Appeal by defendants from an opinion and award entered 24
September 1999 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 10 January 2001.
Tania L. Leon, P.A., by Tania L. Leon, for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Mel J.
Garofalo, Erica B. Lewis and Shelley W. Coleman, for
defendant-appellants.
McGEE, Judge.
Piedmont Aviation Services (employer) and Kemper Group
(collectively defendants) appeal from an opinion and award of the
North Carolina Industrial Commission filed 24 September 1999, in
which the Commission reversed a deputy commissioner's decision that
defendants were entitled to receive a credit of $125,321.39 against
the award of compensation previously paid to Marsha Jenkins
(plaintiff) and to suspend payment of workers' compensation
benefits to her.
Plaintiff was injured on 28 July 1986 when she was struck on
the back of her head and neck by a mirror that fell off the wall in
a hotel where plaintiff was staying while she was serving as a
sales representative for employer. Plaintiff suffered a cervical
neck strain. She was initially informed by her supervisor that the
injury was not work-related, and she was directed to file her claim
for medical care with employer's health insurance carrier.
Plaintiff was told by another supervisor in July 1988 that
her original neck injury was, in fact, work-related. The
supervisor informed plaintiff that he would file all the necessaryworkers' compensation forms within the two-year statute of
limitations period for workers' compensation claims. However,
unknown to plaintiff, her employer's group health insurance carrier
continued paying for plaintiff's medical treatment, not employer's
workers' compensation carrier.
Plaintiff sustained a second work-related injury in April 1988
when boxes of supplies fell and hit her hand, injuring her wrist
and thumb. Plaintiff missed some work due to her wrist injury from
April 1988 until January 1989. Plaintiff had surgery in January
1989 on her wrist and was unable to return to work until 10 April
1989.
Employer changed its group health insurance carrier to Blue
Cross/Blue Shield in December 1989. Blue Cross refused to pay for
plaintiff's further tests and treatment of the cervical strain
because Blue Cross determined plaintiff's injury was work-related.
Plaintiff ended her job with employer on 15 December 1989. On 6
March 1990, she filed a Form 33 request for hearing concerning her
cervical strain. Employer responded arguing that plaintiff's claim
was barred by N.C. Gen. Stat. § 97-24 for plaintiff's failure to
file her claim within two years following the accident.
An opinion and award filed 27 November 1990 by Deputy
Commissioner William L. Haigh held that plaintiff's neck injury
sustained on 28 July 1986 was compensable and that plaintiff last
worked for employer on 15 December 1989. Deputy Commissioner Haigh
concluded that, based on the facts, employer was estopped from
asserting the two-year statute of limitations as a bar to
plaintiff's claim for workers' compensation. Employer appealed tothe Commission. The Commission filed an opinion and award on 7
October 1991 holding that employer had failed to file a Form 19
report of injury with its workers' compensation carrier on behalf
of plaintiff in violation of N.C. Gen. Stat. § 97-92 and affirmed
the order of the deputy commissioner.
Plaintiff filed a Form 33 request for hearing on 11 May 1992
because employer's workers' compensation carrier refused to pay her
workers' compensation benefits. A hearing was held by Deputy
Commissioner Richard B. Ford to determine if "the disabilities
which the plaintiff suffers since January 5, 1990 [are] the result
of and due to the injury which she sustained on July 28, 1986" and
"to what further compensation, if any, is the plaintiff
entitled[.]" An opinion and award was filed on 7 January 1994 by
Deputy Commissioner Ford in which he concluded that (1) plaintiff
was entitled to temporary total disability compensation benefits
and payment for past, present and future medical expenses resulting
from the 28 July 1986 injury, and (2) defendants were entitled to
a credit for both compensation paid to plaintiff and for royalties
collected by plaintiff for musical compositions in which she had
collaborated subsequent to 19 April 1988. The opinion and award
did not determine the amount of credit owed to defendants or how
the credit was to be applied against plaintiff's future workers'
compensation payments. The opinion and award also cited no
statutory provision or authority for awarding the credit. At the
time of plaintiff's hearing before Deputy Commissioner Ford,
defendants had not paid plaintiff any workers' compensation
payments for her 28 July 1986 cervical injury. Plaintiff receiveda disability payment on 30 April 1994 for accrued benefits for a
period beginning 15 December 1989.
Following a hearing to determine "what amount of credit [] the
Defendants [are] entitled to take from the compensation awarded to
the Plaintiff by [Deputy Commissioner Ford]," Deputy Commissioner
Mary Moore Hoag filed an opinion and award on 6 August 1996 finding
that the evidence presented thus far established that defendants
were entitled to a credit from the compensation previously paid to
plaintiff because of royalty income earned by plaintiff since April
1988 and allowing defendants to cease further workers' compensation
payments to plaintiff. Deputy Commissioner Hoag also ordered that
the record remain open for further documentary evidence to
determine the amount of the credit to which defendants were
entitled.
