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.
NO. COA03-1280
NORTH CAROLINA COURT OF APPEALS
Filed: 19 October 2004
CARL
ADAMS, DOYLE WOODROW ALEXANDER,
AUDREY
LOUISE ALLISON, ALBERT WILLIAM
ARRINGTON,
JR., JAMES RONNIE ARRINGTON,
JUDITH
HOPE ARRINGTON, HOYT JAY BARNES,
SAMMY
BARNETT, TOMMY BARNETTE, ROGER
DEAN
BEASLEY, CARROLL BECK, GLENN RAY
BECK,
JAMES ARTHUR BECK, THURMAN BLAINE,
TRUDIE
MARIE BLAINE, JAMES BOLDEN,
TERRY
LEE BROWNING, GRADY DALLAS BRYSON,
MACK
C. BRYSON, VERLIN LEO BRYSON,
GORDON
J. BUCHANAN, HAROLD DEMPSEY
BUCHANAN,
NANCY BUCHANAN, WILLIAM EDWARD
BUCHANAN,
DANNY SELLERS BUMGARNER,
MILTON
RUSSELL BURKE, JAMES RICHARD BYRD,
JACK
DEMPSEY CALDWELL, WALTER BOONE
CALDWELL,
LOYD ANDREW CARVER, DENNIS
MARION
CASEY, SR., ADA PRICE CLARK,
ROBERT
RAY CLARK, JAMES MORRIS COCHRAN,
LOUIE
COCHRAN, NEAL EDWARD CODY, DONALD
WAYNE
COGBURN, FRED EARL COGDILL, AUTHER
EARNEST
COOPER, CARL H. COWARD, SR.,
EUGENE
T. CRAIG, JR., JOHNNIE NILE
CRAWFORD,
GREGORY ALAN DAVIS, HUGH
MORRELL
DAVIS, EDWARD EVANS DYER,
WILLIAMS
MARSHALL EDWARDS, RONALD JACKSON
ESTES,
JAMES RICHARD EVANS, ROSEMARY
CALDWELL
EVANS, VINSON EVANS, SAMUEL
EDWARD
FERGUSON, DORIS WHITAKER FINCANNON,
CARROLL
WILBURN FISHER, RAYMOND JACK
FISHER,
CLARENCE EUGENE FORD, ROBERT
WILLIAM
FOWLER, PAUL DON FRADY, THOMAS
LAWRENCE
FRAZIER, JOHN ALEXANDER FRIZZELL,
SILAS
KENNETH FRIZZELL, DOROTHY ELIZABETH
FULCE,
KENNETH HOWARD GIBSON, ARNOLD EMMITT
GREEN,
DAVIS DEAN GREEN, GEORGE WILLIAM
GREEN,
JAMES H. GREEN, KENNETH WALTER GREEN,
DOUGLAS
GREENE, JAMES GREENE, JAMES PAUL
GROOMS,
KENNETH CARROLL GROOMS, ROY WALTER
GROOMS,
JACK ALLEN HALL, JAMES HENRY HALL,
JERRY
STEPHEN HALL, MILDRED CHAMBERS HANNAH,
MORRIS
JAMES HANNAH, JOE EDWARD HAWKINS,
ROGER
DALE HENDRIX, BARBARA SMITH HENRY,
ALBERT
DEWIGHT HENSON, DONALD JEROME HENSON,
JOHN
VANCE HILL, BRUCE HOLDER, CHARLES
HERMAN
HOLDER, WILBURN VAN HOLLAND, CARL
KENNETH
HORTON, THOMAS DEWITT HYATT, CHARLES
WAYNE
HYDE, VINCENT LANNES INMAN, FRANKLIN
DEWITT
JAMES, WILLIAM KARLISLE JAMES, JAMES
HAROLD
JAMISON, LAWRENCE DANIEL JENKINS,
DONNIE
RAY JONES, CHARLES HOOPER JUSTICE,
DANIEL
HAROLD KELLEY, MICHAEL DENNIS KELLY,
JAMES
GROVER LEATHERWOOD, RAYMOND SAMMY
LEDFORD,
PHILLIP LEOPARD, JACK CARPENTER
