Dominguez v. Francisco Dominguez Masonry

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-447

No. COA21-641

Filed 5 July 2022

North Carolina Industrial Commission, I.C. No. 499636

MELCHOR ZAPATA DOMINGUEZ, Employee, Plaintiff,

v.

FRANCISCO DOMINGUEZ MASONRY, INC., Employer, BUILDERS MUTUAL
INSURANCE CO., Carrier, Defendants.

Appeal by defendants from opinion and award entered 10 June 2021 by the

North Carolina Industrial Commission. Heard in the Court of Appeals 5 April 2022.

The Bricio Law Firm, P.L.L.C., by Francisco J. Bricio, for plaintiff-appellee.

Lewis & Roberts, PLLC, by Jeffrey A. Misenheimer and Brian R. Taylor, for
defendants-appellants.

ZACHARY, Judge.

¶1 Francisco Dominguez Masonry, Inc., and Builders Mutual Insurance Co.

(“Builders Mutual” and collectively, “Defendants”) appeal from an Opinion and

Award of the North Carolina Industrial Commission granting Plaintiff Melchor

Zapata Dominguez’s claim for additional medical compensation for his right knee

conditions. After careful review, we affirm the Commission’s Opinion and Award.

Background

¶2 Plaintiff began his employment as a brick mason with Francisco Dominguez
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Masonry, Inc., in 2004. His job required him to regularly “bend his knees, squat, kneel

and do heavy lifting.” On 20 December 2004, Plaintiff began experiencing pain and

swelling in his right knee, and on 22 February 2005, he was diagnosed with two

occupational diseases of his right knee.

¶3 On 31 January 2005, Defendants began providing medical compensation to

Plaintiff. By Opinion and Award entered 14 May 2007, the Full Commission awarded

Plaintiff treatment for his right knee conditions and indemnity compensation for his

medical expenses. Defendants issued indemnity compensation for Plaintiff’s right

knee conditions through 13 December 2013 and medical compensation for Plaintiff’s

right knee conditions through 5 June 2015.

¶4 Upon determining that an indemnity check for $329.24 payable to Plaintiff and

dated 14 July 2011 remained uncashed and outstanding, Builders Mutual contacted

Plaintiff by letter dated 18 August 2017 to inquire whether “these funds [were] still

due.” Builders Mutual further informed Plaintiff that if he did not reply by 18 October

2017, the unclaimed funds would be escheated to the State of North Carolina. On or

about 28 August 2017, Plaintiff requested via the enclosed response form that

Builders Mutual issue a replacement check because he never received the original;

Builders Mutual issued a replacement check dated 19 September 2017.

¶5 On 12 February 2018, Plaintiff filed a Form 33 requesting a hearing on the

issue of additional medical compensation for his right knee conditions. Defendants
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denied treatment and moved to dismiss the claim, asserting that Plaintiff’s request

was time-barred by N.C. Gen. Stat. §§ 97-25.1 and 97-47. In an interlocutory Opinion

and Award entered 26 September 2018, the deputy commissioner denied Defendants’

motion to dismiss, concluding that the 19 September 2017 replacement check

constituted a payment pursuant to § 97-25.1, which rendered Plaintiff’s claim for

additional medical compensation timely.

¶6 On 17 December 2019, the deputy commissioner issued an Opinion and Award

ordering Defendants to authorize and pay for the ongoing medical treatment of

Plaintiff’s compensable right knee conditions. Defendants appealed to the Full

Commission, which affirmed the deputy commissioner’s decision by Opinion and

Award entered 10 June 2021. Defendants timely appealed from the Full

Commission’s Opinion and Award.

Discussion

¶7 On appeal, Defendants argue that the Full Commission erred by concluding

that Plaintiff’s claim for additional medical compensation was not time-barred

pursuant to N.C. Gen. Stat. § 97-25.1 (2021).

I. Standard of Review

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

established by the General Assembly and by numerous decisions of this Court.”

Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582,
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584 (2008), reh’g denied, 363 N.C. 260, 676 S.E.2d 472 (2009). “[O]n 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.