A second opinion and award was filed by Deputy Commissioner
Hoag on 16 October 1997 deciding only whether defendants were
entitled to a credit as previously stated by Deputy Commissioner
Ford and, if so, the amount of the credit. The 16 October 1997
opinion and award incorporated Deputy Commissioner Ford's 7 January
1994 opinion and award. Deputy Commissioner Hoag found that,
beginning in 1992, plaintiff earned royalty income and concluded,
based on N.C. Gen. Stat. § 97-30 and on Deputy Commissioner Ford's
previous opinion, that defendants were entitled to a credit in the
amount of $125,321.39. In addition, Deputy Commissioner Hoag
concluded that defendants were entitled to suspend payments to
plaintiff until the total credit for royalty income was exhausted.
She further found that plaintiff had a presumption of continuingdisability and ordered an independent medical examination.
Plaintiff appealed to the Commission. In an opinion and award
dated 24 September 1999, the Commission reversed the 16 October
1997 opinion and award of Deputy Commissioner Hoag. The
Commission concluded that plaintiff's disability began on 15
December 1989 and that defendants were not entitled to a credit for
plaintiff's royalty payments. The Commission found that Deputy
Commissioner Ford did not have the authority "to give defendants
[a] credit for earnings from intellectual work or property rights
acquired at a time when plaintiff was working and earning her
regular wages from defendant[.]" The Commission also found that
Deputy Commissioner Ford's award of a credit was void and
unenforceable. However, the Commission concluded defendants were
entitled to a credit for plaintiff's earnings from her home-based
jewelry making business for 1992 and 1993. The Commission further
concluded defendants had not rebutted plaintiff's presumption of
continuing disability. Defendants appeal the decision of the
Commission.
I.
[1]Defendants first argue the Commission lacked the authority
to review and set aside Deputy Commissioner Ford's award and
opinion because plaintiff did not appeal from that decision. The
record before us shows neither party appealed Deputy Commissioner
Ford's decision of 7 January 1994. Plaintiff did file a timely
appeal to the Commission of the 16 October 1997 decision of Deputy
Commissioner Hoag.
Our Supreme Court has stated that the "statutes creating theIndustrial Commission have by implication clothed
the Commission
with the power to provide this remedy [to set aside one of its
former judgments], a remedy related to that traditionally available
at common law and equity and codified by Rule 60(b)."
Hogan v.
Cone Mills Corp., 315 N.C. 127, 137, 337 S.E.2d 477, 483 (1985).
The Commission, "in the exercise of supervision over its own
judgments," may utilize this remedy "when the paramount interest in
achieving a just and proper determination of a claim requires it."
Id. at 129, 337 S.E.2d at 478.
While defendants acknowledge the holding in
Hogan, they
specifically argue that our Court's decision in
Moore v. City of
Raleigh, 135 N.C. App. 332, 520 S.E.2d 133 (1999),
cert. denied,
351 N.C. 358, 543 S.E.2d 131 (2000), prohibits the Commission from
setting aside Deputy Commissioner Ford's opinion and award because
an application for review of that opinion and award was not filed
by plaintiff within fifteen days pursuant to N.C. Gen. Stat. § 97-
85. In
Moore, the Commission "waived the fifteen day rule on the
basis that plaintiff's
pro se representation before the deputy
commissioner constituted excusable neglect[.]"
Moore at 334, 520
S.E.2d at 135. As a result of the excusable neglect, the
Commission determined it had authority to set aside the judgment.
Our Court reversed the Commission, stating the plaintiff's actions
did not constitute excusable neglect; consequently, the Commission
did not have the authority to review or set aside a final order of
the deputy commissioner. The order became final because theplaintiff had failed to follow the proper channels of appeal under
N.C.G.S. § 97-85. However, our Court did not rule the Commission
never had the power to set aside an otherwise final judgment. Our
Court acknowledged the Commission has the power to set aside a
judgment when there is "[m]istake, inadvertence, surprise, or
excusable neglect[,]" or "on the basis of newly discovered
evidence," or "on the grounds of mutual mistake, misrepresentation,
or fraud."
Moore at 336, 520 S.E.2d at 137 (citations omitted).
In
Moore, the plaintiff's actions did not constitute excusable
neglect, nor any of the other reasons required to set aside a
judgment.
While it is true plaintiff did not appeal Deputy Commissioner
Ford's award or file a motion with the Commission to set aside
Deputy Commissioner Ford's award, such acts are not required.
Again, the power of the Commission to set aside former judgments is
"analogous to that conferred upon the courts by N.C.R. Civ. P.
60(b)(6)" and the remedy the Commission may provide is "related to
that traditionally available at common law and equity and codified
by Rule 60(b)."
