NO. COA13-1345
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
CARL H. POOLE,
Plaintiff,
v. North Carolina Industrial
Commission
I.C. No. 239480
UNIVERSITY OF NORTH CAROLINA,
CHAPEL HILL,
Defendant.
Appeal by defendant from opinion and award entered 27
August 2013 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 8 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Karissa J. Davan, for defendant-appellant.
The Law Offices of Martin J. Horn, PLLC, by Martin J. Horn,
for plaintiff-appellee.
BRYANT, Judge.
Where plaintiff’s declaration of willingness to resume
vocational rehabilitation and evidence in support thereof is
deemed credible by the Industrial Commission, such a finding
properly supports the correct legal standard and will not be
disturbed on appeal. The Industrial Commission did not err in
awarding plaintiff continued medical treatment with a doctor not
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authorized to accept workers’ compensation patients where UNC
had acknowledged and already accepted plaintiff’s change in
medical providers.
On 23 April 1992, plaintiff Carl H. Poole suffered a
compensable injury to his lower back while moving tables for his
employer, the University of North Carolina at Chapel Hill
(“UNC”). On 9 May 1992, UNC filed a Form 19, “Report of
Employee’s Injury or Occupational Disease,” and on 5 June a Form
21, “Agreement for Compensation for Disability,” regarding
plaintiff’s injury. Under the North Carolina Workers’
Compensation Act, UNC was to provide plaintiff with temporary
total disability payments, medical care, and other benefits such
as vocational rehabilitation relating to plaintiff’s lower back
injury.
On 28 April 1998, UNC filed a Form 24, “Application to
Terminate or Suspend Payment of Compensation,” alleging that
plaintiff had failed to cooperate with vocational rehabilitation
services. UNC’s Form 24 was granted by order on 10 July 1998,
suspending plaintiff’s temporary disability compensation
payments “until plaintiff makes a proper showing that he is
willing to comply with reasonable rehabilitation efforts.”
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On 15 July 2005, plaintiff filed a Form 18 seeking pain
management treatment which UNC accepted. On 25 May 2007,
plaintiff filed a Form 33, “Request for Hearing,” alleging that
he had an ongoing disability and change in his condition. A
Deputy Commissioner dismissed plaintiff’s claim with prejudice
on 17 November 2010, concluding that plaintiff’s failure to
bring his claim within a reasonable period of time had
prejudiced UNC as a result.
On 18 January 2012, the Full Commission (“the Commission”)
re-opened plaintiff’s case and remanded it for a new evidentiary
hearing before a Deputy Commissioner, which was held on 30 April
2012. In its award and order filed 27 August 2013, the Full
Commission reversed the ruling of the Deputy Commissioner and
ordered UNC to reinstate plaintiff’s temporary disability
compensation payments. UNC appeals.
______________________________
UNC raises two issues on appeal: whether the Commission (I)
applied an incorrect legal standard; and (II) erred in finding
that one of plaintiff’s doctors was an authorized treating
physician.
I.
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UNC contends the Commission applied an incorrect legal
standard in determining that plaintiff was entitled to temporary
total disability after 8 May 2008. We disagree.
"Appellate review of an award from the Industrial
Commission is generally limited to two issues: (1) whether the
findings of fact are supported by competent evidence, and (2)
whether the conclusions of law are justified by the findings of
fact." Starr v. Gaston Cnty. Bd. of Educ., 191 N.C. App. 301,
304, 663 S.E.2d 322, 325 (2008) (citations omitted). "Where
there is competent evidence to support the Commission's
findings, they are binding on appeal even in light of evidence
to support contrary findings." Id. at 304—05, 663 S.E.2d at 325
(citation omitted). "The Commission's conclusions of law are
reviewed de novo." Id. at 305, 663 S.E.2d at 325.
