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NO. COA06-703
NORTH CAROLINA COURT OF APPEALS
Filed: 17 April 2007
MONA LISA SMYTHE,
Employee,
Plaintiff
v. North Carolina Industrial Commission
I.C. File No. 019947
WAFFLE
HOUSE,
Employer
SELF-INSURED (OSTEEN
ADJUSTING SERVICES,
INC.),
Servicing
Agent,
Defendants
Appeal by defendants from an opinion on remand entered 10 February 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 5 February 2007.
Ganly
& Ramer, by Thomas F. Ramer, for plaintiff-appellee.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P., by Shelley W. Coleman and M. Duane
Jones, for defendant-appellants.
HUNTER, Judge.
Employer Waffle House and its insurer Osteen Adjusting
Services, Inc. (“defendants”) appeal from an Industrial Commission
(“Commission”) opinion on remand vacating a previously approved settlement
agreement, contending that the Commission did not have the authority to
reinstate total disability benefits for employee Mona Lisa Smythe
(“plaintiff”). After careful review, we
affirm the Commission’s opinion on remand.
This case has come before the Court of Appeals before. Smythe v. Waffle House [Smythe I],
170 N.C. App. 361, 612 S.E.2d 345 (2005).
That opinion sets out the facts and procedural history of this case in
full. Id. at 362-64, 612 S.E.2d
at 347-48. In sum, plaintiff sustained
an admittedly compensable injury from a fall during her employment by defendant
Waffle House. The parties executed a
settlement agreement that, as required per statute, was approved by a deputy
commissioner from the Commission on 31 May 2001. Plaintiff then requested that the Commission set aside the
agreement based on misrepresentations.
Eventually the case came before this Court on appeal from the Full
Commission’s holding that the agreement was valid, and we reversed.
In Smythe I, this Court held that the settlement
agreement approved by the deputy commissioner was invalid because “the
Commission erred by failing to undertake a full investigation to determine if
the settlement agreement here was fair and just, as required by N.C. Gen. Stat.
§§97-17 and 97-82.” Id. at 364,
612 S.E.2d at 348. Further, the Court
held that the agreement did not meet the requirements of Industrial Commission
Rule 502(2)(h), which, in addition to requiring that the Commission find an
agreement fair and just before approving it, requires that the agreement
contain certain biographical information regarding the employee where she is
not represented by counsel, as here.
The Court concluded by reversing and remanding the case: “Because the Commission lacked information
to make a determination of the agreement’s fairness, as required by N.C. Gen.
Stat. §97-17 and Rule 502, we reverse and remand to the Full Commission to
enter an order vacating the approval of the settlement agreement, and for
further proceedings as necessary.” Id.
at 367, 612 S.E.2d at 350.
On remand following this holding, the Full Commission
produced an opinion on remand quoting a portion of the Court’s opinion:
Here, the face
of the compromise settlement agreement indicates that plaintiff had not
returned to work for the same or greater wages and it is undisputed that
plaintiff was unrepresented when she entered the agreement in May 2001. Thus, [the] more specific requirements of
[Industrial Commission] Rule 502(2)(h) apply to the agreement here. However, the settlement agreement here does
not contain any of the information required under Rule 502(2)(h). It contains no mention of plaintiff’s age,
educational level, past vocational training, or past work
experience. . . . [T]his
Court held in Atkins that it is impermissible for the Commission to determine
that a settlement agreement was [“]fair and just[“] without the medical records
required by Rule 503. 154 N.C. App. at
514, 571 S.E.2d at 867. Likewise, we
conclude that [it] is impermissible for the Commission to make a determination
regarding the fairness of a settlement agreement without the information
required by Rule 502(2)(h).
Defendant argued to the Commission that the parties could
comply with the Rule by submitting the missing information, at which point the
Commission could properly approve the settlement agreement reached by the
parties. The Commission rejected this
argument, stating that even if such information were submitted, the Commission
could not review the agreement
because the
Court of Appeals has found that the settlement agreement is invalid and fails
on its face due to the fact that “[i]t contains no mention of plaintiff’s age,
educational level, past vocational training, or past work experience” as
required by Rule 502(2)(h). Thus, in
accordance with the directive of the Court of Appeals, the Full Commission
finds that the proper course of action is to vacate the Orders approving the
invalid settlement agreement, and return the parties to their status at the
time prior to the execution of the agreement.
Thus, the Commission not only vacated the orders approving the settlement agreement, but also returned the claim to active claim status and ordered defendants to reinstate plaintiff’s total disability benefits effective 31 May 2001 (i.e., the day the deputy commissioner approved the order that was later found to be in error). Defendants appeal from that order. We affirm the Commission’s holding.