¶9 The Commission’s findings of fact “are conclusive upon appeal when supported

by competent evidence, even when there is evidence to support a finding to the

contrary. . . . Where no exception is taken to a finding of fact, the finding is presumed

to be supported by competent evidence and is binding on appeal.” Workman v.

Rutherford Elec. Membership Corp., 170 N.C. App. 481, 485–86, 613 S.E.2d 243, 247

(2005) (citation omitted). The Commission’s conclusions of law, however, are reviewed

de novo. Walker v. K&W Cafeterias, 375 N.C. 254, 258, 846 S.E.2d 679, 682 (2020).

II. Analysis

¶ 10 Defendants maintain that the Full Commission erred by determining that N.C.

Gen. Stat. § 97-25.1 did not bar Plaintiff’s claim for additional medical compensation,

in that “the replacement check d[id] not constitute payment of compensation”

pursuant to N.C. Gen. Stat. § 97-25.1, and therefore its issuance “did not ‘restart’ the

limitations period[.]” We disagree.

¶ 11 Section 97-25.1 provides, in relevant part:

The right to medical compensation shall terminate two
years after the employer’s last payment of medical or
indemnity compensation unless, prior to the expiration of
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this period, either: (i) the employee files with the
Commission an application for additional medical
compensation which is thereafter approved by the
Commission, or (ii) the Commission on its own motion
orders additional medical compensation.

N.C. Gen. Stat. § 97-25.1 (emphasis added).

¶ 12 In the present case, the Commission made the following unchallenged findings

of fact:

4. The most recent payment that [Builders Mutual] has
made for medical treatment for Plaintiff’s compensable
right knee conditions was on June 5, 2015. Defendants also
paid weekly temporary total disability (“TTD”)
compensation to Plaintiff in this claim, beginning with his
right knee surgery on February 1, 2010.

....

6. The latest period for which Defendants paid Plaintiff
TTD compensation was for November 28, 2013 through
December 4, 2013, via a check dated December 3, 2013.

7. On August 18, 2017, [Builders Mutual] sent Plaintiff a
letter stating that [Builders Mutual]’s review of its records
revealed that a TTD check dated July 14, 2011 had never
been cashed and was still outstanding. The letter asked
Plaintiff to review his records and determine “if these funds
are still due.” On or about August 28, 2017, Plaintiff
returned the letter to [Builders Mutual], checking the box
for “The original check was never received; please reissue.”

8. On September 19, 2017, [Builders Mutual] voided the
July 14, 2011 TTD check and issued a new check to
Plaintiff in the amount of $329.24, covering TTD
compensation for the period from July 11 through July 17,
2011.
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....

11. On February 12, 2018, Plaintiff filed the instant Form
33 Request that Claim Be Assigned for Hearing, seeking
additional medical treatment for his right knee conditions.

¶ 13 Plaintiff contends that Defendants’ last payment of medical or indemnity

compensation was 19 September 2017—less than two years before Plaintiff submitted

his 12 February 2018 claim for additional medical compensation—and that his claim

was thus timely. By contrast, Defendants maintain that the last payment of medical

or indemnity compensation was 5 June 2015, and that Plaintiff’s 12 February 2018

application for additional medical compensation was therefore time-barred, in that

the two-year limitations period ended in 2017. Accordingly, the question before us is

whether a corrective payment constitutes a “last payment” for purposes of the N.C.

Gen. Stat. § 97-25.1 limitations period.

¶ 14 When appellate courts engage in statutory interpretation, our primary task is

“to ensure that the legislative intent is accomplished. The best indicia of legislative

purpose are the language of the statute, the spirit of the act, and what the act seeks

to accomplish.” Radzisz v. Harley Davidson of Metrolina, Inc., 346 N.C. 84, 88–89,

484 S.E.2d 566, 569 (1997) (citations and internal quotation marks omitted). “[T]he

workers’ compensation statutes should be liberally construed whenever possible to

avoid denying benefits based on narrow interpretations of its provisions . . . .”
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Robertson v. Hagood Homes, Inc., 160 N.C. App. 137, 142, 584 S.E.2d 871, 874 (2003)

(citation and internal quotation marks omitted).

