Soder v. Corvel Corporation

*********** This matter is before the Full Commission upon Plaintiff's Motion for Reconsideration of a January 8, 2009 Order dismissing Plaintiff's appeal. On September 8, 2008, Plaintiff filed an appeal of a Deputy Commissioner's Opinion and Award. The transcript of this matter was mailed to the parties on or about November 3, 2008, making Plaintiff's Form 44 and Appellant Brief due on or about December 1, 2008. On December 15, 2008, the Industrial Commission issued a hearing notice placing this matter on for oral argument before the Full Commission on February 9, 2009. Plaintiff has not disputed his timely receipt of the transcript or the hearing notice.

On December 19, 2008, 19 days after Plaintiff's Form 44 was due, Defendants filed a Motion to Dismiss Plaintiff's Appeal under Rule 702. Ten days later, on December 29, 2008, Plaintiff sent a Response to said Motion, filed a Motion to Continue the scheduled Full Commission oral arguments, and filed a Form 44 and brief to the Full Commission. After a review of Defendants' Motion to Dismiss, Plaintiff's Response, Plaintiff's Motion for Reconsideration, and all other filings by the parties, the Commission finds that Plaintiff has not shown good grounds to reconsider the January 8, 2009 Order dismissing Plaintiff's appeal.

Plaintiff failed to timely file a Form 44 as required under Rule 701. Plaintiff also failed to timely file a brief or any other documentation identifying the particular grounds for his appeal. Furthermore, Plaintiff failed to provide a reasonable excuse for his failure to timely file a Form 44 or any other documentation setting forth with particularity his grounds for appeal. Therefore, due to Plaintiff's failure to timely file documentation identifying the particular grounds for his appeal and his failure to provide a reasonable excuse for his untimely filings, the Full Commission finds that Plaintiff abandoned his appeal.

Further, the Full Commission finds that Plaintiff's attempt to a file a Form 44 and Brief on December 29, 2008 (after Defendants' dismissal motion was filed) is not timely and has prejudiced Defendants' ability to file a responsive brief. Accordingly, the Form 44 and Brief filed by Plaintiff are hereby stricken from the record.

Based on the foregoing and the complete record in this matter, Plaintiff's Motion for Reconsideration is DENIED. Pursuant to Rule 701 of the Workers' Compensation Rules, Roberts v.Wal-Mart Stores, Inc., 173 N.C. App. 740, 619 S.E.2d 907 (2005), and other applicable law, the Order dismissing Plaintiff's appeal is hereby AFFIRMED.

This matter is hereby removed from the hearing docket for the Full Commission.

No costs are awarded at this time.

S/___________________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/___________________ DANNY LEE MCDONALD COMMISSIONER

S/___________________ PAMELA T. YOUNG CHAIR