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1. Appeal and Error_record and brief-_multiple violations
Although not dispositive, the Department of Correction violated the Rules of Appellate Procedure by submitting an unmanageable record with an inadequate index; by placing its assignments of error at the wrong point in the record and not including any record references; by including legal argument with citations with its non-argumentative summary of the facts; and by not including pertinent record page numbers with the reference to assignments of error in the brief. DOC's conditional motion to amend the record and brief was not sufficient to remedy all of the violations.
2. Appeal and Error_appealability_denial of stay_interlocutory order
An appeal was interlocutory where the matter arose from a termination of workers' compensation benefits, subsequent orders, and the denial of a request for a stay. The order appealed from merely temporarily determines a portion of the action before further proceedings that may negate that order.
Brantley, Jenkins, Riddle, Hardee & Hardee, by J. Christopher
Brantley and Gene A. Riddle, for plaintiff-appellee.
Attorney General Roy Cooper, by Assistant Attorney General Gary A. Scarzafava, for defendant-appellant.
In this workers' compensation case, defendant, the North Carolina Department of Correction ("DOC"), appeals from the Industrial Commission's denial of DOC's motion for a stay of a decision of the Commission's Executive Secretary reinstating benefits after DOC unilaterally ceased paying benefits to plaintiff Cedric Perry for his admittedly compensable injury. Because thisappeal is interlocutory and does not involve a substantial right that will be lost absent immediate review, we dismiss the appeal.
After reconsideration, IT IS HEREBY
ORDERED that the April 23, 2004 Order is
affirmed and remains in full force and effect.
It is noted that the defendants may
appeal this Administrative Order on this
significant issue. The defendants, however,
shall comply with this Order by issuing
payments to the plaintiff, and then may
request a credit if there is a different
outcome following a full evidentiary hearing.
On 3 August 2004, DOC filed a request for a hearing de novo and asked that the case be placed on the hearing docket as soon as possible. DOC also filed a separate request for a stay of the 23 July 2004 administrative order. On 18 October 2004, the parties appeared for the de novo hearing before Deputy Commissioner Philip A. Baddour, III. At the hearing, DOC contended it had not yet complied with the 23 July 2004 order because the Executive Secretary had not ruled on its request for a stay. Also on 18 October 2004, the Executive Secretary denied DOC's motion for a stay. When Deputy Commissioner Baddour received the Executive Secretary's denial on 19 October 2004, he wrote the parties that the issue "whether defendant may properly fail to comply with an administrative order while a request for a stay is pending, . . . is now moot because the Executive Secretary has now denied defendant's request for a stay." The Deputy Commissioner stated: "I trust that the defendant will now comply with the administrative Order of July 23, 2004." He stated that if DOC did not comply, the proper procedure would be for plaintiff to file a formal motion to show cause directed to Chief Deputy Commissioner Stephen T. Gheen. The Deputy concluded that "[a]fter the issue of defendant's failure to comply with the July 23, 2004 Order has been resolved, the parties should request that the hearing of this matter by the undersigned be reconvened to address all other pending issues."
On 29 October 2004, DOC filed a request pursuant to Rule 703 of the Workers' Compensation Rules seeking a stay from the Executive Secretary's administrative order. (See footnote 1) On 1 November 2004, plaintiff filed a motion to show cause why DOC should not be held in civil contempt for willful refusal to comply with the 23 April2004 order of the Executive Secretary. Plaintiff sought an order that DOC immediately pay plaintiff the past due temporary total disability benefits, a 10% penalty on all amounts more than 14 days past due, attorneys' fees, and "sanctions, the amount to be determined by the Industrial Commission." The next day, DOC forwarded a letter to Deputy Commissioner Baddour making an "informal request that [he] voluntarily step down as the Deputy Commissioner in this case," arguing that "further proceedings before [him] would constitute something less than the true de novo hearing for the parties on the central issue of whether benefits are owed." The record contains no order regarding plaintiff's motion to show cause or defendant's "informal request."
