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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.
ANNE WADE, Employee-Plaintiff, v. CAROLINA BRUSH MANUFACTURING
CO., Employer-Defendant, and NORTH CAROLINA INSURANCE GUARANTY
ASSOCIATION, Successor in Interest to Reliance Insurance Co.,
Filed: 20 November 2007
Workers' Compensation--failure to comply with Rules--no statement of grounds for
appeal--pro se litigant--waiver in interest of justice--abuse of discretion
The authority vested in the Industrial Commission under Rule 801 to waive violations of
its Rules in the interest of justice is discretionary rather than obligatory, but must involve a sense
of overall justice encompassing the interests of all parties and the goals of the Workers'
Compensation Act. Here, the Industrial Commission abused its discretion by waiving a pro se
plaintiff's non-compliance with the requirement of a statement of the grounds for the appeal in
such a way that defendant first learned of the grounds for appeal when it received the Opinion
Appeal by defendants from an Opinion and Award entered 23
February 2006 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 6 March 2007.
No brief filed for plaintiff-appellee.
Mullen, Holland, & Cooper, P.A., by James R. Martin, for
The Commission abused its discretion by invoking the
provisions of Rule 801 to waive compliance with Rule 701 of the
Rules of the North Carolina Industrial Commission. See Workers'
Comp. R. Of N.C. Indus. Comm'n 701(2) & (3), 2007 Ann. R. (N.C.)
1038; Workers' Comp. R. Of N.C. Indus. Comm'n 801, 2007 Ann. R.
(N.C.) 1041. We reverse and vacate the Commission's Opinion and
I. Factual Background
On 29 November 1999, Anne Wade (plaintiff) injured her right
hand in the course of her duties in her employment with Carolina
Brush Manufacturing Company (defendant). In early 2003, plaintiff
sought treatment for pain in her neck extending into her right arm.
She was diagnosed with a degenerative disc disease in her cervical
spine. This condition ultimately resulted in a pinched nerve,
which was the cause of her pain. Plaintiff worked continuously
through May 2003 while undergoing non-invasive pain management. On
10 June 2003, plaintiff began a medical leave, during which she
underwent surgery to address her cervical condition.
Plaintiff filed a Form 33 with the North Carolina Industrial
Commission on 29 July 2003, seeking a determination that her
cervical condition and required treatment were caused by her work-
related injury of 29 November 1999.
During a post-surgical exam in August 2003, plaintiff reported
some continuing weakness and numbness in her right arm but not a
lot of pain. On 2 September 2003, plaintiff returned to work on
a half-day basis. She resumed working full-time on 2 October 2003.
II. Procedural History
On 24 August 2004, plaintiff's claims were heard before Chief
Deputy Commissioner Stephen T. Gheen, who filed an Opinion and
Award in this matter on 1 March 2005. Plaintiff's surgeon opined
that the 1999 accident was not the cause of the degenerative disc
condition but trauma such as the 1999 incident can aggravate the
condition and cause nerve injury. The Deputy Commissioner deniedworkers' compensation benefits on the basis that plaintiff failed
to prove that her cervical condition was aggravated by her 1999
injury. Plaintiff's attorney subsequently moved to withdraw as
attorney of record.
Plaintiff filed a pro se
notice of appeal to the Full
Commission on 11 March 2005. On 18 March 2005, the docket director
for the Industrial Commission acknowledged receipt of plaintiff's
notice of appeal and advised plaintiff that a Form 44 must be
filed within twenty-five days from receipt of the transcript. The
transcript was mailed on or about 16 May 2005. Plaintiff never
filed a Form 44 or a brief with the Commission. On 3 August 2005,
defendants moved to dismiss plaintiff's appeal before the Full
Commission, with prejudice, because of plaintiff's failure to file
a Form 44, a brief, or a request for an extension of time.
