendants’ Cross-Appeal

¶ 16 On cross-appeal, Defendants argue that the Commission erred (1) by 

concluding that the proceeds recovered from the personal UIM policy were exempt 

from subrogation pursuant to N.C. Gen. Stat. § 97-10.2, and (2) by failing to distribute 

the costs and attorneys’ fees pro rata pursuant to N.C. Gen. Stat. § 97-10.2(f)(2). 

A. Subrogation of Personal UIM Policy Proceeds
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¶ 17 Defendants first argue that the Commission’s Amended Opinion and Award 

“is in conflict with” our Supreme Court’s opinion in Walker I because the Commission 

determined that the personal UIM policy proceeds were exempt from subrogation.

We agree.

¶ 18 “Under N.C. Gen. Stat. § 97-10.2, a subrogation lien for the benefit of the 

workers’ compensation carrier automatically attaches to the third[-]party proceeds 

received by a plaintiff for whom the carrier has paid medical expenses arising from 

the injury by accident.” Anglin v. Dunbar Armored, Inc., 226 N.C. App. 203, 206, 742 

S.E.2d 205, 207 (2013). Section 97-10.2(f)(1) provides that 

[i]f the employer has filed a written admission of liability 

for benefits under this Chapter with, or if an award final in 

nature in favor of the employee has been entered by the 

Industrial Commission, then any amount obtained by any 

person by settlement with, judgment against, or otherwise 

from the third party by reason of such injury or death shall 

be disbursed by order of the Industrial Commission . . . .

N.C. Gen. Stat. § 97-10.2(f)(1).

¶ 19 In Walker I, our Supreme Court was presented with the issue of “whether to 

apply North Carolina or South Carolina law to the attempted subrogation of 

[P]laintiff’s wrongful death settlement UIM proceeds.” 375 N.C. at 258, 846 S.E.2d at 

682. The applicable choice of law was crucial to determining the outcome of the 

subrogation issue, because “[u]nder South Carolina UIM law, an insurer is barred, 

without exception, from seeking to be reimbursed with UIM proceeds for benefits it 
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has previously paid.” Id.

¶ 20 Choice-of-law issues arising in North Carolina proceedings concerning injuries 

suffered in South Carolina have come before this Court on numerous occasions. In 

such cases, under well-settled conflict-of-laws principles, “the tort law of South 

Carolina governs the substantive issues of liability and damages, while procedural 

rights are determined by the laws of North Carolina.” Robinson v. Leach, 133 N.C. 

App. 436, 438, 514 S.E.2d 567, 568, disc. review denied, 350 N.C. 835, 539 S.E.2d 293

(1999).

¶ 21 Of particular relevance here, this Court has previously addressed the issue of 

“what law applies to [a] trial court’s authority to adjust [a] North Carolina lien on [a] 

plaintiff’s UIM funds, despite their origin” from a South Carolina insurance policy.

Anglin, 226 N.C. App. at 206, 742 S.E.2d at 207. In Anglin, the plaintiff sought the

“reduction or elimination of [a workers’ compensation] subrogation lien pursuant to 

N.C. Gen. Stat. § 97-10.2(j)” on South Carolina UIM funds. Id. at 209, 742 S.E.2d at 

209. In that “N.C. Gen. Stat. § 97-10.2(j) is remedial in nature and remedial rights 

are determined by the law of the forum,” we concluded that “the trial court did not 

err in applying N.C. Gen. Stat. § 97-10.2(j) to [the] plaintiff’s UIM funds received 

under a South Carolina insurance policy[,]” thus allowing the subrogation lien to be 

asserted against the UIM proceeds. Id. at 209–10, 742 S.E.2d at 209 (citation and 

internal quotation marks omitted).
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¶ 22 In Walker I, Defendants relied on these choice-of-law precedents to argue that 

they were entitled to satisfy their subrogation lien against the commercial UIM 

proceeds pursuant to N.C. Gen. Stat. § 97-10.2 because “the commercial UIM policy 

purchased by K&W is not a South Carolina UIM policy. Specifically, they point[ed] 

out that the parties stipulated before the Commission that the commercial UIM policy 

was purchased and entered into in North Carolina.” 375 N.C. at 259, 846 S.E.2d at 

683. 

