Appeal and Error--appealability--interlocutory order--workers' compensation award
Defendants' appeal in a workers' compensation case is dismissed as an appeal from an
interlocutory order and there is no immediate right of appeal, because: (1) an opinion and award
that on its face contemplates further proceedings or which does not fully dispose of the pending
stage of the litigation is interlocutory, and the opinion in this case specifically reserved the issue
of the amount of plaintiff's compensation award pending a hearing to determine plaintiff's
average weekly wage at the time of his compensable injury; and (2) defendants' brief contains no
statements of the grounds for appellate review and no discussion of any basis for review of this
interlocutory order as required by N.C. R. App. P. 28(b)(4).
No brief filed for plaintiff-appellee.
Lewis & Roberts, P.L.L.C., by John H. Ruocchio and Timothy S.
Riordan, for defendant-appellants.
HUDSON, Judge.
Plaintiff, Jimmy Lewis Watts, was injured in his employment
with defendant Hemlock Homes of the Highlands, Inc. (“Hemlock
Homes”) on 26 September 1995. On 6 October 1995, defendants
executed an IC Form 60, recognizing plaintiff's right to
compensation and noting an average weekly wage of $480.00, yielding
a compensation rate of $320.01 per week. Defendant began making
payments to plaintiff at that rate.
On 4 November 1995, plaintiff returned to work for Hemlock
Homes and continued to work through 21 February 1996, at which timeplaintiff underwent surgery on his shoulder. On 26 February 1996,
defendants sent plaintiff a letter informing plaintiff that his
average weekly wage was $244.73, not $480.00, and which generated
a compensation rate of $161.16 per week. Subsequently, defendants
began paying plaintiff compensation at the rate of $161.16 per
week.
On 30 October 1998, plaintiff filed a motion along with the IC
Form 60 in the Superior Court in Jackson County seeking an order to
enforce the IC Form 60, which stated that plaintiff's average
weekly wage was $480.00. On 19 July 1999, after hearing arguments,
Judge J. Marlene Hyatt entered judgment ordering payment to
plaintiff in the amount of $29,517.88, which represented the past
compensation plaintiff would have received if paid at a
compensation rate of $320.01 per week, and ordered defendants to
continue paying plaintiff ongoing compensation, consistent with IC
Form 60, at the rate of $320.01 per week.
Defendant appealed this order to this Court, which vacated the
order, holding that the superior court exceeded its jurisdiction by
entering judgment and forcing payment of an amount of compensation
when such an amount was in dispute. Watts v. Hemlock Homes of the
Highlands, Inc., 141 N.C. App. 725, 544 S.E.2d 1, disc. review
denied, 353 N.C. 398, 547 S.E.2d 431 (2001).
On 17 February 1999, defendants filed an IC Form 24 seeking to
terminate plaintiff's compensation, contending that plaintiff had
been working and building houses since 26 January 1996. On 18
March 1999, a Form 24 hearing was held before Special Deputy
Commissioner Gina Cammarano. On 25 March 1999, Special DeputyCammarano entered an order stating that the Commission was unable
to reach a decision. Subsequently, on 4 May 1999, Special Deputy
Cammarano ordered defendants to immediately reinstate plaintiff's
temporary total disability compensation. On 12 May 1999,
defendants filed an IC Form 33 to request a hearing on both the 25
March 1999 and 4 May 1999 orders.
The matter was thereafter set for hearing before Deputy
Commissioner George T. Glenn, II. Following several hearings, on
31 October 2000, Deputy Glenn ordered that the compensation rate
should be paid pursuant to the IC Form 60 in the amount of $320.02
[sic] per week.
Defendants appealed to the Full Commission alleging that
plaintiff has worked, and continues to work, as a carpenter,
general contractor, and boom truck operator. The Full Commission
affirmed and modified Deputy Commissioner Glenn's order, finding
that plaintiff returned to work as of 31 March 2000. The Full
Commission, however, remanded the case for a hearing before a
Deputy Commissioner on the issues of “plaintiff's average weekly
wage at the time of plaintiff's compensable injury by accident and
plaintiff's resultant weekly compensation rate.”
Defendants now appeal to this Court arguing (1) that the
Commission erred in determining that plaintiff was temporarily
totally disabled from 21 February 1996 through 31 March 2000; (2)
that the Commission applied an incorrect standard for determining
plaintiff's period of disability; (3) that the Commission failed to
make material findings of fact; and (4) the Commission's findings
of fact and conclusions of law are insufficient for this Court todetermine the rights of the parties to this controversy. However,
for the following reasons, we dismiss this appeal as interlocutory.
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.” G.S. . 97-86 (2001). Parties have a right to
appeal any final judgment of a superior court. G.S. . 7A-27
(2001). Therefore, an appeal as of right can arise only from a
final order of the Industrial Commission. Ratchford v. C.C.
Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002).
“A final judgment is one that determines the entire
controversy between the parties, leaving nothing to be decided in
the trial court.” Id. We have said that “[a]n opinion and award
of the Industrial Commission is interlocutory if it determines one
but not all of the issues in a workers' compensation case.” Id;
see also Fisher v. E.I. DuPont De Nemours, 54 N.C. App. 176, 177-
78, 282 S.E.2d 543, 544 (1981) (holding that an order is not final
where the amount of compensation is not determined). Moreover,
while we recognize that a workers' compensation claim may continue
under an open award for many weeks or even years, an opinion and
award that on its face contemplates further proceedings or which
does not fully dispose of the pending stage of the litigation is
interlocutory. See Riggins v. Elkay Southern Corp., 132 N.C. App.
232, 233, 510 S.E.2d 674 (1999) (“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 receiptof further evidence is interlocutory”).
Here, the Commission's opinion and award specifically reserved
the issue of the amount of plaintiff's compensation award pending
a hearing to determine plaintiff's average weekly wage at the time
of his compensable injury. Although the opinion determined that
plaintiff suffered a compensable injury by accident, the total
amount of compensation has yet to be determined, and the average
weekly wage is in dispute. There being nothing in the record to
indicate that the parties have resolved this issue independently
after the Commission entered its opinion, this appeal is clearly
interlocutory.
We note that Rule of Appellate Procedure 28(b)(4) requires the
appellant to include in its brief to this Court a “statement of
grounds for appellate review. . . . When an appeal is
interlocutory, the statement must contain sufficient facts and
argument to support appellate review on the ground that the
challenged order affects a substantial right.” Further, it is well
established that the appellant bears the burden of making such a
showing to the court, and that it is not up to the court to
construct the grounds for the parties. Jeffreys v. Raleigh Oaks
Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
The appellant's brief here contains no statement of the grounds for
appellate review, and no discussion of any basis for review of this
interlocutory order.
Appeal dismissed.
Judges TIMMONS-GOODSON and STEELMAN concur.
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