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. COA 02-1229
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2003
JIMMY
LEWIS WATTS,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C. File No. 576150
HEMLOCK
HOMES OF THE
HIGHLANDS,
INC.,
Employer,
BUILDERS
MUTUAL INSURANCE
COMPANY,
Carrier,
Defendants.
Appeal by defendants from opinion and award entered 7 May 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 21 May 2003.
No
brief filed for plaintiff-appellee.
Lewis
& Roberts, P.L.L.C., by John H. Ruocchio and Timothy S. Riordan, for
defendant-appellants.
HUDSON,
Judge.
Plaintiff,
Jimmy Lewis Watts, was injured in his employment with defendant Hemlock Homes
of the Highlands, Inc. (“Hemlock Homes”) on 26 September 1995. On 6 October
1995, defendants executed an IC Form 60, recognizing plaintiff’s right to
compensation and noting an average weekly wage of $480.00, yielding a
compensation rate of $320.01 per week. Defendant began making payments to
plaintiff at that rate.
On
4 November 1995, plaintiff returned to work for Hemlock Homes and continued to
work through 21 February 1996, at which time plaintiff underwent surgery on his
shoulder. On 26 February 1996, defendants sent plaintiff a letter informing
plaintiff that his average weekly wage was $244.73, not $480.00, and which
generated a compensation rate of $161.16 per week. Subsequently, defendants
began paying plaintiff compensation at the rate of $161.16 per week.
On
30 October 1998, plaintiff filed a motion along with the IC Form 60 in the
Superior Court in Jackson County seeking an order to enforce the IC Form 60, which
stated that plaintiff’s average weekly wage was $480.00. On 19 July 1999, after
hearing arguments, Judge J. Marlene Hyatt entered judgment ordering payment to
plaintiff in the amount of $29,517.88, which represented the past compensation
plaintiff would have received if paid at a compensation rate of $320.01 per
week, and ordered defendants to continue paying plaintiff ongoing compensation,
consistent with IC Form 60, at the rate of $320.01 per week.
Defendant
appealed this order to this Court, which vacated the order, holding that the
superior court exceeded its jurisdiction by entering judgment and forcing
payment of an amount of compensation when such an amount was in dispute. Watts
v. Hemlock Homes of the Highlands, Inc., 141 N.C. App. 725, 544 S.E.2d 1, disc.
review denied, 353 N.C. 398, 547 S.E.2d 431 (2001).
On
17 February 1999, defendants filed an IC Form 24 seeking to terminate
plaintiff’s compensation, contending that plaintiff had been working and
building houses since 26 January 1996. On 18 March 1999, a Form 24 hearing was
held before Special Deputy Commissioner Gina Cammarano. On 25 March 1999,
Special Deputy Cammarano entered an order stating that the Commission was
unable to reach a decision. Subsequently, on 4 May 1999, Special Deputy Cammarano
ordered defendants to immediately reinstate plaintiff’s temporary total
disability compensation. On 12 May 1999, defendants filed an IC Form 33 to
request a hearing on both the 25 March 1999 and 4 May 1999 orders.
The
matter was thereafter set for hearing before Deputy Commissioner George T.
Glenn, II. Following several hearings, on 31 October 2000, Deputy Glenn ordered
that the compensation rate should be paid pursuant to the IC Form 60 in the
amount of $320.02 [sic] per week.
Defendants
appealed to the Full Commission alleging that plaintiff has worked, and
continues to work, as a carpenter, general contractor, and boom truck operator.
The Full Commission affirmed and modified Deputy Commissioner Glenn’s order,
finding that plaintiff returned to work as of 31 March 2000. The Full
Commission, however, remanded the case for a hearing before a Deputy
Commissioner on the issues of “plaintiff’s average weekly wage at the time of
plaintiff’s compensable injury by accident and plaintiff’s resultant weekly
compensation rate.”
Defendants
now appeal to this Court arguing (1) that the Commission erred in determining
that plaintiff was temporarily totally disabled from 21 February 1996 through
31 March 2000; (2) that the Commission applied an incorrect standard for
determining plaintiff’s period of disability; (3) that the Commission failed to
make material findings of fact; and (4) the Commission’s findings of fact and
conclusions of law are insufficient for this Court to determine the rights of
the parties to this controversy. However, for the following reasons, we dismiss
this appeal as interlocutory.
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.” G.S. 97-86 (2001). Parties have a
right to appeal any final judgment of a superior court. G.S. 7A-27 (2001).
Therefore, an appeal as of right can arise only from a final order of the
Industrial Commission. Ratchford v. C.C. Mangum, Inc., 150 N.C. App.
197, 199, 564 S.E.2d 245, 247 (2002).
“A
final judgment is one that determines the entire controversy between the
parties, leaving nothing to be decided in the trial court.” Id. We have
said that “[a]n opinion and award of the Industrial Commission is interlocutory
if it determines one but not all of the issues in a workers’ compensation
case.” Id; see also Fisher v. E.I. DuPont De Nemours, 54
N.C. App. 176, 177-78, 282 S.E.2d 543, 544 (1981) (holding that an order is not
final where the amount of compensation is not determined). Moreover, while we
recognize that a workers’ compensation claim may continue under an open award
for many weeks or even years, an opinion and award that on its face
contemplates further proceedings or which does not fully dispose of the pending
stage of the litigation is interlocutory. See Riggins v. Elkay Southern
Corp., 132 N.C. App. 232, 233, 510 S.E.2d 674 (1999) (“An opinion and award
that settles preliminary questions of compensability but leaves unresolved the
amount of compensation to which the plaintiff is entitled and expressly
reserves final disposition of the matter pending receipt of further evidence is
interlocutory”).
Here,
the Commission’s opinion and award specifically reserved the issue of the
amount of plaintiff’s compensation award pending a hearing to determine
plaintiff’s average weekly wage at the time of his compensable injury. Although
the opinion determined that plaintiff suffered a compensable injury by accident,
the total amount of compensation has yet to be determined, and the average
weekly wage is in dispute. There being nothing in the record to indicate that
the parties have resolved this issue independently after the Commission entered
its opinion, this appeal is clearly interlocutory.
We
note that Rule of Appellate Procedure 28(b)(4) requires the appellant to
include in its brief to this Court a “statement of grounds for appellate
review. . . . When an appeal is interlocutory, the statement must contain sufficient
facts and argument to support appellate review on the ground that the
challenged order affects a substantial right.” Further, it is well established
that the appellant bears the burden of making such a showing to the court, and
that it is not up to the court to construct the grounds for the parties. Jeffreys
v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254
(1994). The appellant’s brief here contains no statement of the grounds for
appellate review, and no discussion of any basis for review of this
interlocutory order.
Appeal
dismissed.
Judges
TIMMONS-GOODSON and STEELMAN concur.