¶ 23 However, rather than viewing this as “an abstract choice of law issue[,]” our 

Supreme Court concluded that this issue was “properly analyzed under contract law 

interpreting a choice-of-law clause.” Id. at 259, 846 S.E.2d at 682. Crucial to our 

Supreme Court’s consideration of this issue in Walker I was “the effect of the 

endorsement that was added to the commercial UIM policy on 7 July 2011 . . . . The 

clear intent and effect of this endorsement was to provide for the application of South 

Carolina law to all UIM payments under the policy.” Id. at 260, 846 S.E.2d at 683. 

Our Supreme Court then reasoned that:

[T]he vehicle operated by [D]ecedent at the time of the 

accident fell within the categories of vehicles for which the 

policy endorsement intended to apply South Carolina law. 

The endorsement modified the insurance policy for “a 

covered ‘auto’ licensed or principally garaged in” South 

Carolina. As found by the Commission in the 10 July 2017 

Opinion and Award, the vehicle [D]ecedent was driving at 

the time of the accident was registered, garaged, and 

driven in South Carolina. These factors, and the fact that 
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the policy endorsement explicitly provided as a matter of 

contract that South Carolina UIM law would apply to 

payments made under the commercial UIM policy, 

demonstrate that South Carolina law should apply here. 

Accordingly, we hold that the endorsement requires South 

Carolina UIM law to apply here.

Id.

¶ 24 “[H]aving concluded that South Carolina law applie[d] to proceeds paid under 

Liberty Mutual’s UIM insurance policy,” our Supreme Court held that “[D]efendants’ 

subrogation lien under N.C.G.S. § 97-10.2 cannot be satisfied by the UIM proceeds 

that [P]laintiff received as part of the wrongful death settlement.” Id. at 261, 846 

S.E.2d at 683–84. Our Supreme Court thus reversed and remanded to the 

Commission for further proceedings. Id. at 261, 846 S.E.2d at 684.

¶ 25 On remand, in its Amended Opinion and Award, the Commission concluded 

that, pursuant to Walker I, “proceeds recovered in the third-party action from the two 

UIM policies are governed by South Carolina law and may not be used to satisfy 

Defendants’ workers’ compensation lien under N.C. Gen. Stat. § 97-10.2. See S.C. 

Code § 38-77-160 (2015).” However, Defendants correctly note that our Supreme 

Court did not indicate whether “its reasoning applied to both the personal UIM policy 

and the commercial UIM policy.” Because Walker I relied on the commercial UIM 

policy as “a contract to which [D]efendants are party[,]” 375 N.C. at 258, 846 S.E.2d 

at 682, in deciding to analyze the issue at bar as one of contract interpretation,
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Defendants argue in the present appeal that “the Supreme Court’s analysis, on its 

face, does not extend to the personal UIM policy[.]” Further, Defendants also suggest 

that “the factors cited by the Supreme Court to support its outcome – the conformity 

endorsement and the contractual relationship between Defendants and the UIM 

carrier – do not extend to the personal UIM policy.”

¶ 26 Defendants’ argument is persuasive; the contractual analysis undertaken by 

our Supreme Court in Walker I is inapplicable to the instant case. We thus return to 

the choice-of-law principles articulated in Anglin.

¶ 27 It is well established that subrogation pursuant to N.C. Gen. Stat. § 97-10.2 “is 

remedial in nature and that remedial rights are determined by the law of the forum.” 

Anglin, 226 N.C. App. at 207, 742 S.E.2d at 208 (citation and internal quotation 

marks omitted). As in Anglin, the forum in this case is North Carolina. See id. at 209, 

742 S.E.2d at 209. Accordingly, § 97-10.2 applies to the $12,500.00 in proceeds from 

the personal UIM policy, and the Commission erred by concluding otherwise.

¶ 28 Having so determined, and with Defendants’ subrogation interest in the 

$12,500.00 in personal UIM proceeds in mind, we next review the Commission’s 

distribution of costs and attorneys’ fees.

B. Distribution of Costs and Attorneys’ Fees

¶ 29 Defendants next contend that the Commission erred in its distribution award.