LEWIS,
ROY F. LINDSAY, CLAUDE OWEN LONG,
BOONE
BEVERLY LOWE, ROGER FRANK LOWE, JAMES
ANDREW
LUNSFORD, WILLIE THOMAS MANN,
FREDERICK
JOSEPH MARCUS, PEGGY MARTIN,
LANEY
CONSTANT MASON, FRANK MATHIS, WILLIAM
NEWTON
MAUCK, JAMES T. MAULDIN, JOHNNY ELLIS
MCCALL,
ROBERT DELOS MCCALL, JAMES EDWARD
MCCONNELL,
HAZEL MCELROY, JAMES LESLIE
MCFALLS,
GENE ALLEN MEDFORD, JAYNES RILEY
MEDFORD,
RICHARD DALE MEDFORD, ROBERT TAYLOR
MEDFORD,
WILLIAM LAWRENCE MEDFORD, WILLIE
ERVIN
MEHAFFEY, EDWARD LEE MESSER, GLEN
HORACE
MESSER, HOWARD MESSER, STEVEN KIRBY
MILLER,
JAMES ROBERT MINTZ, JR., RUFUS
CARROLL
MINTZ, JAMES EDWARD MOODY, CLYDE
ALLEN
MORGAN, JERRY DEVOE MORROW, ROBERT
KENNETH
MORROW, SHELIA DIANE NICHOLS,
HARLEY
RAY OTTINGER, BARBARA ANN PARKS,
CHARLES
EDWIN PARKS, FRED PARTON, RAY ALFRED
PARTON,
WILLIAM PARTON, JACK PHILLIPS, WAYNE
HILLIARD
PITTS, NED HILLARD PRICE, JACK
O’NEIL
RAMEY, WILLIAM C. RASH, EDWIN PALMER
RATCLIFFE,
JUNIOR DAVID RATHBONE, LARRY
DOUGLAS
RATHBONE, MARY NELL RATHBONE, WAYNE
BOYD
RATHBONE, SEBY NEAL RHODARMER, ROBERT
RAY
RHODES, KENNETH ROBERTS, CLARENCE
RAYMOND
ROBINSON, DOUGLAS NEAL ROBINSON,
GERALDINE
MARIE ROBINSON, JOSEPH MOORE
ROBINSON,
SAMUEL E. ROBINSON, CHARLES
ROBERT
ROGERS, JACK ROGERS, RODERICK
NEWTON
ROGERS, MEDFORD DALE RUSSELL, RANSOM
RUSSELL,
MARTIN LELAND SCRUGGS, STUART EARL
SCRUGGS,
JR. HARLEY GLENN SELLERS, EARL
JOSEPH
SHELTON, LINDA JEAN SHEPPARD, BILLY
BRUCE
SHERRILL, DANIEL ANDY SHULER, JAMES
ALLEN
SHULER, THOMAS ERVIN SLUDER, STEVE
WILLIS
SMATHERS, DALLAS SMITH, JIMMY RAY
SMITH,
JOSEPH WILLIAM SMITH, BILL GENE
SNIPES,
EARL JULIOUS STEPHENS, HUTY
STEPHENS,
TED L. STEPHENS, BILLY RAY STILES,
DANA
STRICKLER, GARY ROY SUTTLES, FRANCIS
EUGENE
SUTTON, SR., JAMES FREDDIE SUTTON,
NED
LEROY SUTTON, NEIL TEAGUE, GENE BAXTER
THOMASON,
LOYE JOSEPH TRANTHAM, JERRY TRULL,
RALPH
TRULL, PATRICIA ANN TUCKER, PAUL
JINNINGS
WARD, SUSIE WARLICK, JAMES ROBERT WARREN, MARIE PHILLIPS WARREN, MINGUS ROBERT
WELLS,
FLOYD HARVEY WEST, ALLENEE WILKES,
HILDA
FAYE WILKES, BOBBY HAYES WILLIAMSON,
LINDA
JOYCE WILLIAMSON, LEONARD RAY
WINCHESTER,
JAMES MILAS WOOD, WINFRED RICHARD
WRIGHT,
CHARLES RAY WYATT,
Employees,
Plaintiffs;
v. North
Carolina Industrial Commission
I.C. File No. 044243
M.A.