UNC argues that the Commission applied an incorrect legal
standard “by allowing [p]laintiff to merely assert a present
willingness to comply with vocational rehabilitation.” North
Carolina General Statutes, section 97-25, holds that “[t]he
refusal of the employee to accept any medical, hospital,
surgical or other treatment or rehabilitative procedure when
ordered by the Industrial Commission shall bar said employee
from further compensation until such refusal ceases . . . .”
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N.C. Gen. Stat. § 97-25 (1992).1 “G.S. 97-25 is clear in its
mandate that a claimant who refuses to cooperate with a
rehabilitative procedure is only barred from receiving further
compensation "until such refusal ceases . . . ." Sanhueza v.
Liberty Steel Erectors, 122 N.C. App. 603, 608, 471 S.E.2d 92,
95 (1991) (holding that where the plaintiff’s weekly
compensation benefits were suspended pursuant to N.C.G.S. § 97-
25, the fact remained “that plaintiff may again be entitled to
weekly compensation benefits upon a proper showing by plaintiff
that he is willing to cooperate with defendants’ rehabilitative
efforts”).
The Commission found as fact that plaintiff’s compensation
payments were suspended, effective 18 March 1998, “until
plaintiff makes a proper showing that he is willing to comply
with reasonable rehabilitation efforts.” The Commission also
found that although plaintiff’s doctors felt plaintiff would
never be able to return to work due to his injuries, plaintiff’s
management of his pain and depression had improved, and
vocational rehabilitation would have “proactive benefits” for
him. The Commission then found that:
1
As plaintiff’s claim arose in 1992, plaintiff’s claim for
continuing medical compensation must be considered under
N.C.G.S. § 97-25 (1992).
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[b]ased upon a preponderance of the
evidence, Plaintiff’s testimony at the
hearing before Deputy Commissioner Ledford
on May 8, 2008 that if there was employment
available within his restrictions and
physical limitations, he would be willing to
cooperate with pursuing employment at that
time, including attending job fairs and
vocational rehabilitation is found to be
credible and constituted a proper showing
that he is willing to comply with reasonable
rehabilitation efforts.
Finally, the Commission found as fact that:
[b]ased upon a preponderance of the evidence
in view of the entire record, the Full
Commission finds that Plaintiff’s suspension
of compensation for failure to cooperate
with “reasonable rehabilitation efforts”
ended as of May 8, 2008 and compensation
should have been reinstated as of May 8,
2008 as [UNC] had notice he was willing to
cooperate and [UNC] has not proven that he
was no longer disabled on as of May 8, 2008.
UNC contends the Commission applied an incorrect legal
standard, stating that allowing a plaintiff to assert a present
willingness to comply with vocational rehabilitation was
rejected in Powe v. Centerpoint Human Servs. (Powe I), 215 N.C.
App. 395, 715 S.E.2d 296 (2011), and that a test of constructive
refusal of suitable employment must be applied. Id. at 405—06,
715 S.E.2d at 303—04.
In Powe, both the plaintiff and the defendant appealed an
order of the Industrial Commission which found that the
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plaintiff failed to “fully comply” with the defendant’s
vocational rehabilitation services. This Court found that the
legal standard applied by the Commission was incorrect, as the
Commission needed to determine the extent to which the
plaintiff, who was participating in some but not all vocational
rehabilitation services, failed to “fully comply.” Id. at 406,
715 S.E.2d at 304. Noting that “declarations of a willingness
to comply are not necessarily sufficient if deemed not credible
by the Commission[,]” this Court remanded for the Commission to
make further findings of fact as to the plaintiff’s compliance.
Id. at 402, 715 S.E.2d at 301.