Hogan at 137, 337 S.E.2d at 483. This power
includes the ability to set aside judgments even when a party has
not made a motion to do so. Although "Rule 60 says that the court
is to act 'on motion,' it does not deprive the court of the power
to act in the interest of justice in an unusual case where its
attention has been directed to the necessity for relief by means
other than a motion."
Taylor v. Triangle Porsche-Audi, Inc., 27
N.C. App. 711, 717, 220 S.E.2d 806, 811 (1975),
cert. denied, 289N.C. 619, 223 S.E.2d 396 (1976).
[2]N.C. Gen. Stat. § 1A-1 Rule 60(b) (1999) confers upon the
Commission the ability to set aside a judgment where it finds
(1) Mistake, inadvertence, surprise, or
excusable neglect;
(2) Newly discovered evidence which by
due diligence could not have been
discovered in time to move for a new
trial under Rule 59(b);
(3) Fraud (whether heretofore
denominated intrinsic or
extrinsic), misrepresentation, or
other misconduct of an adverse
party;
(4) The judgment is void;
(5) The judgment has been satisfied,
released, or discharged, or a prior
judgment upon which it is based has
been reversed or otherwise vacated,
or it is no longer equitable that
the judgment should have prospective
application; or
(6) Any other reason justifying relief
from the operation of the judgment.
In the case before us, the Commission made specific findings of
fact that Deputy Commissioner Ford's judgment was void because the
Commission did not have the power to award a credit for property
rights acquired by plaintiff for the lyrics to the two songs prior
to the date of her disability. If in fact the deputy commissioner
did not have authority to enter the judgment, the judgment is void
and the Commission has the authority under N.C.G.S. § 1A-1 Rule
60(b)(4) to set aside the judgment.
Defendants argue the Commission erred by setting aside the
deputy commissioner's judgment when that judgment was not void.
When a "court acts in excess of its authority . . . 'its judgment
. . . is void and of no effect. A lack of jurisdiction or power
in the court entering a judgment always avoids the judgment, and avoid judgment may be attacked whenever and wherever it is asserted,
without any special plea.'"
Allred v. Tucci, 85 N.C. App. 138,
143, 354 S.E.2d 291, 295,
cert. denied, 320 N.C. 166, 358 S.E.2d 47
(1987) (quoting
Hanson v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565,
568 (1952)). In the case before us, the Commission was correct in
asserting that the deputy commissioner had "no jurisdiction over
earnings, investments or property rights obtained prior to an
employee's disablement due to a work-related injury or prior to the
time defendant's obligation to pay indemnity or wage loss
compensation arises."
Under the Workers' Compensation Act, the only statutes which
allow the Commission to award credits are N.C. Gen. Stat. § 97-42
(1999) and N.C. Gen. Stat. § 97-42.1 (1999). These statutes allow
for a credit for amounts voluntarily paid by the employer before
the workers' compensation benefits are awarded. The "laudable
purpose" of this section is "to encourage voluntary payments to
workers while their claims to compensation are being disputed and
they are receiving no wages."
Evans v. AT&T Technologies, 103 N.C.
App. 45, 48, 404 S.E.2d 183, 185 (1991),
rev'd on other grounds,
332 N.C. 78, 418 S.E.2d 503 (1992).
A "credit" is a deduction by the employer of a
prior payment made to an injured employee from
the compensation benefit that is now due the
employee. The only statute in North Carolina
authorizing a credit is N.C.G.S. § 97-42. It
provides, in order to encourage voluntary
payments by the employer while the worker's
claim is being litigated and he is receiving
no wages, that any payments made by the
employer to the injured employee which were
not due and payable when made, may in certain
cases be deducted from the amount ofcompensation due the employee.
Gray v. Carolina Freight Carriers, 105 N.C. App. 480, 484, 414
S.E.2d 102, 104 (1992). This credit applies to payments made by
the employer, not to any and all other payments the employee may
receive from outside sources.
In the case before us, the royalties plaintiff may have
received were not payments the employer made; therefore, the
Commission did not have the authority under N.C.G.S. § 97-42 to
offset these amounts against any future payment the employer is
required to make. Our Supreme Court has interpreted the provisions
of N.C.G.S. § 97-42 as
typically limited to situations where . . . an
employer pays a disabled employee wages
intended as compensation (and not as a
gratuity) throughout the period of the
latter's absence from work, or where the
employer pays the employee a lump sum in
settlement of an anticipated award but a
change in the latter's condition causes the
award to be diminished.
Moretz v. Richards & Associates, 316 N.C. 539, 541, 342 S.E.2d 844,
846 (1986). Plaintiff's uncontested testimony was that
I was intermittently working from August of
'89 until November of '89. And they made me
use my sick time so I still got paid. Once my
sick time was exhausted, which was November of
'89, the company made me go on leave in
January of '90, and it was medical leave with
no pay[.]
