Gore v. Southwest Airlines Company

*********** Upon review of the competent evidence of record, with reference to the errors assigned, and the briefs and oral arguments of the parties, the Full Commission finds that good grounds do not exist to receive further evidence, to rehear the parties or their representatives or to reconsider the decision of the Deputy Commissioner. Therefore, the Full Commission enters the following Order. *********** On February 13, 2008, the Executive Secretary issued an Administrative Order consolidating North Carolina Industrial Commission File Number 025121 and North Carolina Industrial Commission File Number 216175 for hearing purposes. The Full Commission, in its discretion, is vacating herein the prior consolidation order and determining each claim separately.

With respect to Plaintiff's claim under I.C. File Number 025121, on July 12, 2002, Deputy Commissioner Crystal Redding Stanback entered an Order of Dismissal with Prejudice for failure of Plaintiff to comply with certain discovery orders. Thereafter, Plaintiff appealed this decision to the Full Commission. On April 3, 2003, the Full Commission affirmed the decision of Deputy Commissioner Stanback and entered an Order of Dismissal with Prejudice of Plaintiff's claim. Plaintiff appealed to the North Carolina Court of Appeals from the April 3, 2003, Order of Dismissal with Prejudice by the Full Commission. On February 5, 2004, the Court of Appeals dismissed Plaintiff's appeal for failure to comply with the North Carolina Rules of Appellate Procedure. The April 3, 2003, decision of the Full Commission subsequently became a final and binding decision.

On December 20, 2007, Plaintiff filed a Form 33 requesting a hearing on both North Carolina Industrial Commission File Number 025121 and North Carolina Industrial Commission File Number 216175, and on February 13, 2008, the Executive Secretary issued an Administrative Order consolidating these claims for hearing purposes. On August 14, 2008, Deputy Commissioner Myra L. Griffin entered an Order quashing Plaintiff's hearing subpoenas and limiting the hearing scheduled for August 19, 2008, to the jurisdictional issue of whether both of Plaintiff's claims should be dismissed with prejudice. On August 20, 2008, Deputy Commissioner Griffin filed two (2) separate Orders, dismissing Plaintiff's claims with prejudice. Thereafter, Plaintiff appealed Deputy Commissioner Griffin's Orders, and sought to re-open the record and to introduce additional evidence.

The Full Commission finds and concludes that any rights Plaintiff may have had under the North Carolina Workers' Compensation Act to re-open her claim, or to claim further benefits under I.C. File Number 025121 expired prior to Plaintiff's filing of her Form 33 request for hearing on December 20, 2007. Therefore, Plaintiff's attempt to re-open this claim must be denied.

IT IS THEREFORE ORDERED that the order of the Executive Secretary consolidating this claim (I.C. File Number 025121) with I.C. File Number 216175 for hearing purposes is vacated and Plaintiff's claim under I.C. File Number 216175 will be determined by separate order.

IT IS FURTHER ORDERED that Plaintiff's attempt to re-open her claim herein in I.C. File Number 025121 is DENIED. The April 3, 2003 Order of the Full Commission affirming the Order of Dismissal by Deputy Commissioner Stanback remains in full force and effect.

IT IS FURTHER ORDERED that Defendant's Motion for attorney fees under N.C. Gen. Stat. § 97-88.1 is DENIED as the pro se plaintiff's conduct does not rise to the level of stubborn, unfounded litigiousness.

No costs are assessed.

This the ___ day of July 2009.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/___________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

S/___________________ CHRISTOPHER SCOTT COMMISSIONER