Powe is not applicable to the instant case. Here,
plaintiff’s compensation was suspended beginning 18 March 1998
for failure “to cooperate with vocational rehabilitation
services,” with suspension to continue “until plaintiff makes a
proper showing that he is willing to comply with reasonable
rehabilitation efforts.” The Commission found that plaintiff
resumed his willingness to cooperate with vocational
rehabilitation services on 8 May 2008 but that UNC made no
attempt to provide plaintiff with any vocational services after
24 March 1998. UNC argues that plaintiff has not met his burden
of demonstrating he is truly willing to undertake vocational
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services. Although “declarations of a willingness to comply are
not necessarily sufficient if deemed not credible by the
Commission[,]” here the Commission clearly noted in its findings
of fact that it reviewed the entire record before it and found
plaintiff’s testimony that he wished to begin vocational
rehabilitation again to be credible.
UNC further contends the Commission applied an incorrect
legal standard because UNC was prejudiced by plaintiff’s delay
in seeking the resumption of his benefits. UNC cites Daugherty
v. Cherry Hosp., 195 N.C. App. 97, 670 S.E.2d 915 (2009), in
support of its contention.
In Daugherty, the plaintiff was injured in 1992 while
working as a nurse for the defendant. Id. at 98, 670 S.E.2d at
917. In 1993, the Commission granted plaintiff’s claim for
physical injury, but denied her claim for psychological injury.
Id. at 99—100, 670 S.E.2d at 917—18. The plaintiff resigned
from her job with the defendant in 1994. Id. at 100, 670 S.E.2d
at 918. In 2006, the plaintiff filed a Form 33, requesting a
hearing as to her denied claim for psychological injury and
seeking retroactive benefits and compensation. Id. The
Commission denied the plaintiff’s claim, holding that it was now
barred by laches. Id. at 101, 670 S.E.2d at 918. On appeal,
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this Court reversed and remanded, finding that the doctrine of
laches was not applicable. Instead, the Commission needed to
make findings as to whether the plaintiff’s claim should be
dismissed, pursuant to Rule 613, for failure to timely
prosecute. Id. at 103—04, 670 S.E.2d at 919—20.
Daugherty is not applicable to the instant case. Here,
pursuant to N.C. Gen. Stat. § 97-25, plaintiff’s claim for
temporary disability compensation was suspended pending
plaintiff’s willingness to resume cooperating with UNC’s
vocational rehabilitation services. Unlike the plaintiff in
Daugherty whose claim was denied thirteen years prior to her
seeking a hearing, here plaintiff’s claim was only suspended,
pending a finding by the Commission that plaintiff met the
requirements needed to lift the suspension.
We are mindful of the length of time about which UNC
complains. However, we note that plaintiff’s temporary
disability compensation was only suspended, not terminated, for
refusal to cooperate with vocational rehabilitation. As such,
the Commission could order, at any time, the reinstatement of
plaintiff’s compensation upon a determination that plaintiff’s
willingness to cooperate was supported by credible evidence.
See Powe v. Centerpoint Human Servs. (Powe II), ___ N.C. App.
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___, ___, 742 S.E.2d 218, 926 (affirming the decision of the
Commission to reinstate the plaintiff’s temporary disability
benefits, despite evidence that the plaintiff was extremely
uncooperative with vocational rehabilitation efforts, for “even
though there may be evidence from which a fact finder could
determine plaintiff has failed to cooperate with vocational
rehabilitation efforts, [this Court] must uphold the finding [of
the Commission].” (citation omitted)); Bowen v. ABF Freight
Sys., Inc., 179 N.C. App. 323, 331, 633 S.E.2d 854, 859—60
(2006) (“Where any competent evidence exists to support a
finding of the Commission, that finding is binding upon this
Court. Thus, even though there may be evidence from which a
fact finder could determine [the] plaintiff has failed to
cooperate with vocational rehabilitation efforts, we must uphold
the finding.” (citation omitted)). Accordingly, as the
Commission’s opinion and award contained findings of fact,
supported by competent evidence, which in turn supported its
legal conclusions, those findings are conclusive on appeal.
UNC’s argument is overruled.
II.
UNC next argues that the Commission erred in finding that
one of plaintiff’s doctors was an authorized treating physician.