¶ 30 The Commission ordered that Plaintiff’s counsel disburse the $900,000.00 in 
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commercial UIM proceeds and the $12,500.00 in personal UIM proceeds “free and 

clear of Defendants’ subrogation interests under N.C. Gen. Stat. § 97-10.2.” With 

regard to the liability policy proceeds, the Commission ordered that Plaintiff’s counsel 

disburse the $50,000.00 in liability policy proceeds according to the following 

distribution:

 $5,921.91 to Plaintiff’s counsel for costs and 

expenses incurred in the litigation of the ThirdParty Action,

 $16,666.67 to Plaintiff’s counsel for attorneys’ fees in 

the Third-Party Action, and

 $27,411.42 to Defendants towards Defendants’ 

subrogation lien. 

¶ 31 In addition to the erroneous exclusion of the $12,500.00 in personal UIM 

proceeds from Defendants’ subrogation interest, Defendants argue that the 

Commission’s distribution contravenes the purpose of the Workers’ Compensation 

Act by inequitably ordering the disbursement of costs and expenses from the 

$50,000.00 in liability policy proceeds rather than against Plaintiff’s total

$962,500.00 recovery, when “most of these costs did not go toward the fraction of the 

recovery that is subject to the lien.” We disagree.

¶ 32 The Workers’ Compensation Act specifically addresses the payment of costs 

and attorneys’ fees from a third-party recovery:

[A]ny amount obtained by any person by settlement with, 
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judgment against, or otherwise from the third party by 

reason of such injury or death shall be disbursed by order 

of the Industrial Commission for the following purposes 

and in the following order of priority:

a. First to the payment of actual court costs taxed by 

judgment and/or reasonable expenses incurred by 

the employee in the litigation of the third-party 

claim.

b. Second to the payment of the fee of the attorney 

representing the person making settlement or 

obtaining judgment, and except for the fee on the 

subrogation interest of the employer such fee shall 

not be subject to the provisions of G.S. 97-90 but 

shall not exceed one third of the amount obtained or 

recovered of the third party.

c. Third to the reimbursement of the employer for all 

benefits by way of compensation or medical 

compensation expense paid or to be paid by the 

employer under award of the Industrial 

Commission.

d. Fourth to the payment of any amount remaining 

to the employee or his personal representative.

N.C. Gen. Stat. § 97-10.2(f)(1). 

¶ 33 As regards attorneys’ fees, § 97-10.2(f)(2) provides that “[t]he attorney fee paid 

under (f)(1) shall be paid by the employee and the employer in direct proportion to 

the amount each shall receive under (f)(1)c and (f)(1)d hereof and shall be deducted 

from such payments when distribution is made.” Id. § 97-10.2(f)(2).

¶ 34 Defendants assert that § 97-10.2(f)(1)’s “distribution scheme breaks down” 

following Walker I because “[b]y statute, the lien attaches to ‘any amount obtained by 
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any person.’ But here, the vast majority of the third-party recovery cannot be used to 

satisfy Defendants’ lien.” Instead, Defendants propose that the equitable approach 

would be “to employ a pro rata distribution of the costs and attorneys’ fees that 

accounts for the disparity between the total recovery and the amount subject to the 

lien.” 

¶ 35 Regarding costs, the Commission noted that “[t]he parties stipulated that 

Plaintiff’s attorneys incurred a total of $5,921.91 in actual costs and reasonable 

expenses in pursuing her claim against the Third Parties.” Walker I makes clear that 

under South Carolina law, $900,000.00 of the $962,500.00 recovery is not subject to 

Defendants’ subrogation lien, leaving $62,500.00 to distribute pursuant to § 97-

10.2(f)(1). See Walker I, 375 N.C. at 261, 846 S.E.2d at 683–84. Section 97-10.2(f)(1)a

gives the reimbursement of the “actual court costs taxed by judgment and/or 

reasonable expenses incurred by the employee in the litigation of the third-party 

claim” priority over a subrogation lien. N.C. Gen. Stat. § 97-10.2(f)(1)a. As the parties 

stipulated, the costs and expenses were incurred in the litigation of the liability claim. 

Accordingly, the sum of $5,921.91 should be disbursed from the $50,000.00 in

proceeds of the personal liability policy. 

¶ 36 Continuing with the distribution scheme laid out by § 97-10.2(f), we next 

address the disbursement of attorneys’ fees. Here, the Commission found that 

“[u]nder the provisions of the attorney’s fee agreements stipulated into the record 
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herein and N.C. Gen. Stat. § 97-10.2(f)(1)b, Plaintiff’s attorneys are entitled to a fee 

of one[-]third, or 33 1/3 percent, of any sum recovered from the liability policy 

proceeds, which amounts to $16,666.67.” However, the Commission did not address 

the disbursement of attorneys’ fees from the $12,500.00 in personal UIM policy 

proceeds.