Defendants made three assignments of error, each of which claims that a certain portion of the Commission’s order is in error on the grounds that its findings of fact and conclusions of law were erroneous and not supported by competent evidence. The three portions are: First, the order in its entirety; second, the portion reinstating plaintiff’s total disability benefits; and third, the portion awarding attorney’s fees to plaintiff. Although defendants cite to all three of these assignments of errors in its brief, its argument actually addresses only the second. This Court therefore addresses only that argument, as the others are deemed abandoned. N.C.R. App. P. 28(a).
Defendants argue that the Full Commission erred in awarding
plaintiff full disability benefits on remand without making findings of fact or
conclusions of law to support such an award.
This argument is without merit.
Defendants are correct that, normally, this Court’s review
of the Commission’s decisions is “strictly limited to the two-fold inquiry of
(1) whether there is competent evidence to support the Commission’s findings of
fact; and (2) whether these findings of fact justify the Commission’s
conclusions of law.” Foster v.
Carolina Marble and Tile Co., 132 N.C. App. 505, 507, 513 S.E.2d 75, 77
(1999). Upon such review, “[t]he
Commission’s findings will not be disturbed on appeal if they are supported by
competent evidence even if there is contrary evidence in the record. However, the Commission’s conclusions of law
are reviewable de novo by this Court.”
Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 427, 552 S.E.2d
269, 272 (2001) (citations omitted).
The key factor in this case is that the Commission’s
conclusions of law in its opinion on remand are merely a formalization of this
Court’s conclusions of law. That
is, the case was not remanded in order for the Commission to reconsider the
case and make new findings of fact or conclusions of law on its own; this Court
remanded it with orders to vacate. The
order thus quotes a substantial part of this Court’s remand order that includes
this Court’s rationale (i.e., its findings and conclusions). Independent fact-finding and conclusions of
law would have been inappropriate. To
the extent such findings and conclusions were necessary, the order provides
them by way of quoting this Court.
Defendants further argue that the Commission had no
authority to reinstate plaintiff’s disability benefits because a plaintiff in
worker’s compensation cases always has the burden of proving her disability
exists, and no such proof was provided to the Commission for it to make this
determination. A similar situation
occurred in State ex rel. Comm’r of Ins. v. N.C. Rate Bureau, 131 N.C.
App. 874, 508 S.E.2d 836 (1998). In an
earlier appeal in the case (124 N.C. App. 674, 478 S.E.2d 794 (1996)), this
Court had reviewed an order by the Commissioner of Insurance altering the rates
on automobiles and motorcycles. Rate
Bureau, 131 N.C. App. at 875, 508 S.E.2d at 836-37. Further, this Court had vacated the order in
part and remanded it to the Commissioner with instructions to, among other
things, recalculate certain provisions.
Id. On remand, the
Commissioner set new rates per the Court’s order and ordered that they be
applied effective as of the date the previous rate change took effect -- that
is, retroactively. Id. at
875-76, 508 S.E.2d at 837. The North
Carolina Rate Bureau appealed from the order, arguing that the Commissioner had
no authority to order that the rates be applied retroactively. Id. at 876, 508 S.E.2d at 837. On appeal, this Court rejected that
argument, stating:
The
recalculation of rates, however, pursuant to a remand order of an appellate
court and the application of those rates back to the effective date of the
Order reversed on appeal does not constitute unlawful retroactive rate
making. To hold otherwise essentially
would bind the parties, for a period of time between the entry of the appealed
Order and the rehearing on remand pursuant to the appellate court, to a rate
declared invalid by the appellate court.
This cannot represent sound public policy, and, furthermore, is
inconsistent with the purpose of the remand order, which is to correct the
error requiring the remand.
Id. (emphasis
added).
The reasoning of this Court’s conclusion in Rate Bureau
also applies squarely to the case at hand.
The purpose of the remand order in the case sub judice is, as
above, “to correct the error requiring the remand.” Id. Had the
Commission not reinstated the status quo as of the date the invalid agreement
was approved, it would be “bind[ing] the parties, for a period of time between
the entry of the appealed Order and the rehearing on remand pursuant to the
appellate court, to [an agreement] declared invalid by the appellate
court.” Id. With the agreement invalidated and the
Commission ordered to vacate it, the Commission’s only option was to return the
parties to the status quo before the agreement was approved. To do otherwise -- specifically, to allow
defendants to avoid paying any benefits to plaintiff for the period during
which the settlement agreement was in dispute -- would be “inconsistent with
the purpose of the remand order[.]” Id.
Defendants also assigned error to the Commission’s awarding
of attorney’s fees to plaintiff, but then did not address that error in their
brief. As such, we deem it abandoned
per N.C.R. App. P. 28.
Defendants have failed to show that the Commission erred in
entering its order to vacate and reinstate plaintiff’s disability
benefits. As such, the Commission’s
order is affirmed.
Affirmed.
Chief Judge MARTIN and Judge STROUD concur.