The sole issue presented is the number of days within which
payment must be tendered pursuant to a compromise settlement
agreement for it to be deemed timely and avoid being subject to a
late payment penalty. Several statutes are relevant to ourdetermination of this issue. N.C.G.S. § 97-18(g) (2001) provides
that a ten percent (10%) late payment penalty “shall be added” to
any payment not made within fourteen (14) days after it becomes
due. Under N.C.G.S. § 97-18(e) (2001), the first installment of
compensation “shall become due 10 days from the day following
expiration of the time for appeal from the award[.]” N.C.G.S. §
97-85 (2001) provides that appeal of a workers' compensation award
must be made to the Full Commission within fifteen (15) days of the
date that notice of the award was given. Finally, N.C.G.S. § 97-17
(2001) provides in part:
This article does not prevent settlements made
by and between the employee and employer so
long as the amount of compensation and the
time and manner of payment are in accordance
with the provisions of this Article. . . . No
party to any agreement for compensation
approved by the Commission shall deny the
truth of the matters contained in the
settlement agreement, unless the party is able
to show to the satisfaction of the Commission
that there has been error due to fraud,
misrepresentation, undue influence or mutual
mistake, in which event the Commission may set
aside the agreement.
Except as provided in
this subsection, the decision of the
Commission to approve a settlement agreement
is final and is not subject to review or
collateral attack.
G.S. § 97-17(a) (emphasis added). In 1998, this Court interpreted
the above referenced statutes as providing thirty-nine (39) days
for payment of a compromise settlement award, applying the
following formula: “to calculate the date upon which the 10%
penalty applies, . . . consider the fifteen day appeal time
provided under N.C.G.S. § 97-85, then add ten days as provided
under N.C.G.S. § 97-18(e), and finally add fourteen (14) days asprovided under N.C.G.S. § 97-18(g).”
Felmet v. Duke Power Co., 131
N.C. App. 87, 90, 504 S.E.2d 815, 816 (1998),
disc. review denied,
350 N.C. 94, 527 S.E.2d 666 (1999). The Court's inclusion of a
fifteen day time period for appeal was based on its reasoning that,
although G.S. § 97-17 allows the Industrial Commission to set aside
a compromise settlement agreement only upon a finding of,
e.g.,
fraud, mutual mistake, etc., the statute “in no way implies that a
compromise settlement cannot be appealed to this Court.”
Felmet,
131 N.C. App. at 91, 504 S.E.2d at 817.
Following our decision in
Felmet, the N.C. General Assembly
amended G.S. § 97-17, effective 15 June 2001, and thus applicable
to the case
sub judice.
(See footnote 1)
The present statute includes the
following sentence, which was not a part of the statute as
interpreted by the
Felmet court: “Except as provided in this
subsection, the decision of the Commission to approve a settlement
agreement is final and is not subject to review or collateral
attack.” Plaintiff argues that by removing the right to “review or
collateral attack” the statute eliminates the right to appeal
within fifteen (15) days, thereby shortening the time for payment
from 39 to 24 days. We agree.
“First, 'it is a well established principle of statutory
construction that a section of a statute dealing with a specific
situation controls, with respect to that situation, other sectionswhich are general in their application.'”
Westminster Homes, Inc.
v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298, 304, 554
S.E.2d 634, 638 (2001) (quoting
State ex rel. Utilities Comm. v.
Electric Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670
(1969))(where statutes cannot be reconciled, the statutory
provision “dealing with a specific situation” governs, rather than
more general statutory sections).
See also Bowling v. Combs, 60
N.C. App. 234, 298 S.E.2d 754,
cert. denied, 307 N.C. 696, 301
S.E.2d 389 (1983). While G.S. § 97-85 addresses the general right
of parties to appeal from an opinion of a deputy commissioner to
the Full Commission, G.S. § 97-17 governs the specific rights of
parties to a compromise settlement agreement and, thus, controls
the present situation. N.C.G.S. § 97-17(a), as amended in 2001,
expressly removes any right of automatic appeal from an approved
compromise settlement agreement.
Notwithstanding the statutory language stating that an
approved settlement agreement “is final and is not subject to
review or collateral attack,” the Full Commission held that the
fifteen (15) day period for appeal was still applicable, because
the Commission retains the right to set aside an agreement procured
through,
e.g.,, undue influence or fraud. However, the
Commission's authority to set aside an agreement under the limited
circumstances enumerated in the statute does not derive from a
party's right to appeal. Rather, it is a part of the Commission's
inherent judicial authority:
[T]he Commission has the power to set aside a
judgment when there is 'mistake, inadvertence,surprise, or excusable neglect[,]' or . . .
'on the grounds of mutual mistake,
misrepresentation, or fraud.' 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).' This
power includes the ability to set aside
judgments even when a party has not made a
motion to do so.
Jenkins v. Piedmont Aviation Servs., 147 N.C. App. 419, 424, 557
S.E.2d 104, 108 (2001) (citing
Hogan v. Cone Mills Corp., 315 N.C.
127, 137, 337 S.E.2d 477, 483 (1985), and
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)),
disc. review denied, 356 N.C. 303, 570
S.E.2d 724 (2002). Thus, N.C.G.S. § 1A-1 Rule 60(b) (2001)
“confers upon the Commission the ability to set aside a judgment”
Jenkins,
147 N.C. App. at 424, 557 S.E.2d at 108,
procured through
fraud, misrepresentation, undue influence or mutual mistake.
Rule
60(b) does not require that a motion be made within a particular
time period such as fifteen (15) days, but only “within a
reasonable time,” and “not more than one year after the judgment,
order, or proceeding was entered or taken.”
“When confronting an issue involving statutory interpretation,
this Court's 'primary task is to determine legislative intent while
giving the language of the statute its natural and ordinary meaning
unless the context requires otherwise.'”
Spruill v. Lake Phelps
Vol. Fire Dep't, Inc., 351 N.C. 318, 320, 523 S.E.2d 672, 674
(2000) (quoting
Turlington v. McLeod, 323 N.C. 591, 594, 374 S.E.2d
394, 397 (1988)). The reasoning of
Felmet, 131 N.C. App. at 91,504 S.E.2d at 817, was predicated upon the existence of a right to
direct appeal from an order approving a compromise settlement
agreement (although “the Full Commission cannot set aside a
compromise settlement except under limited circumstances[, t]his
statement in no way implies that a compromise settlement cannot be
appealed to this Court”). The subsequent amendment to G.S. § 97-
17(a) erected such a bar to that right of appeal. We conclude,
therefore, that the fifteen (15) day period for appeal is no longer
properly part of the calculation of when a compromise settlement
payment is timely. To the extent that this was the holding of
Felmet, it is superceded by the statutory change. We hold that
payment of a compromise settlement award must be made within 24
days to avoid imposition of a late payment penalty unless a “party
is able to show to the satisfaction of the Commission that there
has been error due to fraud, misrepresentation, undue influence or
mutual mistake.” G.S. § 97-17(a).
For the reasons discussed above, the decision of the
Commission, that payment of a compromise settlement agreement is
timely if made within 39 days, is reversed. The Commission's
decision not to impose a penalty on the present defendants is
reversed and this case is remanded for the Industrial Commission to
impose the statutory penalty.
Reversed and remanded.
Judges TIMMONS-GOODSON and TYSON concur.
Footnote: 1