Smith v. North Carolina Wildlife Res. Comm.

Defendants appeal the imposition of the 10% penalty for late payment pursuant to N.C.G.S. § 97-18(e), which was based on findings that defendant received back the subject Form 21 agreement to pay compensation, as approved by the Commission, on April 21, 1992, and that as of May 7, 1992, no payment had been made. April 21, 1992 is the receipt date asserted by defendant, who states that payment was made on May 11, 1992. N.C.G.S. § 97-18(e) requires the penalty, barring events beyond the defendants control, when payment has not been made "within 14 days after it becomes due". Defendants correctly argue that payment was not "due" until "the day following expiration of time for appeal" pursuant to N.C.G.S. § 97-85, i.e., "15 days from the date when notice of the award shall have been given", meaning received by the appealing party. Hubbard v. Burlington Industries, 76 N.C. App. 313,332 S.E.2d 746 (1985). An agreement for compensation, when approved by the Commission, becomes an "award" as referenced in § 97-18. See G.S. § 97-82.

This allowance of extra time for appeal was written into the statute by an amendment to the 1929 Act adding the third and fourth sentences of subsection (c) and striking the phrase "without an award" after "Commission" in the first sentence of subsection (e). The distinction made in subsection (e) between those awards referenced in subsections (b) and (c) remains valid as to awards still subject to appeal (that is, within the 15 or 30 days of notice of filing), as opposed to those which are not. Thus, if a payment under an award for periodic payments that has not been timely appealed goes unpaid for more than 14 days after the installment due date without excuse, the penalty should be imposed. This murky section of the statute was rewritten, effective July 5, 1995, by the Workers' Compensation Reform Act of 1994.

Consequently, the subject Order of the Executive Secretary is VACATED. Each party shall bear its own costs.

S/ _____________________________ J. RANDOLPH WARD COMMISSIONER

CONCURRING:

S/ _____________________________ COY M. VANCE COMMISSIONER

S/ _____________________________ FORREST H. SHUFORD, II DEPUTY COMMISSIONER

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