Workers' Compensation--amount of compensation unresolved--further evidence--
interlocutory order--not immediately appealable
An opinion and award of the Industrial Commission which settles preliminary questions
of compensability but leaves unresolved the amount of compensation to which plaintiff is
entitled and expressly reserves final disposition of the matter pending receipt of further evidence
is interlocutory and not immediately appealable. Appeal by defendants from opinion and award filed 28 January
1998 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 18 January 1999.
Plaintiff filed a claim seeking workers' compensation
benefits for injury to his back and knee that he allegedly
sustained on or about 14 August 1993 while lifting a steel basket
in the course of his employment with defendant-employer, Elkay
Southern Corporation. Defendants denied that the claim was
compensable. Following a hearing on 21 February 1997, a deputy
commissioner concluded that plaintiff sustained an injury by
accident arising out of and in the course of his employment on 14
August 1993. The deputy commissioner further concluded that
plaintiff is entitled to have defendants provide for all medical
treatment arising from this injury to the extent the treatment
tends to effect a cure, give relief or lessen plaintiff's
disability. The deputy commissioner also concluded that
plaintiff is entitled to temporary total disability as a result
of the injury; however, because there was insufficient evidence
in the record to determine the dates for which plaintiff was
entitled to receive temporary total or temporary partial
disability compensation, the deputy commissioner ordered the
parties “to confer on these issues.” In the event the parties
could not agree, they were allowed to submit additional evidenceso the deputy could decide the issue.
The Full Commission reached the same conclusions. In
addition, the Full Commission reserved the issue of the amount
of permanent partial disability, if any, to which plaintiff is
entitled for subsequent determination. The Full Commission
ordered plaintiff to go to an orthopedic surgeon and submit
himself for an examination, evaluation, and recommendation of
treatment. The Full Commission stated that if the surgeon had no
recommendation of treatment, then plaintiff should apply for a
permanent partial disability rating. Defendants appeal.
Roger Newman for plaintiff-appellee.
Lewis & Roberts, P.L.L.C., by Winston L. Page, Jr. and M.
Reid Acree, Jr., for defendant-appellants.
EAGLES, Chief Judge.
Neither party addresses the issue of whether the opinion and
award is appealable at this time. An appeal from an opinion and
award of the Industrial Commission is taken “under the same terms
and conditions as govern appeals from the superior court to the
Court of Appeals in ordinary civil actions.” G.S. 97-86.
Consequently, an appeal of right lies only from a final order or
decision of the Industrial Commission, one that determines the
entire controversy between the parties. Ledford v. Asheville
Housing Authority, 125 N.C. App. 597, 598-99, 482 S.E.2d 544,545, disc. review denied, 346 N.C. 280, 487 S.E.2d 550 (1997).
An opinion and award that settles preliminary questions of
compensability but leaves unresolved the amount of compensation
to which the plaintiff is entitled and expressly reserves final
disposition of the matter pending receipt of further evidence is
interlocutory. Fisher v. E. I. Du Pont De Nemours, 54 N.C. App.
176, 177-78, 282 S.E.2d 543, 544 (1981); Nash v. Conrad
Industries, 62 N.C. App. 612, 618, 303 S.E.2d 373, 377, aff'd,
309 N.C. 629, 308 S.E.2d 334 (1983); Beard v. Blumenthal Jewish Home, 87 N.C. App. 58, 61-62, 359 S.E.2d 261, 263 (1987), disc.
review denied, 321 N.C. 471, 364 S.E.2d 918 (1988).
The present opinion and award on its face reserves issues
for further determination. There is nothing in the record to
indicate that all of the matters in this case have been resolved.
It is our duty to dismiss an appeal sua sponte when no right of
appeal exists. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d
431, 433 (1980). We therefore dismiss this appeal as
interlocutory.
Appeal dismissed.
Judges McGEE and HORTON concur.
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