Hughes v. Heusen

• Court: North Carolina Industrial Commission
• Decided: June 3, 2011
• Docket: I.C. NO. 640668.
• Status: Published

Opinion

*********** The sole issue pending before the Full Commission is whether plaintiff should be responsible for payment of a portion of the cost for the transcript of Plaintiff's deposition testimony in an Expedited Medical Motion proceeding. This issue arises from a Form 33 request for hearing filed by Defendants seeking to change Plaintiff's authorized treating physician. Defendants had previously entered into a Consent Opinion and Award agreeing to approval of the doctors who were currently treating Plaintiff as Plaintiff's authorized treating physicians. The matter was referred to a Deputy Commissioner for an Expedited Medical Motion hearing.

The Deputy Commissioner allowed Plaintiff to testify by deposition to provide evidence which was deemed necessary to decide the issue pending. On November 17, 2010 the Deputy Commissioner entered an Order denying Defendants' Motion to change Plaintiff's treating physician. On November 18, 2010 Plaintiff filed a motion seeking an Order directing Defendants to pay the cost of Plaintiff's deposition transcript. On December 1, 2010 the Deputy Commissioner ordered that both parties shall be responsible for payment of the invoice for the transcript of Plaintiff's deposition testimony. The Deputy Commissioner mistakenly indicated that Plaintiff filed the Expedited Medical Motion.

On December 2, 2010 Defendants appealed from the November 17, 2010 Order of the Deputy Commissioner denying their motion for change of treating physician. On December 2, 2010 Plaintiff appealed to the Full Commission from the Order of the Deputy Commissioner taxing a portion of the costs for her deposition transcript to Plaintiff. Plaintiff's appeal was not processed by the Full Commission as part of the Expedited Medical Motion process.

On December 23, 2010 the Full Commission affirmed the Order of the Deputy Commissioner and denied Defendants' motion to change Plaintiff's treating physician. The Full Commission declined to address Plaintiff's motions under N.C. Gen. Stat. §§ 97-88 and 97-88.1 for Defendants to pay attorney's fees as a part of costs, stating "the Expedited Medical Motion process is not the appropriate vehicle for addressing such motions." Plaintiff's December 2, 2010 appeal was not before the Full Commission panel deciding Defendants' Expedited Medical Motion.

Upon consideration of the record and the briefs of the parties, the Full Commission reverses the Order of the Deputy Commissioner. The Full Commission finds and concludes that Defendants should be solely responsible for payment of the invoice for the transcript of Plaintiff's deposition testimony of $404.40. The Full Commission again declines to address Plaintiff's request for attorney fees under N.C. Gen. Stat. § 97-88 as a part of costs and under N.C. Gen. Stat. § 97-88.1 for Defendants' prosecution of this claim without reasonable grounds as these issues have arisen from an Expedited Medical Motion procedure and neither party has had an opportunity for a full evidentiary hearing on these attorney's fee issues.

It is therefore ORDERED that Defendants shall be solely responsible for payment of the invoice for the transcript of Plaintiff's deposition testimony of $404.40.

Defendants shall pay the costs of these proceedings.

This the ___ day of May 2011.

S/____________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/__________________ LINDA CHEATHAM COMMISSIONER

S/___________________ DANNY LEE McDONALD COMMISSIONER