Grove v. Hugger

Plaintiff appealed from an Order by Deputy Commissioner Wanda B. Taylor dismissing plaintiffs claim with prejudice on July 8, 1999. Plaintiffs claim was previously dismissed pursuant to an Order on June 12, 1998 for failure to appear at the June 2, 1998 hearing in Lincolnton. In that same order, Deputy Commissioner Taylor allowed plaintiff to refile her action within one year. By letter dated June 18, 1998, plaintiffs attorney gave notice of appeal from the Order of Dismissal. However, the Commission never sent a letter acknowledging the appeal to the Full Commission. In the June 18, 1998, letter and again in a note transmitted by fax to the Commission on June 22, 1998, plaintiff requested that the case be rescheduled for hearing in Lincolnton.

By letter dated July 2, 1999, defendants moved that plaintiffs claim be dismissed with prejudice for failure to prosecute her case. Deputy Commissioner Taylor by Order dated July 8, 1999, dismissed plaintiffs claim with prejudice. Plaintiff now appeals from that Order.

Industrial Commission Rule 613(3) provides in part that when a plaintiff has not requested a hearing within a year of the filing of an Order of Removal requested by plaintiff or necessitated by plaintiffs conduct and when a plaintiff has not pursued the claim, the opposing party may move the Industrial Commission to dismiss with prejudice for failure to prosecute. Plaintiff failed to file a Form 33 Request for Hearing within the one-year time allowed. However, plaintiff filed a timely appeal from the June 2, 1998 Order, pursuant to N.C. Gen. Stat. 97-85 and Industrial Commission Rule 703. The Commission failed to acknowledge the appeal and forward to plaintiff a Form 44 upon which the grounds for appeal must be stated, in accordance with the required procedures in Industrial Commission Rule 701(a). Plaintiff filed a timely appeal from the first Order of Dismissal; therefore, the Full Commission finds that it was improper for the Deputy Commissioner to dismiss plaintiffs claim with prejudice for failure to prosecute her claim.

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Accordingly, the Full Commission VACATES the July 8, 1999 Order dismissing plaintiffs claim with prejudice and REMANDS the case to the Deputy Commissioner docket for a hearing on the merits.

This the ______ day of February 2000.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

S/______________________ RENEE C. RIGGSBEE COMMISSIONER