Workers' Compensation_rules for appeal to full Commission_findings by Commission
required
The Court of Appeals vacated sanctions against counsel in a workers' compensation case
and remanded for further proceedings where the Industrial Commission violated its own rules in
the appeal to the full Commission, and then simply upheld the findings of the deputy
commissioner rather than making its own findings and conclusions.
Brooks, Stevens & Pope, P.A., by Michael C. Sigmon and Matthew
P. Blake, for defendants Dayco Products, Inc./Dayco Products,
L.L.C./Mark IV Industries, Inc., Inc. and The Travelers
Property & Casualty Co.
Lewis & Roberts, P.L.L.C., by Winston L. Page, for defendants
Dayco Corp./M.A. Hanna, Inc./Polyone Corp. and National Union
Fire Insurance Co.
Teague, Campbell, Dennis & Gorham, L.L.P., by Thomas M. Clare,
for defendants M.A. Hanna Co. and Fireman's Fund Insurance.
Wallace & Graham, P.A., by Michael Pross, for plaintiffs.
HUDSON, Judge.
Plaintiffs filed claims alleging they had contracted
asbestosis and other occupational diseases as a result ofemployment with defendant-employer. The Industrial Commission
appointed Deputy Commissioner Douglas E. Berger to facilitate
hearings of these claims en masse. On 18 May 2001, Deputy
Commissioner Berger entered an order establishing procedures for
taking the testimony of non-medical expert witnesses and related
discovery. On 22 November 2002, Deputy Commissioner Berger entered
an oral order requiring the attorneys for defendant Dayco Products,
Inc./Dayco Products, L.L.C./Mark IV Industries, Inc. (“Dayco”) to
pay $10,000 to plaintiff's attorneys as a sanction for violating
the 18 May order. On 2 December 2002, defendants gave notice of
appeal to the Full Commission. On 10 December 2002, Deputy
Commissioner Berger reduced to writing his prior oral order, and
defendant appealed the written order on 24 December 2002.
On 28 January 2003, Industrial Commission Chairman Buck
Lattimore entered an order which allowed the interlocutory appeal
to go forward and referred it to the administrative panel of the
Full Commission for an expedited hearing. The panel entered an
administrative order on 11 April 2003, affirming and increasing the
sanction to $20,000.
On 2 May 2003, defendant filed a motion for reconsideration,
which the Full Commission denied on 9 May 2003. On 2 June 2003,
defendant appealed to this Court. For the reasons discussed below,
we vacate the order and remand to the Full Commission for further
proceedings.
This case arises from an order imposing sanctions against
counsel for defendant Dayco for violating an earlier discoveryorder. That order, from 18 May 2001, addressed the taking of
testimony from Dr. William Dyson, a non-medical expert, and related
discovery matters, and required in pertinent part the following:
Prior to the special set hearing, Defendants
are to provide Plaintiffs with 1) all
documents that were provided to Dr. Dyson upon
which he will render his expert opinion; 2)
all correspondence directed to Dr. Dyson[;]
and 3) a summary report provided by Dr. Dyson
as to his expected testimony.
The deputy commissioner further addressed the procedures for taking
expert testimony in later teleconferences and in oral and written
orders.
During his 21 June 2002 deposition, Dr. Dyson disclosed the
existence of photographs taken by defendants at the plaintiffs'
workplace in November 2001. Defendant's attorneys had not provided
these photographs to plaintiffs' counsel. On 29 July 2002,
plaintiffs moved to strike the testimony of Dr. Dyson based upon
the fact that defendants had failed to produce the photographs
prior to his deposition. On 22 November 2002, Deputy Commissioner
Berger entered his oral order imposing a sanction of $10,000 in
attorney's fees against counsel for defendant Dayco for failure to
comply with his 18 May 2001 order. Deputy Commissioner Berger made
the sanctions payable immediately and certified the interlocutory
order for immediate appeal.
Defendant Dayco appealed to the Full Commision. On 28 January
2003, Chairman Lattimore granted the request that the appeal go
forward in an order which stated: 1. Defendants' request for immediate appeal of
this Interlocutory Order to the Full
Commission is hereby GRANTED.
2. This matter is hereby referred to the
administrative panel of the Full Commission
for expedited hearing.