¶ 15 “Statutory interpretation begins by examining the plain and ordinary

meanings of words in the statute. When the language of a statute is clear and

unambiguous, there is no room for judicial construction, and the courts must give it

its plain and definite meaning.” Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 130, 797

S.E.2d 354, 356 (2017) (citations and internal quotation marks omitted). An appellate

court “should avoid adding a provision to a statute that has been omitted, which it

believes ought to have been embraced[.]” Robertson, 160 N.C. App. at 142, 584 S.E.2d

at 874 (citation and internal quotation marks omitted).

¶ 16 Here, using the “plain and ordinary meaning” of the statute’s terms, Key Risk

Ins. Co., 252 N.C. App. at 130, 797 S.E.2d at 356, Plaintiff’s right to additional

medical compensation had not yet terminated when he filed his Form 33. Plaintiff

filed his claim for additional medical compensation on 12 February 2018, less than a

year after he received the last payment of compensation from Defendants, via check

dated 19 September 2017. In that N.C. Gen. Stat. § 97-25.1 provides that an

employee’s “right to medical compensation shall terminate two years after the

employer’s last payment of medical or indemnity compensation” and Plaintiff sought

compensation less than a year after Defendants’ last indemnity payment, the statute
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did not bar Plaintiff from seeking additional medical compensation. N.C. Gen. Stat.

§ 97-25.1.

¶ 17 Moreover, while “appellate courts may not expand upon the ordinary meaning

of the terms used by the legislature” in a statute, “the workers’ compensation statutes

should be liberally construed whenever possible to avoid denying benefits based on

narrow interpretations of its provisions[.]” Robertson, 160 N.C. App. at 142, 584

S.E.2d at 874 (citation and internal quotation marks omitted). To interpret “last

payment” as including only timely payments, as Defendants contend, would in effect

“add[ ] a provision to a statute that has been omitted[.]” Id. (citation and internal

quotation marks omitted). Furthermore, such an interpretation runs contrary to the

plain meaning of the statute. Thus, construing N.C. Gen. Stat. § 97-25.1 liberally, the

two-year limitation period begins when an employer provides (1) indemnity or

medical compensation (2) for the last time. N.C. Gen. Stat. § 97-25.1. Accordingly,

Plaintiff had up to two years from Defendants’ last indemnity payment on 19

September 2017 to seek additional medical compensation.

¶ 18 The parties cite no North Carolina case that directly addresses the issue of

whether an employer’s subsequent corrective payment qualifies as an “employer’s

last payment” for the purposes of N.C. Gen. Stat. § 97-25.1. However, this Court

touched on this issue in dicta in Lewis v. Transit Management of Charlotte, 250 N.C.

App. 619, 792 S.E.2d 890 (2016), petitions for disc. review withdrawn, 369 N.C. 750,
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799 S.E.2d 623 (2017). As our dissenting colleague acknowledges, the facts of Lewis

differ from those of the present case. In Lewis, the plaintiff argued that the statute of

limitations would begin to run upon his hypothetical future receipt of compensation

from the defendant. 250 N.C. App. at 627, 792 S.E.2d at 896. The Lewis Court

disagreed, concluding that the defendant’s actual last payment dictated when the

statute of limitations began to run. Id. The Court also noted that N.C. Gen. Stat. § 97-

25.1 provides no “distinction between medical and indemnity payments in the normal

course of a workers’ compensation case and subsequent corrective payments[,]” and

left the matter of whether a subsequent corrective payment constitutes a “last

payment” for purposes of the limitations period for the legislature to address. Id. at

628, 792 S.E.2d at 896.

¶ 19 However, in the six years following Lewis’s invitation for clarification of this

issue, the General Assembly has neither modified the statutory language, nor

otherwise addressed the effect of a subsequent corrective payment on the two-year

limitations period. See N.C. Gen. Stat. § 97-25.1. It follows, then, that the General

Assembly is satisfied with the existing language of § 97-25.1, which provides no

“distinction between medical and indemnity payments in the normal course of a

workers’ compensation case and subsequent corrective payments[.]” Lewis, 250 N.C.

