NO. COA13-1348
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
JAMES J. LEWIS,
Employee, Plaintiff,
v. North Carolina Industrial
Commission
I.C. No. 265472
N.C. DEPARTMENT OF CORRECTION,
Employer, SELF-INSURED
(CORVEL CORPORATION,
Administrator),
Defendant.
Appeal by plaintiff-employee from Order of the Full
Commission entered 5 September 2013 by the North Carolina
Industrial Commission. Heard in the Court of Appeals 19 May
2014.
Lennon, Camak & Bertics, PLLC, by S. Neal Camak and Michael
W. Bertics, for plaintiff-appellant.
Roy Cooper, Attorney General, by Deborah M. Greene,
Assistant Attorney General, for defendant-appellee.
MARTIN, Chief Judge.
On 26 March 1996, plaintiff-employee James J. Lewis was
awarded temporary total disability benefits from 11 September
1994 until his return to work along with the cost of medical
treatment for posttraumatic stress disorder arising from his
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employment with defendant North Carolina Department of
Correction. Lewis v. N.C. Dep’t of Corr. (Lewis II), 167 N.C.
App. 560, 561, 606 S.E.2d 199, 200 (2004); see also Lewis v.
N.C. Dep’t of Corr. (Lewis I), 138 N.C. App. 526, 526–27, 531
S.E.2d 468, 469 (2000). The Full Commission entered an
additional Opinion and Award dated 10 July 2003, concluding that
plaintiff’s “original compensable injury, post-traumatic stress
disorder, exacerbated and aggravated [his] pre-existing
diabetes,” and awarded payment of medical expenses for treatment
for plaintiff’s diabetic condition and related periodontal
condition. Lewis II, 167 N.C. App. at 562–63, 606 S.E.2d at
201–02. Plaintiff continued to receive compensation for
temporary total disability pursuant to N.C.G.S. § 97-29.
On 5 February 2010, plaintiff filed a Form 33 to request a
hearing because he wished to receive permanent disability
benefits pursuant to N.C.G.S. § 97-31, as well as other
allowances. The deputy commissioner ruled, inter alia as
related to the matters presented by this appeal, that plaintiff
had reached maximum medical improvement on 19 November 2009 and
was entitled to receive permanent benefits pursuant to N.C.G.S.
§ 97-31, rather than temporary disability benefits under
N.C.G.S. § 97-29. As a result, plaintiff was awarded permanent
partial disability benefits in a lump sum based on the ratings
schedule contained in N.C.G.S. § 97-31, minus the amount of
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temporary total disability benefits defendant had paid plaintiff
since 19 November 2009, and an additional lump sum for permanent
partial disability ratings to body parts and organs not
specifically listed in N.C.G.S. § 97-31, pursuant to N.C.G.S.
§ 97-31(24).
Both parties appealed to the Full Commission which, by an
Opinion and Award dated 21 February 2012 and amended 23 May
2012, affirmed the deputy commissioner’s award, with the
exception that the award for non-listed body parts and organs
made pursuant to N.C.G.S. § 97-31(24) was reduced from $127,000
to $95,000. On 3 August 2012, plaintiff filed a motion to
require defendant to pay interest on the lump sum award. The
Full Commission denied the motion on 23 July 2013 and denied
plaintiff’s motion for reconsideration on 5 September 2013. In
denying the motion, the Full Commission reasoned that the
purpose of interest awarded pursuant to N.C.G.S. § 97-86.2 is to
compensate an individual for the loss of the use of money to
which he is entitled while an appeal is pending. During the
pendency of the appeals in the present case, defendant continued
to pay plaintiff weekly benefits under N.C.G.S. § 97-29. Thus,
the Full Commission reasoned that because an individual cannot
receive benefits under both N.C.G.S. § 97-29 and N.C.G.S. § 97-
31, none of plaintiff’s benefits were past due at the date of
the initial hearing or the final award, and no interest was due.
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Plaintiff appeals.
_________________________
On appeal, plaintiff argues the Full Commission should have
required defendant to pay interest on the benefits awarded to
plaintiff in the 23 May 2012 Opinion and Award from the date of
the initial hearing in this dispute. We agree.
Generally, when we review an opinion and award of the
Industrial Commission our review is limited to determining:
“(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.” Clark v. Wal-Mart, 360 N.C. 41, 43,
619 S.E.2d 491, 492 (2005). However, we review the Commission’s
conclusions of law de novo. McRae v. Toastmaster, Inc., 358
N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
In this appeal, we address only the issue of whether
defendant is required to pay plaintiff interest pursuant to
N.C.G.S. § 97-86.2 on the unpaid portion of plaintiff’s benefits
from the date of the initial hearing giving rise to this
dispute. N.C.G.S. § 97-86.2 states:
In any workers’ compensation case in which
an order is issued either granting or
denying an award to the employee and where
there is an appeal resulting in an ultimate
award to the employee, the insurance carrier
or employer shall pay interest on the final
award or unpaid portion thereof from the
date of the initial hearing on the claim,
until paid at the legal rate of interest
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provided in G.S. 24-1. If interest is paid
it shall not be a part of, or in any way
increase attorneys’ fees, but shall be paid
in full to the claimant.