3. Deputy Commissioner Berger's Interlocutory
Order is hereby stayed pending issuance of an
Opinion and Award by the administrative panel
of the Full Commission.
On 11 April 2003, the Full Commission panel filed its order
affirming Deputy Commissioner Berger's order, but increasing the
amount of the sanctions to $20,000, payable immediately. The panel
made no findings of fact in the order. Defendant Dayco then moved
for reconsideration, which motion the Full Commission denied 9 May
2003.
The order imposing sanctions appealed here is interlocutory.
Generally, interlocutory orders are not immediately appealable.
Sharp v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999),
disc. review denied, 352 N.C. 150, 544 S.E.2d 228 (2000). However,
an order imposing sanctions may affect a substantial right, and
thus be immediately appealable. Hummer v. Pulley, Watson, King &
Lischer, P.A., 140 N.C. App. 270, 277, 536 S.E.2d 349, 353 (2000);
Walker v. Liberty Mut. Ins. Co., 84 N.C. App. 552, 554-55, 353
S.E.2d 425, 426 (1987).
In their appeal to this Court, defendant Dayco challenges the
procedure followed by the Full Commission, and the adequacy of the
order. Industrial Commission Rule 701 establishes processes and
procedures for appeals to the Full Commission. See Workers'
Compensation Rules of the North Carolina Industrial Commission,Rule 701. Pursuant to Rule 701, upon receipt of notice of appeal
of a decision of a deputy commissioner, the Full Commission will
supply the appellant with a Form 44 Application for Review, which
the appellant must complete, stating the specific grounds for
appeal, and file along with his brief within twenty-five days after
he receives the transcript. Appellee then has twenty-five days in
which to file its responsive brief. The Full Commission, in its
discretion, may waive the use of Form 44 and oral argument, and
reach its decision based on the record, assignments of error and
briefs. However, even though the Commission may waive the use of
Form 44, the rule specifically requires that grounds for appeal be
set forth with particularity.
Here, the 28 January 2003 order by Chairman Lattimore refers
the appeal to “the administrative panel of the Full Commission for
expedited hearing.” The appellant filed no Form 44 and none of the
parties filed briefs to the Full Commission. Our review of the
Workers' Compensation Act and the Commission's own rules discloses
no authority for this process. Although this appeal of the deputy
commissioner's 10 December 2002 order was interlocutory, it
involved review by the Full Commission of an order entered after a
hearing which contained findings of fact and conclusions of law.
We conclude that this Full Commission review was governed by Rule
701 and N.C. Gen. Stat. § 97-85. The Full Commission apparently
waived the filing of Form 44 and the holding of an oral argument in
the appeal, as permitted by Rule 701. However, Rule 701 also gives
appellant the right to file a brief in support of its argument, andthe Full Commission here gave neither defendant Dayco nor the other
parties any opportunity to be heard.
Dayco also argues that the Commission exceeded its authority
and violated its own rules by failing to make its own findings and
conclusions, and by failing to specify which of Dayco's attorneys'
actions constituted sanctionable conduct. Plaintiffs, on the other
hand, contend that the Commission acted properly by simply
upholding the findings of the deputy commissioner.
Numerous appellate court decisions in recent years have
established clearly that the Full Commission is the ultimate fact-
finder whether or not it reviews a “cold record.” N.C. Gen. Stat.
§ 97-85; Deese v. Champion Int'l Corp., 352 N.C. 109, 115, 530
S.E.2d 549, 552 (2000) (citing Adams v. AVX Corp., 349 N.C. 676,
680-81, 509 S.E.2d 411, 413-14 (1998)). Further, the Commission
must make findings of fact and conclusions of law on all issues
raised by the evidence which are necessary for a determination of
the matter. Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 139,
502 S.E.2d 58, 61-62, disc. review denied, 349 N.C. 228, 515 S.E.2d
700 (1998).
Here, we conclude that the Commission has not followed the Act
and its own rules, and has not carried out its duty to make
findings of fact and conclusions of law. Thus, we vacate the order
and remand so that it may do so.
Vacated and remanded for further proceedings.
Judges GEER and THORNBURG concur.
*** Converted from WordPerfect ***