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Specifically, UNC contends the Commission erred in awarding
plaintiff continued treatment with a doctor and at a facility
that does not accept workers’ compensation patients. We
disagree.
UNC argues that the Commission erred in finding that Dr.
Clarke, one of plaintiff’s doctors, was an authorized treating
physician. In its findings of fact, the Commission noted that
after plaintiff’s compensation payments were suspended on 18
March 1998, plaintiff sought treatment from Dr. Clarke for his
lower back injury beginning 22 September 1998. The Commission
then found as fact that “[b]ased upon [UNC]’s Claim Activity
Notes, [UNC] authorized Plaintiff to receive treatment from Dr.
Clarke for ‘facets of his workers’ compensation claim.’”
Additionally, the Commission made findings of fact that
plaintiff continued to seek treatment from Dr. Clarke for lower
back pain, as well as heart disease, sleep apnea, incontinence,
depression, diabetes, and renal disease, through 4 August 2011,
when Dr. Tobin took over plaintiff’s care from Dr. Clarke.
These findings of fact are supported by competent evidence in
the record. Further, plaintiff filed a Form 18 seeking pain
management treatment with UNC on 15 July 2005, which UNC
accepted on 31 August and approved on 6 September. As such, the
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Commission’s findings that UNC acknowledged and accepted
plaintiff’s change in medical providers to Dr. Clarke, even
though Dr. Clarke was not an authorized medical provider, are
properly supported by competent evidence. See N.C.G.S. § 97-
25(d) (2013) (“The refusal of the employee to accept any medical
compensation when ordered by the Industrial Commission shall bar
the employee from further compensation until such refusal
ceases[.]”).
UNC further argues that the Commission erred because Dr.
Tobin, plaintiff’s current treating physician, is not authorized
to accept workers’ compensation patients and, thus, such a
finding by the Commission violates N.C.G.S. § 97-25. The
Commission made findings of fact, based on the evidence, that
UNC continued to provide plaintiff with medical treatment even
though plaintiff switched to a non-authorized doctor, Dr.
Clarke, on 22 September 1998, after plaintiff’s authorized
medical providers discontinued his treatment on 15 June 1998.
Therefore, UNC accepted plaintiff’s claims for compensation for
medical treatment through Dr. Clarke, even though Dr. Clarke was
not authorized to accept workers’ compensation patients. The
Commission also found, and the record supports, that Dr. Tobin
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succeeded Dr. Clarke as plaintiff’s primary physician.
Accordingly, UNC’s argument is overruled.
Affirmed.
Judge STEELMAN concurs.
Judge HUNTER, Robert C., concurs in part and dissents in
part.
.
NO. COA13-1345
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
CARL H. POOLE,
Plaintiff,
v. North Carolina Industrial
Commission
I.C. No. 239480
UNIVERSITY OF NORTH CAROLINA
CHAPEL HILL,
Defendant.
HUNTER, Robert C., Judge, concurring in part and dissenting
in part.
I concur with the majority’s well-reasoned conclusions as
to the legal standard used by the Full Commission and the
finding that one of plaintiff’s doctors was an authorized
treating physician. However, because I believe the Full
Commission was required to address defendant’s motion to dismiss
and the Deputy Commissioner’s dismissal of plaintiff’s claim
pursuant to Workers’ Compensation Rule 613 in its opinion and
award, I respectfully dissent and conclude that this matter
should be remanded for further proceedings.
Background
Carl H. Poole (“plaintiff”) suffered a compensable work-
related injury on 23 April 1992. His employer, the University
of North Carolina at Chapel Hill (“UNC”), filed a Form 21,
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“Agreement for Compensation for Disability,” and provided
plaintiff with medical care and vocational rehabilitative
services. Plaintiff’s benefits were suspended on 10 July 1998
for failure to cooperate with the vocational rehabilitation
services that defendant provided. Compensation was to be
suspended “until plaintiff makes a proper showing that he is
willing to comply with reasonable rehabilitation efforts.”