HANNA CO.,
Employer,
FIREMAN’S
FUND INSURANCE
Carrier;
and
DAYCO
CORP/M.A. HANNA, INC./POLYONE CORP.,
Employer,
NATIONAL
UNION FIRE INSURANCE CO.,
Carrier;
and
DAYCO
PRODUCTS, INC./DAYCO PRODUCTS, L.L.C./
MARK
IV INDUSTRIES, INC.,
Employer,
THE
TRAVELERS PROPERTY AND CASUALTY CO.,
Carrier
NATIONAL
UNION FIRE INSURANCE CO. OF
PITTSBURGH,
PENNSYLVANIA,
Carrier,
THE
INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA,
Carrier;
Defendants.
Appeal by defendants from orders entered 11 April 2003 and 9 May 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 27 May 2004.
Brooks, Stevens & Pope, P.A., by Michael C. Sigmon and Matthew P. Blake, for defendants Dayco Products, Inc./Dayco Products, L.L.C./Mark IV Industries, Inc., Inc. and The Travelers Property & Casualty Co.
Lewis & Roberts, P.L.L.C., by Winston L. Page, for defendants Dayco Corp./M.A. Hanna, Inc./Polyone Corp. and National Union Fire Insurance Co.
Teague, Campbell, Dennis & Gorham, L.L.P., by Thomas M. Clare, for defendants M.A. Hanna Co. and Fireman’s Fund Insurance.
Wallace & Graham, P.A., by
Michael Pross, for plaintiffs.
HUDSON,
Judge.
Plaintiffs
filed claims alleging they had contracted asbestosis and other occupational
diseases as a result of employment with defendant-employer. The Industrial
Commission appointed Deputy Commissioner Douglas E. Berger to facilitate
hearings of these claims en masse. On 18 May 2001, Deputy Commissioner
Berger entered an order establishing procedures for taking the testimony of
non-medical expert witnesses and related discovery. On 22 November 2002, Deputy
Commissioner Berger entered an oral order requiring the attorneys for defendant
Dayco Products, Inc./Dayco Products, L.L.C./Mark IV Industries, Inc. (“Dayco”)
to pay $10,000 to plaintiff’s attorneys as a sanction for violating the 18 May
order. On 2 December 2002, defendants gave notice of appeal to the Full
Commission. On 10 December 2002, Deputy Commissioner Berger reduced to writing
his prior oral order, and defendant appealed the written order on 24 December
2002.
On
28 January 2003, Industrial Commission Chairman Buck Lattimore entered an order
which allowed the interlocutory appeal to go forward and referred it to the
administrative panel of the Full Commission for an expedited hearing. The panel
entered an administrative order on 11 April 2003, affirming and increasing the
sanction to $20,000.
On
2 May 2003, defendant filed a motion for reconsideration, which the Full
Commission denied on 9 May 2003. On 2 June 2003, defendant appealed to this
Court. For the reasons discussed below, we vacate the order and remand to the
Full Commission for further proceedings.
This
case arises from an order imposing sanctions against counsel for defendant
Dayco for violating an earlier discovery order. That order, from 18 May 2001,
addressed the taking of testimony from Dr. William Dyson, a non-medical expert,
and related discovery matters, and required in pertinent part the following:
Prior
to the special set hearing, Defendants are to provide Plaintiffs with 1) all
documents that were provided to Dr. Dyson upon which he will render his expert
opinion; 2) all correspondence directed to Dr. Dyson[;] and 3) a summary report
provided by Dr. Dyson as to his expected testimony.
The deputy commissioner further addressed
the procedures for taking expert testimony in later teleconferences and in oral
and written orders.
During
his 21 June 2002 deposition, Dr. Dyson disclosed the existence of photographs
taken by defendants at the plaintiffs’ workplace in November 2001. Defendant’s
attorneys had not provided these photographs to plaintiffs’ counsel. On 29 July
2002, plaintiffs moved to strike the testimony of Dr. Dyson based upon the fact
that defendants had failed to produce the photographs prior to his deposition.
On 22 November 2002, Deputy Commissioner Berger entered his oral order imposing
a sanction of $10,000 in attorney’s fees against counsel for defendant Dayco
for failure to comply with his 18 May 2001 order. Deputy Commissioner Berger
made the sanctions payable immediately and certified the interlocutory order
for immediate appeal.
Defendant
Dayco appealed to the Full Commission. On 28 January 2003, Chairman Lattimore
granted the request that the appeal go forward in an order which stated:
1. Defendants’
request for immediate appeal of this Interlocutory Order to the Full Commission
is hereby GRANTED.