App. at 628, 792 S.E.2d at 896. Absent evidence to the contrary, we presume this is

consonant with the intent of the General Assembly. As it currently stands, N.C. Gen.
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Stat. § 97-25.1 plainly requires that the two-year limitations period begin upon the

actual last payment by the employer—regardless of whether it was timely submitted

or sent as a subsequent corrective payment. N.C. Gen. Stat. § 97-25.1.

¶ 20 Finally, to conclude that Defendants’ last indemnity payment to Plaintiff did

not constitute a “last payment” pursuant to N.C. Gen. Stat. § 97-25.1 would be

tantamount to “adding a provision to a statute that has been omitted” by the General

Assembly. Robertson, 160 N.C. App. at 142, 584 S.E.2d at 874 (citation and internal

quotation marks omitted). Indeed, to construe “last payment” as the final payment of

medical or indemnity compensation—except when the payment is corrective—would

create a statutory exception that the General Assembly declined to provide.

Paradoxically, this interpretation presents a textbook example of the very judicial

“usurpation” of legislative prerogative feared by our dissenting colleague. Dissent

¶ 38. And as our dissenting colleague aptly notes: “It is for the legislature, and not

the courts, to establish statutes of limitations, statutes of repose, and any exceptions

to those rules.” Id. (citation omitted).

Conclusion

¶ 21 “[T]he language of [N.C. Gen. Stat. § 97-25.1] is clear and unambiguous,” and

must be given “its plain and definite meaning.” Key Risk Ins. Co., 252 N.C. App. at

130, 797 S.E.2d at 356 (citation omitted). Consequently, because Defendants’ reissued

indemnity check constitutes the “last payment of . . . indemnity compensation[,]” N.C.
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Gen. Stat. § 97-25.1, the Full Commission did not err by concluding that Plaintiff’s

claim was not time-barred by N.C. Gen. Stat. § 97-25.1, or by granting Plaintiff’s

claim for additional medical compensation for his right knee conditions.

¶ 22 For the foregoing reasons, the Full Commission’s Opinion and Award is

affirmed.

AFFIRMED.

Chief Judge STROUD concurs.

Judge TYSON dissents by separate opinion.
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TYSON, Judge, dissenting.

¶ 23 The majority’s opinion fails to apply the intent and plain language of N.C. Gen.

Stat. § 97-25.1 (2021). Their improper and deferential standard of review and

overreach is contrary to our rules of statutory construction, binding precedents, and

the stated purpose of the Workers’ Compensation Act. I vote to reverse the

Commission’s order and to remand with instructions to enter an order dismissing

Plaintiff’s claim. I respectfully dissent.

I. Standard of Review

¶ 24 “[W]hen reviewing findings of fact by the Commission on which the scope of its

jurisdiction depends, we apply a de novo standard of review.” Cunningham v.

Goodyear Tire & Rubber Co., __ N.C. __, __, __ S.E.2d __, __, 2022-NCSC-46, ¶ 19

(2022) (citation omitted).

¶ 25 The majority opinion’s deference to the unsupported conclusions of law by the

Commission is erroneous. Our Supreme Court has long held:

When a defendant-employer challenges the jurisdiction of
the Industrial Commission, the findings of fact made by the
Commission, on which its jurisdiction is dependent, are not
conclusive on the [reviewing court], but the [reviewing
court] has the power, and it is its duty, on appeal, to
consider all the evidence in the record, and to make
therefrom independent findings of jurisdictional facts. This
is necessary to prevent the court from being forced into an
act of usurpation, and compelled to give a void judgment.

Richards v. Nationwide Homes, 263 N.C. 295, 303-04, 139 S.E.2d 645, 651 (1965)

(citations and internal quotation marks omitted) (emphasis supplied).
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II. N.C. Gen. Stat. § 97-25.1

¶ 26 Defendants argue the previously paid and re-issued 19 September 2017 check

constituted payment pursuant to N.C. Gen. Stat. § 97-25.1. They assert the check

was not new compensation, but rather to correct a prior timely issued, but uncashed,

payment.

¶ 27 When interpreting the parties’ arguments, we must first determine the

meaning of the “last payment of medical or indemnity compensation” in N.C. Gen.

Stat. § 97-25.1. In reviewing the statutory definition and application of “last

payment” several well-established principles of statutory construction apply.

