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. COA06-729
NORTH CAROLINA COURT OF APPEALS
Filed: 20 November 2007
ANNE WADE,
Employee-Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. 351780
CAROLINA BRUSH MANUFACTURING
CO.,
Employer-Defendant,
and
NORTH CAROLINA INSURANCE
GUARANTY ASSOCIATION,
Successor in Interest to
Reliance Insurance Co.,
Carrier-Defendant.
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 defendants-appellants.
STEELMAN, Judge.
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 Award.
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 denied workers’ 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,[Note 1] the
Commission stated:
[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
excused pursuant 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 appeal.
III. Analysis
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 for Review 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
Commission.
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 Commission.
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 that:
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 justice in 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. See
id.
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
a dual 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 appeal. See id.
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.
IV. Conclusion
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.
1. The Commission incorporated its denial of defendants’ motion to dismiss into the 23 February 2006 Opinion and Award.