Therefore, the opinion and award of Deputy Commissioner Ford stated
that defendants were owed a credit, when defendants had not paid
any disability payments to plaintiff, but rather had required
plaintiff to use her sick leave which she had earned by working
overtime. Fringe benefits, such as sick leave time, are notdisability payments.
See Moretz, 316 N.C. at 541, 342 S.E.2d at
846 (fringe benefits are of a contractual nature rather than
proceeds that are grounded in the workers' compensation law).
The Commission can only credit the employer with payments the
employer itself has previously made. In addition, defendants did
not show a change in plaintiff's medical condition in order to
reduce the compensation owed and were ordered by Deputy
Commissioner Ford to begin disability compensation payments to
plaintiff for her work-related injury. There is evidence in the
record tending to show that Deputy Commissioner Ford's opinion
exceeded statutory authority under N.C.G.S. § 97-42 in that (1)
defendants had made no compensation disability payments to
plaintiff and (2) defendants had not shown a change in condition of
plaintiff to cause the ordered compensation payments to be reduced.
Defendant's argument that N.C.G.S. § 97-42 grants the Commission
the broad power to award any and all credits the Commission may
desire is without merit. N.C.G.S. § 97-42 specifically authorizes
the Commission to award credits for payments the
employer has made
which at the time of payment had not been ordered payable by the
Commission.
[3]Furthermore, the Commission found that plaintiff was not
disabled until 15 December 1989. While Deputy Commissioner Ford
stated in his findings of fact that plaintiff was actively employed
until 19 April 1988, the Commission is not bound by the deputy
commissioner's findings.
The deputy commissioner's findings of fact are
not conclusive; only the Full Commission's
findings of fact are conclusive. TheCommission may "weigh the evidence [presented
to the deputy commissioner] and make its own
determination as to the weight and credibility
of the evidence." The Commission may strike
the deputy commissioner's findings of fact
even if no exception was taken to the
findings.
Keel v. H & V Inc., 107 N.C. App. 536, 542, 421 S.E.2d 362, 367
(1992) (quoting
Hobgood v. Anchor Motor Freight, 68 N.C. App. 783,
785, 316 S.E.2d 86, 87 (1984)). There is competent evidence to
support the Commission's finding that plaintiff in fact became
disabled in December 1989. Plaintiff continued to work for
defendant until 15 December 1989. While she missed some periods of
work from April 1988 until December 1989, there is competent
evidence in the record which shows she missed this time due to the
injury to her wrist. The first evidence of any workers'
compensation payment for plaintiff's cervical strain injury is on
30 April 1994. Any disability payments plaintiff may have received
from April 1988 until December 1989 were due to her wrist injury.
Defendants did not even recognize plaintiff's cervical neck injury
as a compensable injury until the opinion and award filed 27
November 1990 by Deputy Commissioner Haigh in which he held that
plaintiff's neck injury on 28 July 1986 was compensable.
Plaintiff's wrist injury was not before Deputy Commissioner Ford.
The only injury at issue before him was plaintiff's 1986 neck
injury. As a result of the Commission's finding that plaintiff
became disabled on 15 December 1989, Deputy Commissioner Ford's
award was again without jurisdiction, as the Commission does not
have jurisdiction to award credits for income plaintiff received
before plaintiff became disabled. The credit defendants claim andthe credit the deputy commissioner awarded do not fall within the
language of N.C.G.S. § 97-42 or its intended purpose. We overrule
this assignment of error.
II.
[4]Defendants next argue the Commission erred in determining
the amount of credit defendants were entitled to receive for
payments they made during weeks that plaintiff earned income from
her home-based jewelry making business. However, defendants have
cited no case law or statutory authority in support of their
argument. Rule 28(b)(5) of the North Carolina Rules of Appellate
Procedure requires the appellant's argument to "contain citations
of the authorities upon which the appellant relies." N.C.R. App.
P. 28(b)(5).
See State v. Thompson, 110 N.C. App. 217, 222, 429
S.E.2d 590, 592 (1993);
Byrne v. Bordeaux, 85 N.C. App. 262, 354
S.E.2d 277 (1987). Furthermore, there is competent evidence in the
record to support the Commission's findings of fact. We deem this
assignment of error abandoned.
In review, the Commission's opinion and award voiding Deputy
Commissioner Ford's determination of a credit against plaintiff's
royalty income and reversing Deputy Commissioner Hoag's opinion and
award is affirmed. The Commission's opinion and award granting
defendants a week by week credit totaling $2,586.00 for plaintiff's
income from her jewelry making business is affirmed.
Affirmed.
Judges WYNN and JOHN concur.
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