2. This
matter is hereby referred to the administrative panel of the Full Commission
for expedited hearing.
3. Deputy
Commissioner Berger’s Interlocutory Order is hereby stayed pending issuance of
an Opinion and Award by the administrative panel of the Full Commission.
On 11 April 2003, the Full Commission
panel filed its order affirming Deputy Commissioner Berger’s order, but increasing
the amount of the sanctions to $20,000, payable immediately. The panel made no
findings of fact in the order. Defendant Dayco then moved for reconsideration,
which motion the Full Commission denied 9 May 2003.
The
order imposing sanctions appealed here is interlocutory. Generally,
interlocutory orders are not immediately appealable. Sharp v. Worland,
351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999), disc. review denied, 352
N.C. 150, 544 S.E.2d 228 (2000). However, an order imposing sanctions may affect
a substantial right, and thus be immediately appealable. Hummer v. Pulley,
Watson, King & Lischer, P.A., 140 N.C. App. 270, 277, 536 S.E.2d
349, 353 (2000); Walker v. Liberty Mut. Ins. Co., 84 N.C. App. 552,
554-55, 353 S.E.2d 425, 426 (1987).
In
their appeal to this Court, defendant Dayco challenges the procedure followed
by the Full Commission, and the adequacy of the order. Industrial Commission
Rule 701 establishes processes and procedures for appeals to the Full
Commission. See Workers’ Compensation Rules of the North Carolina
Industrial Commission, Rule 701. Pursuant to Rule 701, upon receipt of notice
of appeal of a decision of a deputy commissioner, the Full Commission will
supply the appellant with a Form 44 Application for Review, which the appellant
must complete, stating the specific grounds for appeal, and file along with his
brief within twenty-five days after he receives the transcript. Appellee then
has twenty-five days in which to file its responsive brief. The Full
Commission, in its discretion, may waive the use of Form 44 and oral argument,
and reach its decision based on the record, assignments of error and briefs.
However, even though the Commission may waive the use of Form 44, the rule
specifically requires that grounds for appeal be set forth with particularity.
Here,
the 28 January 2003 order by Chairman Lattimore refers the appeal to “the
administrative panel of the Full Commission for expedited hearing.” The
appellant filed no Form 44 and none of the parties filed briefs to the Full
Commission. Our review of the Workers’ Compensation Act and the Commission’s
own rules discloses no authority for this process. Although this appeal of the
deputy commissioner’s 10 December 2002 order was interlocutory, it involved
review by the Full Commission of an order entered after a hearing which
contained findings of fact and conclusions of law. We conclude that this Full
Commission review was governed by Rule 701 and N.C. Gen. Stat. §97-85. The Full
Commission apparently waived the filing of Form 44 and the holding of an oral
argument in the appeal, as permitted by Rule 701. However, Rule 701 also gives
appellant the right to file a brief in support of its argument, and the Full
Commission here gave neither defendant Dayco nor the other parties any
opportunity to be heard.
Dayco
also argues that the Commission exceeded its authority and violated its own
rules by failing to make its own findings and conclusions, and by failing to
specify which of Dayco’s attorneys’ actions constituted sanctionable conduct.
Plaintiffs, on the other hand, contend that the Commission acted properly by
simply upholding the findings of the deputy commissioner.
Numerous
appellate court decisions in recent years have established clearly that the
Full Commission is the ultimate fact-finder whether or not it reviews a “cold
record.” N.C. Gen. Stat. §97-85; Deese v. Champion Int’l Corp., 352 N.C.
109, 115, 530 S.E.2d 549, 552 (2000) (citing Adams v. AVX Corp., 349
N.C. 676, 680-81, 509 S.E.2d 411, 413-14 (1998)). Further, the Commission must
make findings of fact and conclusions of law on all issues raised by the
evidence which are necessary for a determination of the matter. Bryant v.
Weyerhaeuser Co., 130 N.C. App. 135, 139, 502 S.E.2d 58, 61-62, disc.
review denied, 349 N.C. 228, 515 S.E.2d 700 (1998).
Here,
we conclude that the Commission has not followed the Act and its own rules, and
has not carried out its duty to make findings of fact and conclusions of law.
Thus, we vacate the order and remand so that it may do so.
Vacated
and remanded for further proceedings.
Judges
GEER and THORNBURG concur.