In denying the defendants' motion to dismiss,
(See footnote 1)
[A]lthough plaintiff has failed to satisfy the
requirements of Workers' Comp. Rules 701(2)
and (3) that plaintiff state the grounds of
her appeal with particularity within twenty-
five days after receiving the transcript of
evidence in the present action, the interest
of justice obligates the Commission, in its
discretion, to waive the requirements of Rule
701(2) and (3) pursuant to . . . Rule 801 in
light of plaintiff's status as a pro se
appellant. The Full Commission concludes that
plaintiff has met all statutory requirements
to pursue her appeal, and that any failure by
plaintiff to satisfy the additional
requirements set forth in the Commission's
workers' compensation rules is excusedpursuant to those same rules. It follows that
dismissal of plaintiff's appeal in the present
action pursuant to Workers' Comp. Rule
613(1)(c) would be inappropriate.
On 23 February 2006, the Full Commission issued an Opinion and
Award, concluding as a matter of law that plaintiff properly
applied for review . . . in accordance with N.C. Gen. Stat. § 97-
85. The Commission reversed the Opinion and Award of the Deputy
Commissioner and awarded plaintiff disability compensation and
medical treatment as reasonably required to effect a cure, give
relief, or lessen the period of her disability. The Full
Commission concluded that the plaintiff suffered an injury on 29
November 1999 in which she injured her right hand and cervical
spine[,] and such injury was compensable under the Workers'
Compensation Act. Chairman Lattimore dissented, asserting that the
claim should be dismissed for failure to file a Form 44, or to
state with particularity the grounds for appeal. Defendants
The dispositive issue on appeal is whether the Commission
complied with the terms of the Workers' Compensation Act and its
own procedural rules when it invoked the provisions of Rule 801 to
overlook plaintiff's non-compliance with Rule 701 of the Rules of
the North Carolina Industrial Commission. We hold that the
Commission did err and reverse the decision of the Commission.
Industrial Commission Rule 701 states in part:
(2) After receipt of notice of appeal, the
Industrial Commission will supply to the
appellant a Form 44 Application forReview upon which appellant must state
the grounds for the appeal. The grounds
must be stated with particularity,
including the specific errors allegedly
committed by the Commissioner or Deputy
Commissioner and, when applicable, the
pages in the transcript on which the
alleged errors are recorded. Failure to
state with particularity the grounds for
appeal shall result in abandonment of
such grounds, as provided in paragraph
(3). Appellant's completed Form 44 and
brief must be filed and served within 25
days of appellant's receipt of the
transcript or receipt of notice that
there will be no transcript, unless the
Industrial Commission, in its discretion,
waives the use of the Form 44. . . .
(3) Particular 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
Workers' Comp. R. of N.C. Indus. Comm'n 701(2) & (3), 2007 Ann. R.
(N.C.) 1038 (emphasis added). Thus, the penalty for non-compliance
with the particularity requirement is waiver of the grounds, and,
where no grounds are stated, the appeal is abandoned. See Roberts
v. Wal-Mart Stores, Inc., 173 N.C. App. 740, 744, 619 S.E.2d 907,
910 (2005); Adams v. M.A. Hanna Co., 166 N.C. App. 619, 623-24, 603
S.E.2d 402, 405-06 (2004).
The North Carolina Industrial Commission has
the power not only to make rules governing its
administration of the act, but also to
construe and apply such rules. Its
construction and application of its rules,
duly made and promulgated, in proceedings
pending before the said Commission, ordinarily
are final and conclusive and not subject to
review by the courts of this State, on an
appeal from an award made by said Industrial
Winslow v. Carolina Conference Ass'n, 211 N.C. 571, 579-80, 191
S.E. 403, 408 (1937)(emphasis added); see also Shore v. Chatham
Mfg. Co., 54 N.C. App. 678, 681, 284 S.E.2d 179, 181 (1981).
While the construction of statutes adopted by those who execute
and administer them is evidence of what they mean, that
interpretation is not binding on the courts. Vernon v. Steven L.