On 19 November 2004, Buck Lattimore, Chairman of the Industrial Commission, filed an order denying DOC's request for a stay of the three administrative orders filed by the Executive Secretary on 23 April 2004, 23 July 2004, and 18 October 2004. On the same date, DOC filed a notice of appeal from that denial. On 14 December 2004, DOC filed an amended notice of appeal stating:
NOW COMES the Defendant-Employer, N.C. DEPARTMENT OF JUVENILE JUSTICE, who hereby gives NOTICE OF APPEAL to the NORTH CAROLINA COURT OF APPEALS from the ORDER for the Full Commission, filed by Chairman Lattimore on November 18, 2004. Defendant-Employer asserts that it has exhausted its administrative remedy pursuant to I.C. Rule 703, and that it is entitled to appeal the ORDER of the Full Commission pursuant to Section 97-86 and because said ORDER affects a substantial right.
Prior to the filing of the briefs in this appeal, plaintiff
moved to dismiss the appeal as interlocutory. In its responseopposing this motion, DOC asserted that it was appealing a
sanctions order and, therefore, was entitled to proceed
interlocutorily. See Adams v. M.A. Hanna Co., 166 N.C. App. 619,
623, 603 S.E.2d 402, 405 (2004) ("[A]n order imposing sanctions may
affect a substantial right, and thus be immediately appealable.").
Based on plaintiff's motion and DOC's response, the motion was
The appellate briefs, however, filed nearly a month after the motion was denied, showed that DOC in fact was appealing only from Chairman Lattimore's order denying DOC's motion for a stay of the order compelling payment of benefits and not from any imposition of a sanction. DOC acknowledges that "the parties are entitled to a de novo, formal (evidentiary) hearing on the issue whether Plaintiff-Appellee is entitled to benefits. . . . By this appeal, the Appellant-Defendant is not requesting to delay that hearing." Since DOC has not appealed from any sanction order, we must, therefore, determine whether there is another basis for jurisdiction in this Court.
"An appeal from an opinion and award of the Industrial Commission is subject to the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions. Parties have a right to appeal any final judgment of a superior court. Thus, an appeal of right arises only from a final order or decision of the Industrial Commission." Ratchford v. C.C. Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002) (internal citations and quotation marks omitted). Adecision of the Industrial Commission "is interlocutory if it determines one but not all of the issues in a workers' compensation case." Id. A decision that "on its face contemplates further proceedings or which does not fully dispose of the pending stage of the litigation is interlocutory." Watts v. Hemlock Homes of the Highlands, Inc., 160 N.C. App. 81, 84, 584 S.E.2d 97, 99 (2003).
Our Court has already held that an order denying a stay is an interlocutory order not subject to immediate appeal: "Defendants cite no authority for the proposition that denial of a stay is appealable. We find no such authority in North Carolina. We do, however, find caselaw in other jurisdictions holding that the denial of a stay is not immediately appealable." Howerton v. Grace Hosp., Inc., 124 N.C. App. 199, 201, 476 S.E.2d 440, 442-43 (1996). In this case, DOC has not addressed Howerton or cited any authority justifying an immediate appeal of the denial of a stay.
Instead, DOC argues that the denial of the stay deprives it of a substantial right that will be lost absent immediate review. See id., 476 S.E.2d at 443 (holding, in an appeal from denial of a stay, that "defendants must show that the trial court's decision deprives them of a substantial right which will be lost absent immediate review"). Our cases have established a two-part test for determining whether an interlocutory order affects a substantial right. First, the right itself must be substantial. Ward v. Wake County Bd. of Educ., 166 N.C. App. 726, 729, 603 S.E.2d 896, 899 (2004), disc. review denied, 359 N.C. 326, 611 S.E.2d 853 (2005). Second, the deprivation of that substantial right must potentiallywork injury if not corrected before appeal from a final judgment. Id. at 729-30, 603 S.E.2d 899.
DOC argues that a substantial right is involved because it will be required to pay benefits prior to any determination that such benefits are due and that if these payments are later determined not to be due, then there "is no probability of recovery." DOC also argues that these circumstances mean that the denial of the stay "[i]n effect determines the action and prevents a judgment from which appeal might be taken" under N.C. Gen. Stat. § 7A-27(d)(2) (2005). We disagree.
