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Judge could alter workers' comp attorney fee award.

Byline: Bill Cresenzo

Superior court judges have the discretion to consider additional evidence when deciding whether to award additional attorney fees involving workers' compensation claims and home health care aides, the North Carolina Supreme Court has ruled.

The decision overturns a 2016 Court of Appeals ruling and holds that a Buncombe County Superior Court judge didn't exceed his authority by approving attorney's fees for a retroactive Industrial Commission award to a bartender injured on the job.

The Court of Appeals had found that Superior Court Judge Alan Thornburg improperly awarded additional attorney's fees to the attorneys who represented Keith Saunders, who suffered "debilitating injuries" to his back while on the job in 2010, before the commission on his worker's comp claim.

Saunders and his attorney, Henry Teich of Asheville, had agreed that Teich would receive 25 percent of any recovery. Saunders' condition worsened after surgery, and he required home health care. After a discovery dispute, the defendants, ADP Total Source and its insurance carrier, Liberty Mutual/Helmsman Management, stopped paying for a home healthcare aide, so Saunders' husband started tending to him.

Saunders' attorneys consulted with another attorney, Mark Sumwalt of Charlotte, who specializes in securing worker's compensation for the cost of professional home health aides. After "many" billing hours and litigation expenses, the commission granted retroactive home health care compensation but refused to grant attorneys' fees associated with the additional award.

Saunders sought review of the commission's decision regarding attorneys' fees in superior court, as allowed by the state's workers' comp statute, and Thornburg ruled in their favor. He considered an affidavit from Saunders' husband, saying that he and his husband agreed that any retroactive home health care costs they helped recover would be subject to attorney fees, a fact that wasn't submitted to the commission.

Judge John Tyson, writing for a unanimous Court of Appeals panel, ruled that Thornburg had exceeded his authority to review the reasonableness of the commission's award by considering the new evidence and vacated the order for lack of jurisdiction. Tyson suggested that the reasonableness review provided by the statute "may have become an obsolete relic."

The Supreme Court granted a petition for discretionary review, and Justice Robin Hudson, writing for a unanimous panel, found that the role for superior court judges wasn't so obsolete after all.

"We disagree and conclude that the superior court below acted exactly within the authority and discretion provided to it by the plain language of N.C.G.S. 97-90(c)," Hudson wrote.

The statute permits superior court judges to consider additional evidence and exercise its "discretion" in reviewing the reasonableness or setting the amount of attorney's fees, Hudson wrote.

"The superior court had jurisdiction to take and consider additional evidence not previously considered by the Commission," Hudson wrote, and "based its determination on factual findings and an exercise of discretion, as specifically authorized in N.C.G.S. 97-90(c)."

Teich and Mark Sumwalt, Vernon Sumwalt, and Lauren H. Walker of the Sumwalt Law Firm in Charlotte represented Saunders.

"The main takeaway is that fees are allowable in attendant care claims if the contract calls for the fees," Sumwalt said. "If the commission does not agree with that, we have the right to go to the superior court and the superior court can decide it."

Duane Jones, Kari L. Schultz, and Linda Stephens of Hedrick Gardner in Raleigh represented the defendant. The attorneys could not be reached for comment.

The 25-page decision is Saunders v. ADP TotalSource Fl Xi, Inc. (Lawyers Weekly No. 010-001-19). The full text of the opinion is available online at

Follow Bill Cresenzo on Twitter @bcresenzonclw

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Title Annotation:Saunders v. ADP TotalSource Fl Xi, Inc.
Author:Cresenzo, Bill
Publication:North Carolina Lawyers Weekly
Date:Feb 14, 2019
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