DocketNumber: I.C. NO. 680073
Judges: <center> ORDER for the Full Commission by BERNADINE S. BALLANCE, Commissioner, N.C. Industrial Commission.</center>
Filed Date: 10/28/2002
Status: Precedential
Modified Date: 7/6/2016
2. Plaintiff contends she suffered a compensable injury by accident in the course of her employment with defendant-employer on 3 September 1996 when she picked up an assembled piece of furniture weighing approximately 45-50 pounds and twisted her back, sustaining injuries to her left hip, left leg, and lower left side of her back. Plaintiff's claim was not accepted as compensable by defendants.
3. By letter dated 17 July 1997, Attorney Elva Perez Trevino notified defendants that she had been hired to represent plaintiff in her workers' compensation claim.
4. On or about 26 September 1997, plaintiff filed a Form 33 to request a hearing in the matter. On 24 October 1997, plaintiff filed a Form 18 with the Commission. Defendants hired counsel who filed a Form 33R, and the case was ordered into mediation.
5. On 19 December 1997, Deputy Commissioner/Mediation Coordinator John C. Schafer appointed a mediator in the case and ordered that mediation be completed by 31 March 1998. However, by Order dated 7 April 1998, Mediation Coordinator Schafer excused the case from mediation on the grounds that mediation was not "prudent in this matter."
6. This case was thereupon set for hearing before Deputy Commissioner Morgan S. Chapman with the hearing scheduled for 23 June 1998 in Whiteville. By letter dated 12 June 1998, counsel for defendants wrote plaintiff's counsel indicating that he had not heard from her regarding the pretrial agreement, and therefore she should make changes and additions on the proposed pretrial agreement that he was forwarding to her.
7. When the case came on for hearing before Deputy Commissioner Chapman, no pretrial agreement had been filed. By Order filed 1 July 1998, Deputy Commissioner Chapman removed the case from the hearing docket on the grounds that a pretrial agreement had not yet been finalized and because the case had not yet been mediated. The removal order specifically removed the case from the hearing docket, treated the request for hearing as if it were withdrawn and included language that stated that the case should not be reinstated on the hearing docket until a signed pretrial agreement had been submitted by plaintiff and referred the case to mediation. Deputy Commissioner Chapman did not specifically retain control over the case upon completion of mediation. The case was simply coded 140, meaning removal. Thereafter, an order allowing the parties through 30 October 1998 to mediate the case was filed by Mediation Coordinator Schafer.
8. At least one mediated settlement conference was scheduled that did not take place due to an illness suffered by the appointed mediator. A mediated settlement conference which occurred on 6 April 1999, ended in an impasse. Following usual Industrial Commission procedure, the case should have thereafter automatically returned to "ready for hearing" status, where it would have been eligible to be placed back on the hearing docket before any deputy commissioner. The case was not reset for hearing on a hearing calendar. Therefore, plaintiff would not have been placed on notice that the pretrial agreement was due within a specific period of time or which deputy commissioner would be hearing the case after mediation was completed. Plaintiff did not file a new Form 33 request for hearing.
9. On 12 April 1999, defendants filed a motion with the Commission requesting an Order for Production of plaintiff's Social Security Administration records. On 19 August 1999, Executive Secretary Tracey H. Weaver issued an Order requiring plaintiff to comply with defendants' request within 30 days. On 23 August 1999, plaintiff forwarded a letter to defendants and to the Commission identifying the counsel representing her before the Social Security Administration, and recommending that plaintiff's counsel be contacted directly in regards to obtaining her Social Security records. Plaintiff also forwarded a letter to her counsel in the Social Security case requesting that he provide a complete copy of her Social Security claim file to defendants.