A. Canons of Statutory Construction

¶ 28 North Carolina Appellate Courts have previously articulated standards and

precedents to guide our analysis. “The principal goal of statutory construction is to

accomplish the legislative intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d

513, 517 (2001) (citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284,

290 (1998)). “The best indicia of that intent are the [plain] language of the statute . .

. , the spirit of the act and what the act seeks to accomplish.” Coastal Ready-Mix

Concrete Co. v. Bd. of Comm’rs, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)

(citations omitted).

¶ 29 “When construing legislative provisions, this Court looks first to the plain

meaning of the words of the statute itself[.]” State v. Ward, 364 N.C. 157, 160, 694
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S.E.2d 729, 731 (2010). Illogical and strained “[i]nterpretations that would create a

conflict between two or more statutes are to be avoided, and statutes should be

reconciled with each other whenever possible.” Taylor v. Robinson, 131 N.C. App.

337, 338, 508 S.E.2d 289, 291 (1998) (internal quotation marks, citations, and ellipses

omitted).

¶ 30 Further, “where a literal interpretation of the language of a statute will lead

to absurd results, or contravene the manifest purpose of the Legislature, as otherwise

expressed, the reason and purpose of the law shall control.” State v. Beck, 359 N.C.

611, 614, 614 S.E.2d 274, 277 (2005) (quoting Mazda Motors of Am., Inc. v. Sw.

Motors, Inc., 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979)).

B. “Last Payment”

¶ 31 Plaintiff argues the plain meaning of “last payment” in the statute constitutes

the actual date of his receipt of last payment. Defendants argue this assertion is

contrary to the clear intent of N.C. Gen. Stat. § 97-25.1, and cite Lewis v. Transit

Mgmt. of Charlotte, 250 N.C. App. 619, 792 S.E.2d 890 (2016) and Harrison v. Gemma

Power Sys., LLC, 234 N.C. App. 664, 763 S.E.2d 17, 2014 WL 2993853 (2014)

(unpublished).

¶ 32 While not binding precedent, this Court can consider Harrison, an unpublished

opinion as persuasive authority. Zurosky v. Shaffer, 236 N.C. App. 219, 234, 763

S.E.2d 755, 764 (2014) (“[A]n unpublished opinion may be used as persuasive
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authority at the appellate level if the case is properly submitted and discussed and

there is no published case on point.”).

¶ 33 In Harrison, this Court examined the issue of whether “the two-year statute of

limitations period found in N.C. Gen. Stat. § 97-25.1 has not yet begun and will not

begin until [the p]laintiff receives a payment from [the d]efendant for indemnity

benefits.” Harrison, 2014 WL 2993853, at *4. This Court unanimously rejected this

argument, holding:

First, [the p]laintiff’s argument ignores the plain language
of the statute. . . . In context, the word “last” does not refer
to a hypothetical future payment that [the p]laintiff may
be entitled to receive after presenting a claim to the
Industrial Commission. On its face, the “last” payment
refers to the most recent payment of medical or indemnity
benefits that has actually been paid. Second, [the
p]laintiff’s argument assumes the certainty of a future
indemnity payment before the right to such payment has
been decided by the Industrial Commission. Third,
accepting Plaintiff’s interpretation of the statute would
allow claimants seeking additional medical compensation
to obviate the statute of limitations in any case by asserting
a valid claim for indemnity benefits alongside a claim for
additional medical compensation. Such an expansive
interpretation ignores the clear intent of our legislature to
limit claims for additional medical compensation to a
specified time period.

Id. (citation omitted) (emphasis supplied).

¶ 34 In Lewis, a binding precedent, our Court found the analysis in Harrison was

persuasive and adopted it. Lewis, 250 N.C. App. at 626, 792 S.E.2d at 895. The
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plaintiffs in Lewis brought claims for underpayment of temporary total disability

during the period they were temporarily totally disabled and also for additional

medical treatment. Id. at 622, 792 S.E.2d at 893.

¶ 35 This Court held while, the plaintiff was owed a payment of $714.90, this claim

was time barred by the two-year statute of limitations in N.C. Gen. Stat. § 97-25.1.

