BARBARA PAGE,
Employee,
Plaintiff,
v. North Carolina
Industrial Commission
Nos. 696704 and 055882
UNC-CHAPEL HILL
Employer,
KEY RISK MANAGEMENT SERVICES,
Third Party Administrator,
and
DANKA HOLDINGS,
Employer,
ZURICH AMERICAN INSURANCE GROUP,
Carrier,
Defendants.
Law Offices of George W. Lennon, by George W. Lennon, for
plaintiff-appellee.
Attorney General Roy Cooper, by Assistant Attorney General
Mark X. Sneed, for defendant-appellant UNC-Chapel Hill.
Lewis & Roberts, P.L.L.C., by Richard M. Lewis and Jeffrey A.
Misenheimer, for defendant-appellee Danka Holdings.
McGEE, Judge.
The University of North Carolina at Chapel Hill (UNC) and Key
Risk Management Services (collectively defendants) appeal the 10May 2004 opinion and award of the Industrial Commission (the
Commission), in which the Commission awarded Barbara Page
(plaintiff) temporary total disability at the rate of $388.35 per
week from 10 May 2000, and continuing until further order of the
Commission.
Plaintiff began working for UNC in August 1995. Plaintiff
served as a secretary to the chairman of the Pediatrics Department
throughout her employment at UNC. Her job involved repetitive use
of her hands, wrists, and arms. Plaintiff filed a claim for
bilateral carpal tunnel syndrome as a result of her employment on
10 October 1996. UNC accepted plaintiff's workers' compensation
claim and paid plaintiff temporary total disability and permanent
partial disability benefits.
Plaintiff left her employment at UNC and sought employment that
required reduced use of her hands, wrists, and arms. She was first
employed by Ikon, where she sold copiers. In 1998, she began work
with Danka Holdings (Danka), where she sold copiers and office
equipment. Unlike plaintiff's position with UNC, paperwork and
keyboarding were not the largest part of plaintiff's job with Danka.
However, during the course of her employment with Danka, plaintiff's
job duties changed. Plaintiff was issued a new laptop computer and
was required to do more typing, which increased her hand and arm
pain. Shortly thereafter, on the evening of 26 April 2000,
plaintiff was working from her home, typing on the laptop, when she
experienced severe arm pain.
Following this incident, plaintiff filed a claim against Dankafor injury by accident or occupational disease. Danka denied
plaintiff's claim. Plaintiff also filed a claim against UNC for
change of condition pursuant to N.C. Gen. Stat. § 97-47, which UNC
denied.
A deputy commissioner found that "[t]he greater weight of the
medical evidence [was] that the last injurious exposure for
plaintiff's [upper extremity injuries] occurred while plaintiff was
employed with defendant-employer Danka." The deputy commissioner
further found that plaintiff's employment at Danka substantially
aggravated plaintiff's pre-existing non-disabling bilateral hand and
arm pain. Plaintiff was awarded temporary total disability benefits
from Danka at a compensation rate of $388.35 per week. (R.p. page
24) UNC was dismissed as a defendant.
Danka appealed to the Commission. The Commission reversed the
deputy commissioner's opinion and award, finding that plaintiff was
not injured by her job duties at Danka. The Commission further found
that "plaintiff underwent a compensable change of condition of her
upper extremity condition incurred while employed at UNC that is
unrelated to her employment with Danka." In an opinion and award
entered 22 September 2003, the Commission ordered UNC to continue
paying temporary total disability benefits to plaintiff, and to pay
for all medical expenses incurred by plaintiff as a result of her
upper extremity condition.
Upon plaintiff's motion, we dismiss defendants' appeal for two
reasons. First, in violation of Rule 28 of our Rules of Appellate
Procedure, defendants do not refer to the "assignments of errorpertinent to the question" defendants raise on appeal. N.C.R. App.
P. 28(b)(6) ("Immediately following each question [presented on
appeal] shall be a reference to the assignments of error pertinent to
the question, identified by their numbers and by the pages at which
they appear in the printed record on appeal."). "The North Carolina
Rules of Appellate Procedure are mandatory and 'failure to follow
these rules will subject an appeal to dismissal.'" Viar v. N. C.
Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005)
(quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298,
299 (1999)).
Additionally, defendants also fail to argue their assignments of
error on appeal. Defendants assigned as error two of the Commission's
conclusions of law, but defendants abandoned these assignments of
error by failing to argue them in their brief. N.C.R. App. P.
28(b)(6). As these two assignments of error were defendants' only
assignments of error, we dismiss defendants' appeal.
Dismissed.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***