Appeal by defendants from order filed 17 August 2000 by the
North Carolina Industrial Commission. Heard in the Court of
Appeals 4 December 2001.
Maxwell & Melvin, by Stephen R. Melvin, for
plaintiff-appellee.
Young Moore and Henderson, P.A., by Joe E. Austin, Jr., and
Tina Lloyd Hlabse, for defendant-appellants.
GREENE, Judge.
Cedar Creek BP and Casualty Reciprocal Exchange (collectively,
Defendants) appeal an order filed 17 August 2000 by the Full
Commission of the North Carolina Industrial Commission (the
Commission) vacating: (a) an order by the deputy commissioner
dismissing a workers' compensation claim by Brenda Harvey
(Plaintiff) and (b) a subsequent order by the executive secretary
allowing Defendants' motion to strike Plaintiff's request for a
hearing.
On 19 May 1995, Plaintiff, an employee of Cedar Creek BP,
filed a workers' compensation claim, alleging she had injured herfoot when she fell at work. Plaintiff submitted a Form 33 dated 13
October 1998 requesting her claim be assigned for hearing before a
deputy commissioner. A hearing was scheduled for 15 November 1999;
however, neither Plaintiff nor her attorney appeared before the
deputy commissioner on that date. When Defendants moved for a
dismissal of Plaintiff's workers' compensation claim with
prejudice, the deputy commissioner entered an order filed 22
November 1999 dismissing Plaintiff's claim without stating whether
he was doing so with or without prejudice.
In a second Form 33 dated 19 January 2000, Plaintiff again
requested her claim be assigned for a hearing. Defendants
responded by filing a motion dated 3 March 2000 requesting
Plaintiff's Form 33 be stricken. In an order filed 27 March 2000,
the executive secretary granted Defendants' motion, noting the
deputy commissioner had dismissed Plaintiff's claim with prejudice.
On 3 April 2000, Plaintiff appealed this order to the Commission.
In an order filed 17 August 2000, the Commission vacated both the
deputy commissioner's dismissal of Plaintiff's claim and the
executive secretary's order striking Plaintiff's request for a
hearing on the grounds that: (1) no statutory authority for the
dismissal of Plaintiff's claim existed at the time of the hearing
on 15 November 1999; and (2) in the alternative, “the dismissal of
[P]laintiff's claim terminated [her] exclusive remedy when other
lesser sanctions were appropriate and available” and therefore
constituted an abuse of discretion.
___________________________
The dispositive issue is whether the deputy commissioner's
dismissal of Plaintiff's claim was with or without prejudice.
We first note that even prior to the enactment of Workers'
Compensation Rule 613(1)(c),
(See footnote 1)
the Industrial Commission, which
includes the deputy commissioner, had the inherent authority to
dismiss a claim with or without prejudice for failure to prosecute.
“[T]he Industrial Commission possesses such judicial power as is
necessary to administer the Workers' Compensation Act.”
Hogan v.
Cone Mills Corp., 315 N.C. 127, 138, 337 S.E.2d 477, 483 (1985);
N.C.G.S. § 97-83 (1999). One of the powers inherent in the courts
and thus also in the Industrial Commission is the “power of the
court to dismiss a case for want of prosecution.”
Swygert v.
Swygert, 46 N.C. App. 173, 178, 264 S.E.2d 902, 905,
appeal
dismissed, 270 S.E.2d 116 (1980). Accordingly, the Commission, in
falsely believing the Industrial Commission lacked such authority,
erred in setting aside on this basis the orders by the deputy
commissioner and the executive secretary.
With respect to an involuntary dismissal, N.C. Gen. Stat. §
1A-1, Rule 41(b) states: “Unless the court in its order for
dismissal otherwise specifies, a dismissal under this section and
any dismissal not provided for in this rule, . . . operates as an
adjudication upon the merits.” N.C.G.S. § 1A-1, Rule 41(b) (1999). In other words, an involuntary dismissal which fails to state that
it is without prejudice will be construed as being with prejudice.
While “[t]he Rules of Civil Procedure are not strictly applicable
to proceedings under the Workers' Compensation Act,” they may
provide guidance in the absence of an applicable rule under the
Workers' Compensation Act.
See Hogan, 315 N.C. at 137, 337 S.E.2d
at 483 (determining the Industrial Commission has the inherent
power, analogous to N.C. Gen. Stat. § 1A-1, Rule 60(b)(6), to grant
relief from judgment). The Workers' Compensation Act provides no
direction for the proper interpretation of an involuntary dismissal
that is silent on whether the dismissal is with or without
prejudice. Thus, this Court may look to N.C. Gen. Stat. § 1A-1,
Rule 41(b) for guidance.
Accordingly, the involuntary dismissal of Plaintiff's claim
entered by the deputy commissioner upon Plaintiff's failure to
prosecute, which does not mention whether it was entered with or
without prejudice, must be construed as having been entered with
prejudice. Because the dismissal with prejudice “terminated
[P]laintiff's exclusive remedy when other lesser sanctions were
appropriate and available,” we agree with the Commission's
alternative conclusion that the deputy commissioner's order
dismissing Plaintiff's claim and the executive secretary's order
allowing Defendants' motion to strike Plaintiff's request for a
hearing should be vacated based on an abuse of discretion by thedeputy commissioner
(See footnote 2)
and Plaintiff's claim should be reset for
hearing.
See Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132
N.C. App. 11, 17, 510 S.E.2d 388, 393 (in reviewing a dismissal for
abuse of discretion, the exclusivity of the plaintiff's remedy and
the appropriateness of alternative sanctions must be considered),
disc. review denied, 350 N.C. 834, 538 S.E.2d 197 (1999).
Accordingly, we affirm the Commission.
Affirmed.
Judges McCULLOUGH and CAMPBELL concur.
Footnote: 1