Copyright 1998 - N.C. Administrative Office of the Courts


LARRY CALHOUN, SR., Plaintiff v. WAYNE DENNIS HEATING & AIR CONDITIONING, and KEY RISK MANAGEMENT SERVICES, INC., Defendants

No. COA97-1270

(Filed 16 June 1998)

1.    Workers' Compensation § 411 (NCI4th)-- Form 60 admission of right to compensation -- Commission award -- right to seek judgment

    Defendant employer's execution of a Form 60 admission of plaintiff employee's right to compensation constituted an award of the Industrial Commission which entitled plaintiff to seek imposition of a judgment under N.C.G.S. § 97-87, which in turn entitled plaintiff to seek execution for past due installments and future installments as they become due.

2.    Workers' Compensation § 411 (NCI4th)-- compensation award -- judgment -- complaint in superior court

    Although plaintiff employee could have obtained a judgment under N.C.G.S. § 97-87 by merely filing with the clerk of court a certified copy of a Form 60 admission of plaintiff's right to compensation previously filed with the Industrial Commission, plaintiff's filing of a complaint in the superior court demanding entry of a judgment against defendant employer for sums due under the Form 60 admission of plaintiff's right to compensation was an acceptable method of asserting a claim for entry of a judgment pursuant to N.C.G.S. § 97-87 even though the complaint did not state that plaintiff was seeking a judgment under that section.

3.    Workers' Compensation § 301 (NCI4th)-- unpaid compensation - - interest -- superior court without authority

    The superior court has no authority to assess a 10% penalty under N.C.G.S. § 97-18(g), in the first instance, on compensation not paid by the employer to the employee within fourteen days after it became due.

4.    Trial § 56 (NCI4th)-- summary judgment -- notice of hearing

    The trial court was without authority to grant summary judgment for plaintiff employee in his action to obtain a judgment for a workers' compensation award where defendant employer did not have ten days notice of the hearing on the summary judgment motion and there was no evidence that defendant had waived its right to notice.

    Appeal by defendants from judgment filed 8 July 1997 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 13 May 1998.

    Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for plaintiff appellee.

    Young Moore and Henderson P.A., by J.D. Prather and Jeffrey T. Linder, for defendants appellants.

    GREENE, Judge.

    Wayne Dennis Heating & Air Conditioning (Wayne Dennis) and Key Risk Management Services, Inc. (Key Risk) (collectively defendants) appeal from a judgment for Larry Calhoun, Sr. (plaintiff).

    The facts in this case are as follows: On 1 August 1995, the plaintiff suffered a back injury while performing functions arising out of and in the course of his employment with defendants. The defendants completed a North Carolina Industrial Commission (Commission) Form 60, "Employer's Admission of Employee's Rights to Compensation Pursuant to N.C. Gen. Stat. § 97-18(b)," in which the defendants acknowledged that the plaintiff had been injured during the course of employment. The Form 60 outlined that the plaintiff had suffered an injury while at work and that the defendants were to pay the plaintiff temporary total disability compensation. The Form 60 was filed with the Commission on 15 September 1995 and pursuant to the Form 60, the defendants made compensation payments to the plaintiff from 4 September 1995 through 3 October 1995. On 4 October 1995, the defendants filed a Form 28B with the Commission notifying it that the defendants were ceasing compensation payments, as the plaintiff had returned to work on 4 October 1995.     On 19 March 1996, the defendants filed a second Form 60 with the Commission which stated that the plaintiff again was out of work due to injury and that the defendants were to pay temporary total compensation. The payments for the temporary total compensation were to begin on 14 August 1996.

    On 20 March 1997, the plaintiff filed a complaint in superior court alleging that he, as an employee of Wayne Dennis, had "sustained a compensable injury . . . invoking the . . . jurisdiction of the Workers' Compensation Act . . . ." The complaint further alleged that the defendants were indebted to the plaintiff because of the defendants' failure to make payments pursuant to a Form 60 filed with the Commission. In his prayer for relief the plaintiff demanded judgment against the defendants "for the sum of $333.35 per week from August 14, 1996, for necessary weeks until otherwise ordered by the . . . Commission, together with the 10% penalty set forth in N.C. Gen. Stat. § 97- 18(g), together with attorney fees and the costs of this action . . . ." On 20 June 1997, the defendants answered and admitted that Wayne Dennis, "a member of a self-insurance fund . . . through its servicing agent" Key Risk, had filed with the Commission Forms 60. The defendants denied that any judgment existed against them and moved to dismiss the plaintiff's action for failing to state a claim upon which relief could be granted. The defendants further alleged that an issue of the plaintiff's entitlement to Workers' Compensation benefits was pending before the Commission, as "plaintiff had returned to work at equal or greater wages."