On 15 May 2007, plaintiff filed a Form 33, “Request for
Hearing,” in which he requested compensation be reinstated and
alleged a “change in condition.” On 7 May 2007, defendant filed
a motion to dismiss, alleging that plaintiff’s claim was barred
by laches and the statute of limitations. The parties were
heard on defendant’s motion to dismiss by Deputy Commissioner
Kim Ledford (“Deputy Commissioner Ledford”) on 8 May 2008. In
Deputy Commissioner Ledford’s opinion and award, the issues for
determination were stated as follows:
1. Whether Plaintiff’s claim is barred by
the Statute of Limitations, either pursuant
to N.C. Gen. Stat. § 97-47 or other statute?
2. Whether Plaintiff’s claim otherwise
should be dismissed due to his failure to
prosecute this claim in a timely manner per
the Rules of the Industrial Commission?
3. Whether Plaintiff’s claim for additional
medical treatment is otherwise barred?
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After hearing testimony from the parties and receiving
evidence, Deputy Commissioner Ledford entered the following
relevant findings of fact in her opinion and award:
20. Following the suspension of benefits and
the last payment of indemnity compensation
in July 1998, Plaintiff did not seek
reinstatement of indemnity compensation
until the filing of his Form 33 in May 2007,
almost nine years after the entry of the
Order of Special Deputy Commissioner Gillen.
21. Plaintiff has shown no reason for his
failure to appeal in a timely manner the
Order of Special Deputy Commissioner Gillen,
which suspended Plaintiff’s ongoing total
disability benefits. Plaintiff has
otherwise shown no reason for his failure to
seek reinstatement of indemnity compensation
for almost nine years, an unreasonable
delay. Due to this unreasonable delay,
Plaintiff has essentially abandoned and
failed to prosecute his claim.
22. This unreasonable delay has hindered the
Defendant’s ability to investigate the
matter. The delay has prevented Defendant
from providing services otherwise intended
to lessen Plaintiff’s period of disability.
23. During the passage of the nine years
since the suspension of his benefits,
Plaintiff’s physical condition has changed
due primarily to health issues unrelated to
his compensable injury, including his heart
disease and kidney disease, which are now
his primary limiting health conditions.
24. The Defendant has been prejudiced by
Plaintiff’s failure to pursue this matter in
a timely manner. Based upon Plaintiff’s
unreasonable delay, and the resulting
prejudice to Defendant, sanctions short of
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dismissal of the claim will not suffice.
Pursuant to these findings, Deputy Commissioner Ledford
entered the following conclusions of law:
8. Pursuant to Rule 613 of the North
Carolina Industrial Commission Workers’
Compensation Rules, “Upon proper notice and
an opportunity to be heard, any claim may be
dismissed with or without prejudice by the
Industrial Commission on its own motion or
by motion of any party for failure to
prosecute or to comply with these Rules or
any Order of the Commission.” Prior to
dismissing a claim pursuant to this Rule,
the Commission must find: (1) that Plaintiff
acted in a manner which deliberately or
unreasonably delayed the matter, (2) that
Defendant was prejudiced by the Plaintiff’s
delay or failure to prosecute, and (3) that
sanctions short of dismissal would not
suffice. Lee v. Roses Stores, Inc., 162
N.C. App. 129, 131, 590 S.E.2d 404, 406
(2004).
9. In this case, Plaintiff has been given
proper notice and opportunity to be heard on
the issue of dismissal of his case. The
greater weight of credible evidence shows
that Plaintiff failed to prosecute his claim
within a reasonable period of time. Where
Plaintiff waited nine years to pursue his
claim for additional benefits, Defendant has
been prejudiced, and nothing short of
dismissal would be fair and just.
Thus, Deputy Commissioner Ledford dismissed plaintiff’s claim
with prejudice on 17 November 2010. Plaintiff appealed this
ruling to the Full Commission.
