LEON McNAIR,
Employee-Plaintiff,
v. North Carolina
Industrial Commission
I.C. File No. 248030
SUPERIOR CONSTRUCTION
COMPANY, INC.,
Employer-Defendant,
and
AETNA CASUALTY AND SURETY
COMPANY,
Carrier-Defendant.
Leon McNair, pro se.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Edward L.
Eatman, Jr. and W. James Flynn, for defendants-appellees.
CALABRIA, Judge.
This is the third appeal arising out of a workers'
compensation action initiated by Leon McNair (“plaintiff”) against
employer Superior Construction Company, Inc. (“defendant”). In an
opinion and award filed 19 September 1996, the North Carolina
Industrial Commission (“Commission”) found that plaintiff did not
sustain a compensable injury by accident and denied plaintiff'sclaim. On appeal, this Court affirmed the Commission's ruling.
McNair v. Superior Construction Co., 127 N.C. App. 556, 492 S.E.2d
389 (1997).
Plaintiff subsequently filed a motion with the Commission
seeking review of his case. The Commission denied plaintiff's
motion on 26 September 2002, and plaintiff appealed to this Court.
Plaintiff's appeal was dismissed on the grounds that plaintiff's
assignments of error failed to relate to the order from which
plaintiff appealed in violation of N.C. R. App. P. 3(d). McNair v.
Superior Constr. Co., 161 N.C. App. 347, 588 S.E.2d 584 (2003). A
month after this Court rendered its decision, plaintiff filed a
“Motion for Reconsideration and Investigation” with the Commission.
The Commission dismissed plaintiff's motion by order filed 24
February 2004 on the grounds that “[p]laintiff's claim is closed
and all appeals have been exhausted.” Plaintiff appeals.
In his first two assignments of error, plaintiff contends the
Commission's dismissal of his motion for reconsideration and
investigation is contrary to law. In the accompanying arguments in
the brief, however, plaintiff actually argues that the Commission
“[c]ondoned the [d]efrauding of [plaintiff]” and that defendants
“have committed fraud and perjury,” respectively. “When, as here,
the argument in the brief does not correspond to the assignment of
error, that assignment should be deemed abandoned under Rule 28 of
the Rules of Appellate Procedure.” State v. Purdie, 93 N.C. App.
269, 278, 377 S.E.2d 789, 794 (1989). Plaintiff next challenges the Commission's statement in its 24
February 2004 order that “plaintiff's claim is closed and all
appeals have been exhausted[;] [p]laintiff's appeal to the North
Carolina Court of Appeals and all pending motions are hereby
dismissed[.]” Plaintiff cites N.C. Gen. Stat. §§ 97-86, 97-88.2,
7A-26 and 7A-29 to support his contention that the statement is
contrary to law. The statutes plaintiff cites, however, do not
permit the reopening of cases in which the Commission has issued an
opinion and award subsequently upheld by this Court on appeal.
Plaintiff has not shown the Commission erred in denying his motion
for reconsideration. This assignment of error is without merit.
Plaintiff's fourth and final argument contends the
Commission's refusal to consider and investigate “conclusive
evidence proving the Full Commission's 19 September 1996 Opinion
and Award was legally and factually marred by fraud . . . is
contrary to law.” Plaintiff argues the evidence in the record and
in the appendix to his brief shows that he has been defrauded of
his workers' compensation benefits. Plaintiff, however, is
essentially seeking to challenge the Commission's 19 September 1996
opinion and award, which is not the subject of the instant appeal.
We must therefore dismiss this assignment of error. See N.C. R.
App. 3(d) (2004).
Affirmed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***