Mabe Builders, 336 N.C. 425, 433, 444 S.E.2d 191, 195
(1994)(citations and internal quotations omitted).
A. Rule 701 and Roberts
In Roberts v. Wal-Mart Stores, Inc., 173 N.C. App. 740, 619
S.E.2d 907 (2005), this Court discussed in detail the ramifications
of a party's failing to file a Form 44 or any document setting
forth with particularity the grounds for an appeal to the Full
Commission. Roberts' claim for workers' compensation benefits was
denied by the Deputy Commissioner, and she gave notice of appeal.
Id. at 742, 907 S.E.2d at 909. However, she failed to file a Form
44 with the Commission setting forth the basis of her appeal and
did not file a brief with the Commission. Id. The Full Commission
entered an Opinion and Award in favor of Roberts. Id. at 742-43,
907 S.E.2d at 909. On appeal, this Court reversed the Full
Commission and vacated its Opinion and Award. Id. at 744, 907
S.E.2d at 910. While Rule 701(2) provides that the Commission, in
its discretion, may waive the requirement of filing a Form 44, Rule
701 specifically requires that grounds for appeal be set forth
with particularity. Id. (quoting Adams, 166 N.C. App. at 623, 603
S.E.2d at 406) (internal quotations omitted). [T]he 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.
Roberts, 173 N.C. App. at 744, 619 S.E.2d at 910 (emphasis added).
The underlying facts in the instant case are identical to
Roberts, which mandated that the decision of the Commission be
reversed. However, in Roberts, Rule 801 was not at issue, and its
impact on the relevant provisions of Rule 701 was not addressed.
B. The Nature of Rule 801
The Commission's ruling contains sharply conflicting language.
On the one hand, it states that, under Rule 801, the Commission is
obligated in the interest of justice by plaintiff's pro se status
to waive its own Rule 701 requirements. Yet, in the same sentence,
it refers to the discretionary nature of Rule 801.
[T]he interest of justice obligates the
Commission, in its discretion, to waive the
requirements of Rule 701(2) and (3) pursuant
to . . . Rule 801 in light of plaintiff's
status as a pro se appellant. (emphasis added)
The referenced rule, Industrial Commission Rule 801, provides
In the interest of justice, these rules may be
waived by the Industrial Commission. The
rights of any unrepresented plaintiff will be
given special consideration in this regard, to
the end that a plaintiff without an attorney
shall not be prejudiced by mere failure to
strictly comply with any one of these rules.
Workers' Comp. R. of N.C. Indus. Comm'n 801, 2007 Ann. R. (N.C.)
1041 (emphasis added).
The use of the word may has been interpreted by our Supreme
Court to connote discretionary power, rather than an obligatory
one. Wise v. Harrington Grove Cmty. Ass'n, 357 N.C. 396, 402-03,
584 S.E.2d 731, 737 (2003); In re Hardy, 294 N.C. 90, 97, 240
S.E.2d 367, 372 (1978); Felton v. Felton, 213 N.C. 194, 198, 195
S.E. 533, 536 (1938).
We state unequivocally that the authority vested in the
Commission under Rule 801 to waive violations of the rules in the
interest of justice is discretionary and not obligatory. If the
power was obligatory, then no pro se litigant could ever be
required to follow any of the Industrial Commission rules.
Our standard of review of the Commission's exercise of a
discretionary power is a deferential one, and the Commission's
decision will not be overturned absent an abuse of discretion.
"Abuse of discretion results where the . . . ruling is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision." State v. Hennis, 323 N.C.
279, 285, 372 S.E.2d 523, 527 (1988) (citing State v. Parker, 315
N.C. 249, 337 S.E.2d 497 (1985)).
There are two relevant portions of Rule 801: the first
sentence dealing with waiver in the context of the interest of
justice, and the second sentence which gives deference to pro se
litigants who fail to strictly comply with the rules promulgated by
the Commission to govern the review process.
C. Rule 801 and Pro se Litigants
Rule 801 provides that a pro se party shall not be prejudiced
by a mere failure to strictly comply with any one of these rules.