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By order of the Full Commission on 18 January 2012, the
case was reopened and remanded for a new evidentiary hearing.
The Full Commission found “old” files related to the case in the
Industrial Commission file room, including “correspondence from
the parties, Industrial Commission Orders, various forms filed
by the parties, form agreements, [and] medical records submitted
primarily as attachments to various motions dating from 1992 to
2007.” Because Deputy Commissioner Ledford did not have access
to these files when she entered her opinion and award, the Full
Commission remanded the matter for a new Deputy Commissioner to
gather this evidence, order a transcript of the proceedings, and
forward the transcript and evidence to the Full Commission for
review and a determination.
Deputy Commissioner James C. Gillen (“Deputy Commissioner
Gillen”) presided over the new evidentiary hearing. On 13
February 2013, he entered an order transferring the requested
materials to the Full Commission but did not issue an opinion
and award on the substance of the parties’ claims. After
receiving the evidence and transcript from Deputy Commissioner
Gillen, the Full Commission entered its opinion and award on 27
August 2013, from which defendant appeals. In its opinion and
award, the Full Commission stated that it “reviewed the prior
Opinion and Award based upon the record of the proceedings
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before Deputy Commissioner Ledford and Deputy Commissioner
Gillen and the briefs, supplemental briefs and arguments of the
parties before the Full Commission.” However, the Full
Commission’s opinion and award contained no findings of fact or
conclusions of law relating to the substance of Deputy
Commissioner Ledford’s dismissal of plaintiff’s claim pursuant
to Rule 613, the almost nine-year delay in the proceedings, or
the potential prejudice to defendant that may have resulted from
the delay. Rather, the Full Commission examined the new
evidence introduced before the Deputy Commissioner and concluded
that plaintiff had carried his burden of demonstrating his
willingness to cooperate with vocational rehabilitation. Thus,
it ordered that plaintiff was entitled to temporary total
disability benefits beginning 8 May 2008 and continuing until
further order of the Commission. Defendant timely appealed from
the Full Commission’s opinion and award.
Discussion
On appeal, defendant argues that the Full Commission erred
by failing to dismiss plaintiff’s claim pursuant to Rule 613.
Because the Full Commission failed to address this contention in
its opinion and award, I believe that the matter should be
remanded for entry of findings of fact and conclusions of law on
this issue.
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The Industrial Commission has exclusive original
jurisdiction over workers’ compensation proceedings. Thomason
v. Red Bird Cab Co., 235 N.C. 602, 604, 70 S.E.2d 706, 708
(1952). It is required to hear the evidence and file its award,
“together with a statement of the findings of fact, rulings of
law, and other matters pertinent to the questions at issue[.]”
N.C. Gen. Stat. § 97-84 (2013). “The reviewing court’s inquiry
is limited to two issues: whether the Commission’s findings of
fact are supported by competent evidence and whether the
Commission’s conclusions of law are justified by its findings of
fact.” Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345
S.E.2d 374, 379 (1986). The Commission’s findings of fact are
conclusive on appeal when supported by competent evidence even
though evidence exists that would support a contrary finding.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
684 (1982).
“[W]hen the transcript and record before the full
Commission is insufficient to resolve all the issues, the full
Commission must conduct its own hearing or remand the matter for
further hearing.” Crump v. Independence Nissan, 112 N.C. App.
587, 589, 436 S.E.2d 589, 592 (1993) (quotation marks omitted).
However, “[a]lthough the decision to take additional evidence is
one within its sound discretion, the full Commission has the
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duty and responsibility to decide all matters in controversy
between the parties[.]” Id. (emphasis added); see also Payne v.
Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 501,
616 S.E.2d 356, 360 (2005) (“It is well established that the
full Commission has the duty and responsibility to decide all
matters in controversy between the parties, and, if necessary,
the full Commission must resolve matters in controversy even if
those matters were not addressed by the deputy commissioner.”
