Appeal by plaintiff from order entered 25 July 2002 by the
Full Commission of the North Carolina Industrial Commission. Heard
in the Court of Appeals 17 November 2003.
Pamela A. Hunter, for plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P., by Nicholas P. Valaoras,
for defendants-appellees.
MARTIN, Judge.
On 30 September 1992, plaintiff injured his back while working
in the stockroom of defendant Roses' store in Belmont, N.C. He was
paid workers' compensation benefits for temporary total disability
for two weeks, as well as compensation for medical expenses. On 27
September 1994, plaintiff filed N.C.I.C. Form 18 seeking additional
compensation for his alleged injury. Defendants denied the claim
and plaintiff filed N.C.I.C. Form 33 requesting that the claim be
assigned for hearing. The case was set for hearing before a deputy
commissioner on 21 March 1996, but was removed from the hearing
docket at the request of the parties in order to engage in
discovery and settlement discussions. Thereafter, the parties engaged in discovery and exchanged
correspondence concerning the case over a thirteen month period.
On 20 March 1997, defendants' counsel inquired of plaintiff's
counsel concerning plaintiff's request for medical treatment and
concerning settlement possibilities. Having received no response
to his inquiry, defendants' counsel wrote a follow-up letter on 22
April 1997 concerning the same issues. When plaintiff's counsel
did not respond to the 22 April 1997 letter, defendants moved to
dismiss plaintiff's claim with prejudice, pursuant to subsequently
superseded Commission Rule 613(3)
(See footnote 1)
, for plaintiff's failure to
prosecute the claim. On 25 June 1997, the deputy commissioner
entered an order in which she found that “[o]ver seven weeks has
elapsed since defendant's motion was filed, and no response has
been received by plaintiff,” and granted defendants' motion to
dismiss with prejudice.
On 1 July 1997, plaintiff filed N.C.I.C. Form 44 seeking
review of the deputy commissioner's order by the Full Commission.
Apparently, the Form 44 was misplaced by the Commission and was not
acknowledged until 15 December 2000. A hearing before the Full
Commission was twice continued, once upon motion of each of the
parties. Pending the hearing, defendants served additional
discovery on plaintiff, to which plaintiff failed to serve timely
responses. On 25 January 2002, plaintiff was ordered to serve full
and complete answers by 4 February 2002; the responses were servedon 14 February 2002. The matter was heard by the Full Commission
on 12 July 2002. On 25 July 2002, the Full Commission entered the
following order:
The Full Commission has reviewed the prior
Order based upon the record of the proceedings
before Deputy Commissioner Chapman and the
briefs and arguments on appeal. Having
reconsidered the material in the file, the
Full Commission affirms the Deputy
Commissioner's holding that plaintiff failed
to prosecute this case in a timely manner.
Therefore, this case is DISMISSED WITH
PREJUDICE. Furthermore, PLAINTIFF SHALL PAY
defendant's [sic] counsel a reasonable
attorney's fee of $500.00 pursuant to N.C.G.S.
97-88.1.
Commissioner Riggsbee concurred in the result, but issued a
separate opinion in which she stated:
I concur in the result reached by the
majority, but believe that the Full Commission
is required to make findings of fact and
conclusions of law to support our decision.
Plaintiff appeals from the order dismissing his claim.
________________________
Plaintiff's primary contention on appeal is that the
Commission abused its discretion and committed error of law when it
dismissed his claim with prejudice for failure to prosecute. After
careful review, we hold that the Full Commission failed to make
findings of fact and conclusions of law necessary to support its
order dismissing plaintiff's claim.
Pursuant to its power to efficiently administer the Workers'
Compensation Act, the Commission has inherent judicial authority to
dismiss a claim with or without prejudice for failure to prosecute.
Harvey v. Cedar Creek BP, 149 N.C. App. 873, 874, 562 S.E.2d 80, 81
(2002). At the time of the Full Commission hearing, thesuperseding Workers' Compensation Rule 613(1)(c) controlled the
disposition of this matter. Rule 613(1)(c) of the Workers'
Compensation Rules permits the dismissal of a claim with prejudice
for failure to prosecute upon proper notice and an opportunity to
be heard. Workers Comp. R. of N.C. Indus. Comm'n 613(1)(c), 2004
Ann. R. (N.C.) 901, 922.
Neither the Workers' Compensation Act nor the Industrial
Commission Rules provide further direction as to when a finding of
failure to prosecute is proper and what types of sanctions are
appropriate under the circumstances. Thus, this Court looks to
G.S. § 1A-1, Rule 41(b) for guidance.
See Harvey, 149 N.C. App. at
875, 562 S.E.2d at 81. Rule 41(b) of the North Carolina Rules of
Civil Procedure permits a defendant in a civil action to move for
dismissal when the plaintiff fails to prosecute his case. N.C.