In the instant case, plaintiff's conduct in failing to file or
articulate any statement of grounds for her appeal to the Full
Commission does not constitute a mere failure to strictly comply
with any one of the rules. Rather, it constitutes total
noncompliance with a fundamental rule of the Commission, Rule
701(2), which, as noted, specifically requires that the grounds for
the appeal be stated with particularity. Workers' Comp. R. of
N.C. Indus. Comm'n 701(2), 2007 Ann. R. (N.C.) 1038. We hold that
the Commission's invocation of Rule 801 in the context of
plaintiff's total failure to comply with the provisions of Rule 701
was an abuse of discretion.
It should be clearly understood that the Commission does have
the discretion to apply Rule 801 in cases where a pro se litigant
fails to strictly comply with the rules. Had the plaintiff filed
a defective Form 44 or other document setting forth the grounds for
appeal, even if inexpertly drawn, the Commission could have applied
Rule 801 to waive strict compliance.
D. Rule 801 and the Interest of Justice
In addition to the discretionary powers pertaining to pro se
litigants, the first sentence of the rule authorizes the waiver of
the rules [i]n the interest of justice. The concept of interest
of justice is not limited to any particular litigant or a pro
se litigant, but rather must encompass a sense of overall justicein the case. The application of this standard requires the
Commission to consider not only the interests of all parties, but
the goals and objectives of the Workers' Compensation Act, and the
integrity of the adjudicatory process before the Commission.
Implicit in the requirement of justice is that no rule of the
Industrial Commission may compel a result incompatible with the
fundamental rights of any party.
See Handy v. PPG Indus., 154 N.C.
App. 311, 571 S.E.2d 853 (2002) (emphasizing the importance of
neutrality and impartiality of any tribunal in maintaining the
integrity of our judicial and quasi-judicial processes)
In Roberts, we emphasized that without compliance with the
provisions of Rule 701(2), requiring appellants to state with
particularity the grounds for appeal, an appellee has no notice of
what will be addressed by the Full Commission. Roberts, 173 N.C.
App. at 744, 619 S.E.2d at 910. Such notice is required for the
appellee to prepare a response to an appeal to the Full Commission.
In this matter, the Full Commission incorporated its ruling on
defendants' motion to dismiss into its Opinion and Award, and
waived oral argument. Thus the defendant first learned of the
grounds for appeal when it received the Opinion and Award. We find
the Commission's actions troublesome. Without notice and a
hearing, the Commission appears to have determined the possible
grounds for plaintiff's appeal, found evidence in the record to
support these grounds, and constructed legal arguments in support
of these grounds. By so doing, the Commission placed itself in adual role of advocate for the plaintiff and adjudicator of the
case. This is inconsistent with the role of the Industrial
Commission as set forth in Chapter 97 of the North Carolina General
Statutes. See Handy, 154 N.C. App. at 317, 571 S.E.2d at 857-58.
We hold that the Commission's application of Rule 801, in
light of plaintiff's pro se status, to waive compliance with the
provisions of Rule 701 in the interest of justice was an abuse of
discretion. Its actions are incompatible with the fundamental
right of defendants to notice of the grounds for plaintiff's
We further hold that the Commission's denial of the
defendants' motion to dismiss for failure to comply with the
provisions of Rule 701 was in error.
We hold that, under the specific facts of this case, the
Industrial Commission abused its discretion in invoking the
provisions of Rule 801 to waive plaintiff's compliance with the
provisions of Rule 701(2). Consequently, we vacate the 23 February
2006 Opinion and Award and remand the matter to the Full Commission
for entry of an order granting defendants' motion to dismiss.
Because of our holding above, we do not reach defendants'
remaining assignments of error.
VACATED and REMANDED.
Judges WYNN and JACKSON concur.
The Commission incorporated its denial of defendants'
motion to dismiss into the 23 February 2006 Opinion and Award.
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