    On 7 July 1997, the plaintiff filed a motion for summary judgment and served it on the defendants. On 8 July 1997, the defendants' motion to dismiss was heard by the trial court, having been duly calendared. At that hearing, the defendants objected to the hearing of the plaintiff's motion for summary judgment and the trial court indicated that it would not hear that motion.

    Following argument on the defendants' motion to dismiss, the trial court denied the defendants' motion to dismiss and asked the plaintiff to prepare an order reflecting such denial. The plaintiff tendered and the trial court signed a judgment providing in pertinent part: "This matter coming before the undersigned for entry of judgment pursuant to N.C. Gen. Stat. § 97-87, and it appearing to the court that no genuine issue as to any material fact exists and that Plaintiff is entitled to judgment as a matter of law." The judgment included the following relevant findings of fact:

        (3) The Form 60 is an award, decision, order, or agreement of the . . . Commission[;]

        . . . .

        (7) Defendants have not filed a certificate duly issued by the . . . Commission showing compliance with N.C. Gen. Stat. § 97-83[;]

        (8) Plaintiff is entitled to weekly compensation from August 14, 1996, until the present and continuing, in addition to a mandatory 10% penalty on all monies 14 days late, pursuant to N.C. Gen. Stat. § 97-18(g).

____________________________

    The issues are whether: (I) a Form 60 is an order, decision or award of the Commission within the meaning of N.C. Gen. Stat. § 97-87; (II) the plaintiff used the proper procedures in seeking a judgment under N.C. Gen. Stat. § 97-87; and (III) summary judgment was granted in this case.

                        I

    [1]The plaintiff argues that the defendants' execution of a Form 60 constitutes an award of the Commission and thus entitles him to seek the imposition of a judgment, which in turn entitles him to seek execution for past due installments and future installments as they become due.See footnote 1 We agree.

    N.C. Gen. Stat. § 97-87 provides:

        Any party in interest may file in the superior court of the county in which the injury occurred a certified copy of a memorandum of agreement approved by the Commission, or of an order or decision of the Commission, or of an award of the Commission unappealed from or of an award of the Commission affirmed upon appeal, whereupon said court shall render judgment in accordance therewith, and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though said judgment had been rendered in a suit duly heard and determined by said court: Provided, if the judgment debtor shall file a certificate duly issued by the . . . Commission showing compliance with G.S. 97-83 with the clerk of the superior court in the county or counties where such judgment is docketed, then such clerk shall make upon the judgment role an entry showing the filing of such certificate which shall operate as a discharge of the lien of the said judgment, and no execution shall be issued thereon; provided, further, that if at any time there is default in the payment of any installment due under the award set forth in said judgment the court may, upon application for cause and after 10 days' notice to judgment debtor, order the lien of such judgment restored, and execution may be immediately issued thereon for past due installments and for future installments as they may become due.

N.C.G.S. § 97-87 (1991). Section 97-87 thus permits "any party in interest" to convert a "memorandum of agreement approved by the Commission . . . an order or decision of the Commission . . . [or an] award of the Commission" into a court judgment. A Form 60 properly executed by the employer or someone acting on his behalf is an "award" within the meaning of section 97-87. This is so because any payment made "pursuant to G.S. 97-18(b)" constitutes an award of the Commission, N.C.G.S. § 97-82(b) (Supp. 1997), and payments voluntarily made by an employer pursuant to a Form 60 are payments made consistent with 97-18(b), see N.C.G.S. § 97-18(b) (Supp. 1997) (setting out procedures for payment where employer "admits the employee's right to compensation"). Indeed, the Form 60 specifically provides that it is entered "pursuant to N.C. Gen. Stat. § 97-18(b)."