(citation and internal quotation marks omitted)).
Here, after hearing the parties on defendant’s motion to
dismiss, Deputy Commissioner Ledford dismissed plaintiff’s claim
with prejudice pursuant to Workers’ Compensation Rule 613, which
provides that “[u]pon proper notice and an opportunity to be
heard, any claim may be dismissed with or without prejudice by
the Industrial Commission on its own motion or by motion of any
party for failure to prosecute or to comply with these Rules or
any Order of the Commission.” 4 N.C.A.C. 10A.0613(a)(3) (2013)
(emphasis added). This Court has ruled that the Commission must
make the following relevant findings before dismissing a case
pursuant to Rule 613:
(1) whether the plaintiff acted in a manner
which deliberately or unreasonably delayed
the matter; (2) the amount of prejudice, if
any, to the defendant [caused by the
plaintiff’s failure to prosecute]; and (3)
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the reason, if one exists, that sanctions
short of dismissal would not suffice.
Lee v. Roses, 162 N.C. App. 129, 132-33, 590 S.E.2d 404, 407
(2004) (quoting Wilder v. Wilder, 146 N.C. App. 574, 578, 553
S.E.2d 425, 428 (2001)).
Deputy Commissioner Ledford found as fact that: (1)
“[p]laintiff has otherwise shown no reason for his failure to
seek reinstatement of indemnity compensation for almost nine
years, an unreasonable delay”; (2) “[t]his unreasonable delay
has hindered the Defendant’s ability to investigate the
matter[;] [t]he delay has prevented Defendant from providing
services otherwise intended to lessen Plaintiff’s period of
disability”; and (3) “[b]ased upon Plaintiff’s unreasonable
delay, and the resulting prejudice to Defendant, sanctions short
of dismissal of the claim will not suffice.” Thus, Deputy
Commissioner Ledford entered all of the findings of fact
required by the Lee Court before dismissing plaintiff’s claim
with prejudice pursuant to Rule 613.
However, the Full Commission’s opinion and award is devoid
of any factual findings or legal conclusions disposing of these
arguments. Although the Full Commission stated that it
“reviewed the prior Opinion and Award based upon the record of
the proceedings before Deputy Commissioner Ledford[,]” the Full
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Commission failed to address the basis of Deputy Commissioner
Ledford’s ruling in her prior opinion and award—dismissal under
Rule 613. The Full Commission also entered no findings or
conclusions as to the delay in the proceedings, the potential
prejudice to defendant that may have resulted from the delay, or
the reasons for the delay—all of which were included in Deputy
Commissioner Ledford’s findings of fact in support of her
ruling. As is made clear by the list of issues for
determination in Deputy Commissioner Ledford’s opinion and
award, these contentions were raised by defendant in its motion
to dismiss and were “in controversy” throughout these
proceedings. Payne, 172 N.C. App. at 501, 616 S.E.2d at 360.
Thus, because the Full Commission “has the duty and
responsibility to decide all matters in controversy between the
parties,” id., and because it failed to address the legal
contentions that formed the basis of Deputy Commissioner
Ledford’s opinion and award, I would remand this matter back to
the Full Commission for entry of appropriate findings and
conclusions determining that issue.
Conclusion
Because the Full Commission failed to enter findings of
fact or conclusions of law regarding defendant’s motion to
dismiss or Deputy Commissioner Ledford’s previous dismissal of
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plaintiff’s claim pursuant to Workers’ Compensation Rule 613, I
respectfully dissent from the majority’s holding that the Full
Commission’s opinion and award adequately resolved all matters
in controversy between the parties. Accordingly, I would remand
this matter to the Full Commission.
Poole v. University of North Carolina
Court: Court of Appeals of North Carolina
Date filed: 2014-07-15
Citations: 235 N.C. App. 135
Copy CitationsCombined Opinion