Id. at 628, 792 S.E.2d at 896. Unlike the facts here, the payment at issue in Lewis

had not been made. Id. This Court raised the issue of “whether a payment to correct

an earlier error in medical or indemnity payments to make an employee whole

restarts the limitations period in N.C. Gen. Stat. § 97-25.1.” Id. at 627, 792 S.E.2d at

896.

¶ 36 Applying Harrison, this Court in Lewis portrayed the obvious and obnoxious

consequences of Plaintiff’s argument, but found it unnecessary to anticipate and

resolve this issue because the “last payment” at issue there had not been previously

and actually paid:

We further agree with the Commission that plaintiff’s
interpretation could result in increased litigation in cases
where honest miscalculations resulting in indemnity
benefits could lead to a reset of the two-year limitations
period and additional liability in cases where the last
medical or indemnity payment was otherwise made years
earlier. Yet, there is no such distinction between medical
and indemnity payments in the normal course of a workers’
compensation case and subsequent corrective payments in
the statute. Since we need not decide the issue in the
present case because the corrective payment had not yet
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been paid to restart the limitations period, we simply note
that N.C. Gen. Stat. § 97-25.1 is not entirely clear as to how
such corrective payments are to be treated and leave the
matter for the legislature to address.

Id. at 628, 792 S.E.2d at 896 (emphasis supplied).

¶ 37 Unlike the facts in Lewis, the sole issue before this Court is whether a

subsequent remedial or reissued payment previously made restarts the statute of

limitations in N.C. Gen. Stat. § 97-25.1. Plaintiff does not challenge the evidence the

prior payment was actualy made by Defendants. Our Supreme Court has stated the

legislative intent and purpose of adopting the Workers Compensation Act, “is not only

to provide a swift and certain remedy to an injured workman, but also to insure a

limited and determinate liability for employers.” Barnhardt v. Yellow Cab Co., 266

N.C. 419, 427, 146 S.E.2d 479, 484 (1966) (citation omitted) (emphasis supplied).

¶ 38 The majority’s opinion criticizes the General Assembly for “not answering a

call” in a prior opinion for an amendment to N.C. Gen. Stat. § 97-25.1. This assertion

is a usurpation and wholly without merit:

[I]t is for the legislature, and not the courts, to establish
statutes of limitations, statutes of repose, and any
exceptions to those rules. It is not the role of the courts to
create exceptions to the laws established by the legislature
where the intent of the legislature is made manifestly clear
on the face of the statute.

Goodman v. Holmes & McLaurin Attorneys at Law, 192 N.C. App. 467, 475-76, 665

S.E.2d 526, 532 (2008) (citation omitted). Contrary to Goodman, the majority’s
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opinion purports to add a judicially-created, but unlawful, exception to the clear

legislatively established statute of limitations to now revive a claim originating

seventeen years ago in 2005. As written, the majority’s opinion’s clear effect is to

obliterate any statute of limitations delineated in N.C. Gen. Stat. § 97-25.1 by a

tendered and undisputed prior payment. This purported attempt is outside of this

Court’s authority to modify or impose. Goodman, 192 N.C. App. at 475, 665 S.E.2d

at 532. (“[I]t is for the legislature, and not the courts, to establish statutes of

limitations, statutes of repose, and any exceptions to those rules.”) (emphasis

supplied). This burden rests upon the plaintiff to assert a timely claim.

III. Conclusion

¶ 39 The re-issuance of previously paid funds to remedy those not cashed by

Plaintiff during the period of disability does not toll or restart the statute of

limitations in N.C. Gen. Stat. § 97-25.1. Any notion otherwise is contrary to the

stated intent and purpose of the Workers Compensation Act. See N.C. Gen. Stat. §97-

25.

¶ 40 The majority’s opinion also ignores the purpose of the Workers Compensation

Act “to insure a limited and determinate liability for employers.” Barnhardt, 266

N.C. at 427, 146 S.E.2d at 484. The majority’s opinion allows a Plaintiff to re-open a

seventeen-year-old claim, after undisputed evidence shows Defendants audited and

merely re-issued a previously paid check. The order of the Full Commission is
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properly reversed, and the cause remanded with instructions for the Commission to

enter an order dismissing Plaintiff’s claim. I respectfully dissent.