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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
EDNA JO ROBERTS, Plaintiff-Employee, v. WAL-MART STORES, INC.
and/or SAM'S CLUB, Defendant-Employer, AMERICAN HOME ASSURANCE
Filed: 18 October 2005
Workers' Compensation--waiver of Form 44--requirement of setting forth grounds for
appeal with particularity
The Industrial Commission erred in a workers' compensation case by issuing an opinion
and award after plaintiff failed to file either assignments of error or a brief to the Full Commission,
because: (1) even though the Commission may waive the use of Form 44, the rule specifically
requires that grounds for appeal be set forth with particularity; and (2) plaintiff did not file a Form
44, brief, or any other document with the Full Commission setting forth grounds for appeal with
Appeal by defendants from an Opinion and Award entered 1 April
2004 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 20 September 2005.
The Kilbride Law Firm, PLLC, by Terry M. Kilbride, for
Young Moore and Henderson P.A., by Michael W. Ballance, for
Wal-Mart Stores, Inc. and American Home Assurance Company
(defendants) appeal from an Opinion and Award of the North Carolina
Industrial Commission (Full Commission) awarding Edna Jo Roberts
(plaintiff) medical compensation and total disability compensation
from 9 July 2000 through 12 September 2000. For the reasons below
we reverse and vacate the Commission's Opinion and Award.
Plaintiff is a high school graduate and on 8 July 2000 was
working for defendant's Sam's Club store in Asheville, NorthCarolina. Plaintiff had recently become qualified to drive a
school bus and had also begun working for the Buncombe County
school system. On 8 July 2000, while working in the Sam's Club
cafe, plaintiff felt a snap in her lower back as she was lifting a
bag-in-a-box of soft drink syrup weighing fifty-five pounds.
Plaintiff told her co-workers she could not continue with the
stocking activity and had difficulty completing the shift but did
not report the injury to defendants. Plaintiff felt she had pulled
a muscle and did not have a serious injury. She did not want to
report an injury because of a contest between stores to see which
could go the longest without a workplace accident.
On 10 July 2000, plaintiff woke up with such severe pain that
she was unable to go to work. Plaintiff did not return to work at
Sam's Club the following week and by 14 July 2000 informed
management at the store that she would be terminating her
employment in order to take care of her mother at home. However,
plaintiff did continue working for the Buncombe County school
Plaintiff first received medical treatment on 14 July 2000
from a Physician's Assistant at Asheville Family Health Center
where plaintiff regularly received medical care. On 25 July 2000,
plaintiff saw Dr. Andrew Rudins, a physiatrist at Southeastern
Sports Medicine, describing pain from her left lower back radiating
down her left leg to her knee and indicated that her leg tended to
give way. Dr. Rudins examined plaintiff and ordered an MRI. On 27 July 2000, plaintiff presented to the emergency room of
Memorial Mission Hospital screaming in pain, unable to tolerate any
position and complaining of spasms in her leg. Plaintiff was
examined by Dr. Allen W. Lalor and Dr. Gary A. Curran. Plaintiff
told the doctors about the incident at work, although she was not
sure when the injury had occurred since the severe pain did not
occur until 10 July 2000.
On 28 July 2000, plaintiff had an MRI which showed disc
protrusions at multiple levels in her lumbar spine. Dr. Keith M.
Maxwell, an orthopedic surgeon, was consulted and his physician's
assistant examined plaintiff on 29 July 2000. Dr. Maxwell felt
that plaintiff's symptoms stemmed from a disc herniation at L3-4,
and he recommended surgery. Dr. Maxwell performed surgery on
plaintiff to decompress the L3-4 interspace on
30 July 2000. Dr. Maxwell stated and the Commission found this
first surgery was causally related to the lifting injury on 8 July
On 12 September 2000, plaintiff returned to Dr. Maxwell with
complaints of a new pain in her right hip and leg that was
different from her previous pain symptoms. Plaintiff continued
working for the Buncombe County school system until the Spring of
2001. From 25 February 2001 through 2 May 2002, plaintiff was seen
by several doctors and underwent four additional surgeries to
relieve spinal compression and various herniations. On 23 January
2001 plaintiff completed a Form 18 and notified defendants of her
injury and claims.
On 8 July 2002, plaintiff's claims were heard before Deputy
Commissioner Morgan S. Chapman who filed an Opinion and Award in
this matter on 12 February 2003. The Deputy Commissioner held
plaintiff had suffered a compensable specific traumatic incident at
work in July 2000. However, the Deputy Commissioner concluded
plaintiff's claim should be denied for her failure to give timely
notice pursuant to N.C. Gen. Stat. § 97-22, which had been
prejudicial to defendants because of the intervening surgery.
