Turner v. Ceco Corp. , 98 N.C. App. 366 ( 1990 )

WELLS, Judge.

An appeal from a decision of the Industrial Commission presents but two questions for review: (1) whether the evidence before the Commission supports its findings of fact and (2) whether the facts found sustain the Commission’s conclusions of law. McBride v. Peony Corp., 84 N.C. App. 221, 352 S.E.2d 236 (1987) (and cases cited therein). The parties stipulated to the facts in the proceedings held in the Commission, hence those facts are binding on appeal. See Long v. Morganton Dyeing & Finishing Co., 321 N.C. 82, 361 S.E.2d 575 (1987). Thus, the sole issue before us is whether the stipulated facts support the Commission’s conclusions of law.

Defendants bring forward five of their six assignments of error in a single argument challenging the denial of their petition for a lien in the monthly payments of $1,542.00 to be paid to plaintiff by Emerson Electric, the third party tortfeasor, pursuant to the settlement of that third party action. Defendants do not question the validity of either the settlement agreement resolving the third party action in Kentucky or their collateral agreement of waiver with plaintiff as reflected in the “Order Dismissing Settled.” Rather, they contend that the terms of the agreements drew a dividing line through their lien such that defendants waived any lien which they had prior to the date of the settlement, but expressly reserved any lien which might arise in future benefits received by plaintiff after the date of the settlement. Defendants argue that because plaintiff is to receive the monthly payments after the date of the settlement agreement, such payments are “future benefits,” and therefore they are entitled either to a lien therein equal to the amount of the monthly payments or to suspend or reduce their payment of compensation to plaintiff until the settlement proceeds are exhausted.

Plaintiff concedes that defendants did not waive any rights as to their statutory lien in future benefits. Plaintiff, however, vigorously contends that the lifetime monthly payments are proceeds of the third party settlement and that defendants therefore expressly waived their rights to assert any lien therein. We agree.

G.S. § 97-10.2 governs the respective rights and interests of an employee-beneficiary under the Workers’ Compensation Act, the employer, and the employer’s insurance carrier in cases where a common law action against a third party is brought. N.C. Gen. Stat. § 9740.2(a) (1985). That statute provides in pertinent part:

(h) In any proceeding against or settlement with the third party, every party to the claim for [workers’] compensation shall have a lien to the extent of his [statutory] interest . . . upon any payment made by the third party by reason of such injury or death, whether paid in settlement, in satisfaction of judgment, as consideration for covenant not to sue, or otherwise and such lien may be enforced against any person receiving such funds.

(j) ... in the event that a settlement has been agreed upon by the employee and the third party when said action is pending on a trial calendar and the pretrial conference with the judge has been held, either party may apply to the . . . presiding judge before whom the cause of action is pending, for determination as to the amount to be paid to each by such third party tort-feasor. If the matter is pending in the federal district court such determination may be made by the federal district court judge of that division.

An agreement, approved by the Commission and otherwise valid, between the parties to a workers’ compensation claim as to the distribution between them of proceeds recovered from a third party action is binding. See Swaney v. Construction Co., 5 N.C. App. 520, 169 S.E.2d 90 (1969); N.C. Gen. Stat. § 97-17.

The recital of consideration set forth in the settlement agreement between plaintiff and Emerson Electric states in pertinent part:

(a) The sum of $1,542.00 . . . shall be payable to Carlton Turner on the first day of each and every month, commencing October 1, 1988, and continuing for the life of Carlton Ray Turner.

The settlement agreement further states:

4. The Releasors agree and acknowledge payment of the sums specified in this . . . Agreement are accepted as a full and complete compromise of matters involving disputed issues[.] (Emphasis added.)

By the explicit terms of the agreement between plaintiff and Emerson Electric — to the making of which defendants have stipulated their consent — the lifetime monthly payments from Emerson Electric to plaintiff are plainly proceeds of the structured settlement reached in that third party action. The federal district court, after reviewing the settlement agreement and hearing extensive argument from all parties, including counsel for defendants, found that defendants had “agreed to waive any lien which they had as to the proceeds from this settlement and recovery.” (Emphasis added.) Defendants’ attempt to recharacterize the monthly payments as “future benefits” solely because these payments are to be received by plaintiff after the date of the settlement directly contradicts the express terms of both the settlement agreement and the “Order Dismissing Settled.”

We conclude that the facts fully support the Commission’s determination that defendants, by virtue of their waiver, are not entitled to a lien in the lifetime monthly payments due plaintiff from the third party action. The assignments of error subsumed under this issue are therefore overruled.

By their remaining assignment of error, defendants challenge that portion of the Commission’s order requiring them to pay the costs associated with the hearing of this petition. We have carefully reviewed the record, discern no basis therein to sustain this assignment of error, and therefore we determine it to be without merit.

For the reasons stated, the opinion and award entered by the Commission is

Affirmed.

Judges Eagles and Greene concur.