These same circumstances arise in almost every case in which a workers' compensation defendant fails to prevail in connection with a Form 24 request to terminate benefits. (See footnote 2) To allow a defendant to take an interlocutory appeal from any requirement that it continue to pay benefits pending Commission proceedings would result in precisely the "'yo-yo' procedure, up and down, up and down," which this Court has held "works to defeat the very purpose of the Workers' Compensation Act." Hardin v. Venture Constr. Co., 107 N.C. App. 758, 761, 421 S.E.2d 601, 602-03 (1992). Even if, as DOC apparently assumes, the case could proceed on its merits while the interlocutory appeal was pending, this Court would ultimately be asked to decide very similar issues twice, once on the limitedadministrative record and a second time on a full record. See Berger v. Berger, 67 N.C. App. 591, 595, 313 S.E.2d 825, 828, disc. review denied, 311 N.C. 303, 317 S.E.2d 678 (1984) (observing that the rule prohibiting interlocutory appeals is intended "to prevent delay and expense from fragmentary appeals and to expedite the administration of justice").
In other contexts when a party has been required to make payments pendente lite, this Court has nonetheless held that no substantial right exists to justify an interlocutory appeal. See, e.g., Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001) ("Interlocutory appeals that challenge only the financial repercussions of a separation or divorce generally have not been held to affect a substantial right."); cf. Berger, 67 N.C. App. at 600, 313 S.E.2d at 831 (holding that a defendant could be held in contempt for failing to pay "a nonappealable pendente lite award" because payment of such an award could not be stayed pending an interlocutory appeal by the posting of a bond). When the sole issue is the payment of money pending the litigation, we see no reason why a different result should occur in workers' compensation cases.
N.C. Gen. Stat. § 7A-27(d)(2), also cited by DOC, permits an immediate appeal only when the ruling being appealed has effectively determined the entire action. The interlocutory order being appealed in this case, however, merely temporarily determines a portion of the action before further proceedings come about that may negate that order and does not, therefore, justify aninterlocutory appeal. Cf. Lee County Bd. of Educ. v. Adams Elec., Inc., 106 N.C. App. 139, 141-42, 415 S.E.2d 576, 577 (1992) (where the trial court had not yet determined if the parties had entered into an enforceable contract requiring arbitration, an order granting a preliminary injunction enjoining arbitration did not "determine the action").
We note further that had DOC proceeded in an orderly fashion rather than with an interlocutory appeal of the denial of a stay, N.C. Gen. Stat. § 97-86 (2005) provides that upon appeal "from the decision of the Commission, . . . said appeal or certification shall operate on a supersedeas except as provided in G.S. 97-86.1, and no employer shall be required to make payment of the award involved in said appeal or certification until the questions at issue therein shall have been fully determined in accordance with the provisions of this Article." Further, when an employer meets the requirements of N.C. Gen. Stat. § 97-42 (2005), it may receive a credit for overpayments. Moretz v. Richards & Assocs., Inc., 316 N.C. 539, 542, 342 S.E.2d 844, 846 (1986) ("Because defendants accepted plaintiff's injury as compensable, then initiated the payment of benefits, those payments were due and payable and were not deductible under the provisions of section 97-42, so long as the payments did not exceed the amount determined by statute or by the Commission to compensate plaintiff for his injuries." (emphasis added)). Indeed, the Executive Secretary specifically provided that DOC "shall comply with this Order by issuing payments to theplaintiff, and then may request a credit if there is a different outcome following a full evidentiary hearing."
With respect to DOC's alternative contention _ included in the response to the motion to dismiss _ that it is appealing from the imposition of a sanction, that brief when read in conjunction with the record reveals that no sanction is at issue. While the Executive Secretary ordered reinstatement of the unilaterally suspended benefits, she noted that DOC had raised a "significant issue" and did not impose any sanctions. The only possible sanction reflected in the record is the Executive Secretary's provision in her first order that defendant "pay a 10% penalty for all sums not paid within 14 days of date due." DOC has not, however, made any argument in its assignments of error or in its brief regarding the 10% penalty. Without appeal of a sanction, no substantial right exists justifying interlocutory review.
Judges WYNN and McGEE concur.
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