Appeal by plaintiff from opinion and award entered 15 February
2001 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 28 March 2002.
Law Offices of George W. Lennon, by George W. Lennon and
Michael W. Ballance, for plaintiff-appellant.
Teague, Campbell, Dennis & Gorham, L.L.P., by Linda Stephens
and Tracey L. Jones, for defendant-appellees.
MARTIN, Judge.
Plaintiff was injured in his employment with defendant-
employer on 20 October 1995. On 1 November 1995, defendants
executed an IC Form 60, recognizing plaintiff's right to temporary
total disability compensation. Pursuant thereto, plaintiff
received compensation from 21 October 1995 until 10 August 1996.
On 29 July 1996, defendants filed an IC Form 24 application to
terminate plaintiff's benefits for his refusal to return to work.
The Form 24 was withdrawn by defendants on 12 August 1996 after the
parties entered into a clincher agreement in which defendants
agreed to pay plaintiff $30,000 in addition to the compensation
which he had already been paid in full settlement of his claim “forcompensation due or to become due.” The clincher agreement was
submitted to the Industrial Commission for approval and was
approved.
On 26 December 1996, plaintiff filed an IC Form 33, seeking to
set aside the clincher agreement on the grounds that it had been
improvidently approved by the Commission. A deputy commissioner
denied plaintiff's motion and the Full Commission affirmed the
deputy's decision. Plaintiff appealed to this Court. In an
unpublished opinion filed 19 December 2000, this Court held that
the agreement had been approved in violation of G.S. § 97-82 and
Industrial Commission Rule 502 and was voidable pursuant to G.S. §
97-82. The Commission's decision was reversed and the case was
remanded to the Commission. Ratchford v. C.C. Mangum, Inc., 141
N.C. App. 150, 541 S.E.2d 523 (unpublished, COA99-1611, 19 December
2000). The decision was certified to the Commission on 8 January
2001.
On 23 January 2001, defendants petitioned the North Carolina
Supreme Court for discretionary review. While the petition was
pending, on 15 February 2001, the Industrial Commission entered an
opinion and award concluding “the agreement is voidable by
plaintiff” and remanding the case to a deputy commissioner for a
further hearing to determine what benefits, if any, are owed to
plaintiff. On 1 March 2001, the Supreme Court denied defendant's
petition for discretionary review. On 12 March 2001, plaintiff
gave notice of appeal from the Commission's 15 February 2001
opinion and award.
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Plaintiff initially contends the Commission had no
jurisdiction to enter its opinion and award because defendants'
petition for discretionary review of this Court's opinion was
pending before the North Carolina Supreme Court. We disagree.
Where a case is remanded to the Industrial Commission from an
appellate court, the appellate court surrenders jurisdiction and
the Industrial Commission acquires jurisdiction for all purposes.
Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799 (1935). Thus,
the Commission acquired jurisdiction of this case after appeal on
8 January 2001 when this Court certified its opinion reversing the
prior opinion and award and remanding the case to the Commission.
The petition for discretionary review, filed in the Supreme Court
on 23 January 2001, did not divest the Commission of jurisdiction.
In the absence of the grant of a temporary stay or a writ of
supersedeas by the Supreme Court, the enforcement of the
determination mandated by the Court of Appeals is not stayed
pending the Supreme Court's determination of the application for
discretionary review. N.C.R. App. P. 23. The record in this case
does not contain any order of the Supreme Court staying, pending
that Court's determination of defendant's petition for
discretionary review of the decision of this Court, the effect of
the mandate issued by this Court to the Commission. Therefore, we
hold the Commission had jurisdiction to enter the opinion and award
from which plaintiff seeks to appeal.
Having determined that the Commission had jurisdiction toenter the opinion and award, we must now consider whether the
opinion and award is properly before us for review. We conclude
that it is not and dismiss the appeal.
An appeal from an opinion and award of the Industrial
Commission is subject to the “same terms and conditions as govern
appeals from the superior court to the Court of Appeals in ordinary
civil actions.” N.C. Gen. Stat. § 97-86 (1999). Parties have a
right to appeal any final judgment of a superior court. N.C. Gen.
Stat. § 7A-27 (1999). Thus, an appeal of right arises only from a
final order or decision of the Industrial Commission.
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).
A final judgment is one that determines the entire controversy
between the parties, leaving nothing to be decided in the trial
court.
Ledford, 125 N.C. App. at 599, 482 S.E.2d at 545;
Atkins v.
Beasley, 53 N.C. App. 33, 36, 279 S.E.2d 866, 869 (1981). An
opinion and award of the Industrial Commission is interlocutory if
it determines one but not all of the issues in a workers'
compensation case.
Fisher v. E.I. Du Pont De Nemours, 54 N.C. App.
176, 177-78, 282 S.E.2d 543, 544 (1981) (order not final where
amount of compensation not determined).
In the present case, the Commission's opinion and award
determines that the clincher agreement is void; the extent and
amount of compensation to which plaintiff is entitled upon the
voiding of the agreement, however, has not been determined. Thus,
the order does not determine the entire controversy and, to theextent it remands the matter to a deputy commissioner for hearing,
it is clearly interlocutory.
See Fisher, supra.
Nevertheless, an appeal from an interlocutory order may be
proper when the order from which appeal is taken affects a
substantial right of the appellant. N.C. Gen. Stat. .. 7A-27(d)
(1999); 1-277 (1999). This exception requires that the
interlocutory order being appealed affect a right of the appellant
which is a substantial one, the deprivation of which will
potentially result in injury to the appellant if the order is not
reviewed before final judgment.
Travco Hotels v. Piedmont Natural
Gas Co., 332 N.C. 288, 420 S.E.2d 426 (1992);
see Plummer v.
Kearney, 108 N.C. App. 310, 423 S.E.2d 526 (1992) (applying
substantial right analysis to workers' compensation case). Whether
an order affects a substantial right is a case-by-case
determination made by weighing the specific facts and procedural
context.
Id. “The party desiring an immediate appeal of an
interlocutory order bears the burden of showing that such appeal is
necessary to prevent loss of a substantial right.”
Mills Pointe
Homeowner's Association, Inc. v. Whitmire, 146 N.C. App. 297, 299,
551 S.E.2d 924, 926 (2001) (citing
Jeffreys v. Raleigh Oaks Joint
Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994)). In
Jeffreys, this Court stated that “[i]t is not the duty of this
Court to construct arguments for or find support for appellant's
right to appeal from an interlocutory order.” 115 N.C. App. at
380, 444 S.E.2d at 254. Plaintiff has shown, in his brief, no
substantial right which may be lost if the Commission's opinion andaward is not reviewed before a final decision.
Appeal dismissed.
Judges TYSON and THOMAS concur.
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