¶ 37 Section 97-10.2(f)(2) requires that the parties shall pay attorneys’ fees “in 

direct proportion to the amount each shall receive under (f)(1)c and (f)(1)d hereof[.]” 

Id. § 97-10.2(f)(2). As the Commission correctly concluded:

The proportion of the amount Defendants were disbursed 

under N.C. Gen. Stat. § 97-10.2(f)(1)c ($[41,282.13]) to the 

amount Plaintiff was disbursed under N.C. Gen. Stat. § 97-

10.2(f)(1)d ($0) is 100% to 0%. Defendants are therefore 

responsible for paying 100% of the $[20,833.33] attorney’s 

fee pursuant to N.C. Gen. Stat. § 97-10.2(f)(2).

¶ 38 “Where a statute’s language is clear and unambiguous, we are not at liberty to 

divine a different meaning through other methods of judicial construction. This Court 

must apply the law as enacted by the legislature.” Stahl v. Bowden, 274 N.C. App. 

26, 31, 850 S.E.2d 588, 592 (2020) (citation and internal quotation marks omitted). 

The language of § 97-10.2(f)(2) is “clear and unambiguous,” and with the exception of 

the particular amounts in error due to the Commission’s exclusion of the personal 

UIM proceeds from its calculation, the Commission correctly applied the statutory 

scheme in determining the proper distribution of the proceeds. 
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¶ 39 Accordingly, the sum of $5,921.91 shall be disbursed in reimbursement of the 

costs and reasonable expenses from the $50,000.00 in liability insurance policy 

proceeds. The sum of $16,666.67 in attorneys’ fees shall be disbursed from the 

$50,000.00 in liability insurance policy proceeds, and the sum of $4,166.67 in 

attorneys’ fees shall be disbursed from the $12,500.00 in personal UIM policy 

proceeds, for a total of $20,833.33 in attorneys’ fees from these two policy proceeds. 

The sums remaining from the third-party recovery proceeds ($62,500.00 - $5,921.91 

- $20,833.33 = $35,744.76) shall be disbursed to Defendants to satisfy their workers’ 

compensation subrogation lien pursuant to N.C. Gen. Stat. § 97-10.2(f)(1)c.

Conclusion

¶ 40 Plaintiff’s argument on appeal that the Commission erred by imposing a 

workers’ compensation lien against that portion of a wrongful death recovery that 

would have been distributed to heirs who did not receive any part of the workers’ 

compensation award for the Decedent’s death is foreclosed by precedent. See Bullock, 

188 N.C. App. at 524–25, 655 S.E.2d at 873. Thus, that portion of the Commission’s 

Amended Opinion and Award is affirmed.

¶ 41 The Commission erred by concluding that the proceeds of the personal UIM 

policy are not subject to Defendants’ subrogation lien pursuant to Walker I. However, 

the Commission properly ordered that the costs and reasonable expenses be 

distributed from the proceeds of the liability policy, and that one-third of the proceeds 
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of each policy be distributed as attorneys’ fees. Accordingly, we reverse that portion 

of the Amended Opinion and Award and remand to the Commission with instructions 

to enter an award distributing the proceeds as follows:

1) Plaintiff’s counsel shall disburse the $900,000.00 in commercial UIM 

proceeds “free and clear of Defendants’ subrogation interests under N.C. 

Gen. Stat. § 97-10.2.”

2) Counsel shall disburse the $50,000.00 in third-party liability policy 

proceeds as follows:

a. $5,921.91 to Plaintiff’s counsel for costs and 

expenses incurred in the litigation of the ThirdParty Action,

b. $16,666.67 to Plaintiff’s counsel for attorneys’ fees, 

and

c. $27,411.42 to Defendants in satisfaction of 

Defendants’ subrogation lien.

3) Counsel shall disburse the $12,500.00 in Decedent’s personal 

UIM proceeds as follows:

a. $4,166.67 to Plaintiff’s counsel for attorneys’ fees, 

and

b. $8,333.33 to Defendants in satisfaction of 

Defendants’ subrogation lien.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Judges WOOD and GRIFFIN concur.