N.C. Gen. Stat. § 97-86.2 (2013) (emphasis added).
In the past, when interpreting the word shall, our courts
have stated: “It is well established that ‘the word “shall” is
generally imperative or mandatory.’” Multiple Claimants v. N.C.
Dep't of Health & Human Servs., 361 N.C. 372, 378, 646 S.E.2d
356, 360 (2007) (quoting State v. Johnson, 298 N.C. 355, 361,
259 S.E.2d 752, 757 (1979)). As a result, if all of the
statutory requirements are satisfied then the Commission must
apply the statute and has no “discretion in making the required
determination.” Puckett v. Norandal USA, Inc., 211 N.C. App.
565, 573–74, 710 S.E.2d 356, 362 (2011). Furthermore, we have
stated that the goals of this statute are: “‘(a) [T]o
compensate a plaintiff for loss of the use value of a damage
award or compensation for delay in payment; (b) to prevent
unjust enrichment to a defendant for the use value of the money,
and (c) to promote settlement.’” Childress v. Trion, Inc., 125
N.C. App. 588, 592, 481 S.E.2d 697, 699 (alteration in original)
(quoting Powe v. Odell, 312 N.C. 410, 413, 322 S.E.2d 762, 764
(1984)), disc. review denied, 346 N.C. 276, 487 S.E.2d 541
(1997).
Based on our reading of the statute, plaintiff is entitled
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to interest on the award in the 23 May 2012 Opinion and Award
from the date of the initial hearing, 27 August 2010, until the
date that the award was paid in full for the following reasons.
First, the statute says that the “employer shall pay interest on
the . . . unpaid portion thereof from the date of the initial
hearing.” N.C. Gen. Stat. § 97-86.2 (emphasis added). As
discussed earlier, by its use of the word “shall” the statute
compels the Commission to award interest on the unpaid portion
of an award. Second, the purpose of interest is to compensate
an individual for their inability to use the awarded money while
an appeal is pending. In this case, plaintiff was unable to use
the full amount of his lump sum monetary award in the 6 April
2011 Opinion and Award because defendant did not pay the award
while the appeal was pending; defendant did have the benefit of
the use of the awarded money during the appeal. Therefore,
plaintiff is entitled to interest as compensation for his
inability to use the awarded money during his appeal, and
defendant is foreclosed from retaining the benefit of being able
to use the money during the appeal.
There is no issue of double recovery here. The Full
Commission reasoned that plaintiff was not entitled to interest
under N.C.G.S. § 97-86.2 because he “received weekly benefits
pursuant to N.C. Gen. Stat. § 97-29 throughout the pendency of
the litigation,” and it would be a double recovery for plaintiff
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to receive benefits under N.C.G.S. § 97-31 and N.C.G.S. § 97-29
for the same time period. The 23 May 2012 Opinion and Award,
however, prevented this result. The Opinion and Award made the
following awards:
1. Subject to a reasonable attorney’s fee
approved herein and the credit owed
defendant for the temporary total disability
compensation benefits paid to plaintiff
after November 19, 2009, defendant shall pay
permanent partial disability compensation to
plaintiff for permanent partial disability
ratings to body parts specifically listed in
N.C. Gen. Stat. Section 97-31 at the rate of
$293.64 per week for a total of 285.6 weeks.
This amount shall be paid in a lump sum.
2. Subject to a reasonable attorney’s fee
approved herein, defendant shall pay
equitable compensation in the total amount
of $95,000.00 for permanent injury to
important internal or external organs and
body parts pursuant to N.C. Gen. Stat.
Section 97-31(24). This amount shall be
paid in a lump sum, subject to the attorney
fee hereinafter approved.
(Emphasis added.) The Opinion and Award is clear that defendant
is entitled to a credit for the total amount of the temporary
total disability benefits paid to plaintiff under N.C.G.S. § 97-
29. Thus, a double recovery does not occur because the amount
paid to plaintiff under N.C.G.S. § 97-29 is deducted from the
balance of the permanent partial disability benefits awarded to
plaintiff under N.C.G.S. § 97-31. Plaintiff is not collecting
benefits under N.C.G.S. § 97-29 and N.C.G.S. § 97-31 at the same
time.
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In addition, the Full Commission erred in reasoning that
none of plaintiff’s award was past due. The Full Commission
reasoned that because none of plaintiff’s benefits were past due
at the time of the initial hearing in this matter or when the 23
May 2012 Opinion and Award was entered, plaintiff was not
entitled to interest. N.C.G.S. § 97-86.2 states that the
“employer shall pay interest on the final award or unpaid
portion thereof from the date of the initial hearing on the
claim.” N.C. Gen. Stat. § 97-86.2 (emphasis added). Thus, it
does not matter that defendant had made weekly payments to
plaintiff during the pendency of the appeal and that none of
those payments were past due because the full amount of the lump
sum award “became due” as of the date of the initial hearing.
Therefore, the statute entitles plaintiff to interest on the
unpaid portion of the award from the date of the initial hearing
in this matter.
For the reasons stated herein we reverse the 5 September
2013 Order of the Full Commission and remand this case to the
Full Commission for issuance of an order consistent with this
opinion.
Reversed and remanded.
Judges STEELMAN and DILLON concur.