Gen. Stat. § 1A-1, Rule 41(b) (2003). Where sanctions are entered,
a finding of failure to prosecute pursuant to Rule 41(b) requires
a determination by the trial court that “plaintiff or his attorney
'manifest[s] an intent to thwart the progress of [the] action' or
'engage[s] in some delaying tactic.'”
Spencer v. Albemarle
Hospital, 156 N.C. App. 675, 678, 577 S.E.2d 151, 153
(2003)(internal quotation omitted). Such a finding is a finding of
fact, and findings of fact by the Industrial Commission are
conclusive on appeal as long as there is any competent evidence to
support them.
Stone v. G & G Builders, 346 N.C. 154, 157, 484
S.E.2d 365, 367 (1997).
Once a failure to prosecute has been found, the Commission has
authority to impose appropriate sanctions.
See Harvey, 149 N.C.App. at 874, 562 S.E.2d at 81. Our courts have stated that
dismissal with prejudice is the most severe sanction available to
the court in a civil case, and thus, it should not be readily
granted.
See Wilder v. Wilder, 146 N.C. App. 574, 576, 553 S.E.2d
425, 427 (2001). This principle applies equally to the dismissal
of a workers' compensation claim at the Industrial Commission since
prosecution pursuant to the Workers' Compensation Act is an injured
worker's exclusive remedy.
See Harvey, 149 N.C. App. at 875, 562
S.E.2d at 82 (terminating plaintiff's “exclusive remedy when other
lesser sanctions were appropriate and available” is an abuse of
discretion);
Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132
N.C. App. 11, 16, 510 S.E.2d 388, 392-93 (sanctions by the
Commission should be imposed in light of North Carolina's public
policy behind the Workers' Compensation Act to provide swift and
certain benefits to an injured worker and not to deny benefits
based on “technical, narrow, or strict interpretation of its
provisions”),
disc. review denied, 350 N.C. 834, 538 S.E.2d 197
(1999).
Before a civil case may be involuntarily dismissed with
prejudice for failure to prosecute pursuant to N.C. Gen. Stat. §
1A-1, Rule 41(b) (2003), the trial court must address the following
three factors in its order:
(1) whether the plaintiff acted in a manner
which deliberately or unreasonably delayed the
matter; (2) the amount of prejudice, if any,
to the defendant [caused by the plaintiff's
failure to prosecute]; and (3) the reason, if
one exists, that sanctions short of dismissal
would not suffice.
Wilder, 146 N.C. App. at 578, 553 S.E.2d at 428. We find this rule
to be relevant to and consistent with the underlying public policy
of the Worker's Compensation Act, and thus apply these same
standards to the dismissal of a workers' compensation claim with
prejudice at the Industrial Commission for failure to prosecute.
See Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 482, 374 S.E.2d
610, 613 (1988)(Full Commission “is not an appellate court” and
thus, is required “to make detailed findings of fact and
conclusions of law with respect to every aspect of the case before
it”).
Cf.
Matthews, 132 N.C. App. at 17, 510 S.E.2d at 393
(holding that before a case may be dismissed pursuant to Worker's
Compensation Rule 802, permitting dismissal for violation of any
Worker's Compensation Rule, the Industrial Commission must consider
(1) the appropriateness of alternative sanctions less severe than
dismissal with prejudice, and (2) the proportionality of dismissal
to the actions meriting sanction).
In this case, neither the deputy commissioner nor the Full
Commission made findings of fact or conclusions of law addressing
any of the above cited factors. Thus, the order is not sufficient
as a matter of law to dismiss the plaintiff's claim with prejudice
for failure to prosecute.
Spencer, 156 N.C. App. at 678-79, 577
S.E.2d at 153-54 (dismissal vacated where trial court did not make
finding regarding whether it considered lesser sanctions and did
not make finding regarding whether plaintiff deliberately or
unreasonably delayed the matter);
Wilder,
146 N.C. App. at 577-78,
553 S.E.2d at 427-28 (dismissal vacated where trial court did not
consider in the record whether lesser sanctions were appropriate);
see also Harvey, 149 N.C. App. at 875, 562 S.E.2d at 82 (affirming
the Full Commission's order to set aside a deputy commissioner's
order dismissing a complaint with prejudice for failure to
prosecute because lesser sanctions were available and appropriate).
Accordingly, the Full Commission erred as a matter of law when it
summarily affirmed the deputy commissioner's order dismissing
plaintiff's claim with prejudice for failure to prosecute without
making the necessary findings of fact and conclusions of law to
support its order. The order of dismissal is reversed and this
cause remanded to the Industrial Commission for proceedings
consistent with this opinion.
Reversed and remanded.
Chief Judge EAGLES and Judge LEVINSON concur.
Footnote: 1