10. On 6 June 2000, defendants filed a Motion to Dismiss plaintiff's claim with prejudice on the grounds that plaintiff had not taken affirmative action in the case for over a year, and that it had been almost two years since the date the claim was originally docketed for hearing by Deputy Commissioner Chapman and as yet no pretrial agreement had been drafted by plaintiff. Further, defendants asserted that it was plaintiff's conduct in her failure to draft a pretrial agreement as ordered that necessitated the removal of the case from the hearing docket. The Industrial Commission file does not contain a response by plaintiff to defendants' motion; however, the Full Commission notes that plaintiff had taken affirmative action in her case as late as 23 August 1999 in her response and efforts to comply with defendants' request for Social Security records.
11. Deputy Commissioner Chapman entered an Order dismissing plaintiff's claim with prejudice on 18 July 2000. The Order indicates that defendants' motion was made for "good cause" and "based upon reasonable grounds." No specific findings of fact were made by Deputy Commissioner Chapman in the Order.
12. Plaintiff did not appeal the Order dismissing her claim to the Full Commission, nor was a motion for reconsideration filed by plaintiff. There is no indication in the Industrial Commission file of the status of plaintiff's representation by Attorney Trevino during the period the motion for dismissal was pending or thereafter. The record does not contain a Notice of Withdrawal by Attorney Trevino as counsel of record, although it is clear that plaintiff subsequently retained another counsel.
13. On 2 February 2001, plaintiff's current counsel was retained and filed a notice of appearance with the Commission. On or about 28 February 2001, plaintiff filed a Form 33 Request for Hearing seeking to set aside Deputy Commissioner Chapman's Order dismissing her claim pursuant to N.C.R. Civ. Pro. 60(b). The case came on for hearing before Deputy Commissioner Pfeiffer on 22 August 2001, with the sole issue being whether an Order of a Deputy Commissioner dismissing a claim may be set aside by another Deputy Commissioner thereby allowing an evidentiary hearing on the substantive matters to be held. By Opinion and Award filed on 22 January 2002, Deputy Commissioner Pfeiffer refused to set aside Deputy Commissioner Chapman's dismissal of plaintiff's claim with prejudice.
2. N.C.R. Civ. Pro. 60(b) states in pertinent part, "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect. . . ." The Rule also requires that "the motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken."
3. On 18 July 2000, Deputy Commissioner Chapman issued the Order dismissing plaintiff's claim based upon the mistaken belief that plaintiff had not taken affirmative action in her claim for more than 13 months prior to the date of the Order, when in fact plaintiff had continued to pursue her case well beyond the time contended in defendants' motion. Because the Order of dismissal was issued upon a mistake of fact, Rule 60(b) allows plaintiff up to a year after the entry of the Order in which to move for relief. In this case, plaintiff's Form 33 seeking to set aside the Order of dismissal was filed approximately seven months after the Order of dismissal was filed, and within four weeks of obtaining new counsel. Therefore, plaintiff's motion was timely filed under the Rules of Civil Procedure. Further, given the short period of time since plaintiff had acquired new counsel, the Full Commission finds plaintiff's failure to file the motion earlier to be excusable under the specific facts of this case.
4. Assuming that Deputy Commissioner Chapman had reasonable grounds upon which to base an Order dismissing plaintiff's claim, the Deputy Commissioner was required by the Act to do so pursuant to Rule 802 of the Workers' Compensation Rules. Rule 802 permits the Industrial Commission to subject the violator of the Workers' Compensation Rules to any of the sanctions outlined in Rule 37 of the North Carolina Rules of Civil Procedure. The Full Commission notes that an Order dismissing a claim pursuant to N.C. Gen. Stat. §
5. Further, the Full Commission recognizes that the Workers' Compensation Act is to be construed liberally and benefits are not to be denied on technical, narrow or strict interpretations of its provisions.See Harrell v. Harriet Henderson Yarns,
6. Lastly, the Full Commission recognizes that it is both the duty and the responsibility of the Full Commission to decide all matters in controversy between the parties. Tucker v. Workable Company,
2. No costs are assessed at this time.
This the ___ day of September, 2002.
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
S/____________ BUCK LATTIMORE CHAIRMAN