Plaintiff filed Notice of Appeal to the Full Commission on 14
February 2003. Plaintiff, however, did not file a Form 44 or a
brief to the Full Commission. Defendant also did not file a brief
or a motion to dismiss to the Full Commission.
On 1 August 2004, the Full Commission issued an order waiving
oral argument of the parties and announced it would file a decision
based upon the record. Defendants petitioned the Full Commission
to allow them to present oral and written arguments on any issues
the Full Commission was going to consider on appeal. The
Commission never responded to defendants' petition and on 24
February 2004, the Full Commission filed an Opinion and Award in
The Full Commission found, as a result of the compensable
injury by accident, plaintiff was unable to earn the same or
greater wages in her regular employment or in any other employment
from 9 July 2000 through 12 September 2000. Furthermore, based
upon Dr. Maxwell's testimony, the Full Commission found plaintiff'sback problems after 12 September 2000 were related to preexisting
medical conditions and not causally related to the 8 July 2000
The Commission awarded plaintiff total disability compensation
from 9 July 2000 to 12 September 2000, subject to a deduction for
any wages received from the Buncombe County school system during
that period of time and instructed defendant to pay for all medical
expenses incurred as a result of the compensable injury by
accident. Defendants subsequently filed a Motion for
Reconsideration which was denied by the Commission on 27 May 2004.
The dispositive issue on appeal is whether the Full Commission
erred by issuing an Opinion and Award after plaintiff failed to
file either assignments of error or a brief to the Full Commission.
On 14 February 2003, plaintiff sent a letter to the North Carolina
Industrial Commission indicating she wished to appeal the Opinion
and Award of Deputy Commissioner Chapman. The letter reads:
Please consider this letter to be plaintiff's
appeal from the Opinion & Award dated February
12, 2003. We file this notice pursuant to
G.S. 97-85 and Rule 701 (1) of the Workers'
Compensation Rules. Thank you for your
Phillip Hopkins, Docket Director for the Industrial Commission,
acknowledged receipt of plaintiff's letter giving notice of appeal
in a letter sent 18 February 2003. Hopkins instructed plaintiff
that she must file a Form 44 within 25 days from receipt of the
transcript of the hearing before Deputy Commissioner Chapman. Plaintiff did not file a Form 44, nor did she file a brief to the
Full Commission. Rule 701(4) of the Workers' Compensation Rules of
the North Carolina Industrial Commission states:
[A]ppellee shall have 25 days from service of
appellant's brief within which to file a reply
brief . . . . When an appellant fails to file
a brief, appellee shall file his brief within
25 days after appellant's time for filing
brief has expired.
Workers' Comp. R. of N.C. Indus. Comm'n 701(4), 2005 Ann. R. (N.C.)
Defendants argue they were prejudiced by the Full Commission's
sudden declaration on 1 August 2003 that plaintiff's claims would
be decided without briefs or oral arguments and that its decision
would be based upon the record. We agree. The rules established
by the Industrial Commission governing the procedure by which
appeals are taken to the Full Commission provide that [f]ailure to
state with particularity the grounds for appeal shall result in
abandonment of such grounds, as provided in paragraph (3).
Workers' Comp. R. of N.C. Indus. Comm'n 701(2), 2005 Ann. R. (N.C.)
919, 943. Rule 701(3) then states, [p]articular grounds for
appeal not set forth in the application for review shall be deemed
abandoned, and argument thereon shall not be heard before the Full
Commission. Workers' Comp. R. of N.C. Indus. Comm'n 701(3), 2005
Ann. R. (N.C.) 919, 943. The rules do provide that the Industrial
Commission may in its discretion, waive the use of the Form 44.
Workers' Comp. R. of N.C. Indus. Comm'n 701(2), 2005 Ann. R. (N.C.)
919, 943. However, even though the Commission may waive the use
of Form 44, the rule specifically requires that grounds for appealbe set forth with particularity. Adams v. M.A. Hanna Co.
N.C. App. 619, 623, 603 S.E.2d 402, 405-06 (2004).
Here, plaintiff did not file a Form 44, brief, or any other
document with the Full Commission setting forth grounds for appeal
with particularity. The Full Commission apparently waived the
filing of Form 44 and expressly waived the holding of an oral
argument, as permitted by Rule 701. However, the portion of Rule
701 requiring appellant to state with particularity the grounds for
appeal may not be waived by the Full Commission. Without notice of
the grounds for appeal, an appellee has no notice of what will be
addressed by the Full Commission. The Full Commission violated its
own rules by failing to require that plaintiff state with
particularity the grounds for appeal and thereafter issuing an
Opinion and Award based solely on the record. For the foregoing
reasons, we reverse the Full Commission and vacate its Opinion and
Vacated and reversed.
Chief Judge MARTIN and Judge GEER concur.
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