TABLE OF CONTENTS
|ARTICLE I. ADMINISTRATION||ARTICLE IV. APPEALS TO THE COURT OF APPEALS|
|ARTICLE II. CLAIMS PROCEDURES||ARTICLE V. RULES|
|ARTICLE III. APPEALS TO THE FULL COMMISSION|
Note 1: Click here to view the
annotated version of these
rules, effective 1 January 2011, with additions indicated in underlined
type and deletions indicated in
Note 2: Click here to view the
annotated version of these rules that became effective 1 May
2000, with additions indicated in bold italic type and deletions indicated in
ARTICLE I. ADMINISTRATION
Location of Offices and Hours of Business
The offices of the North Carolina Industrial Commission (hereinafter “Industrial Commission”) are located in the Dobbs Building, 430 North Salisbury Street, in Raleigh, North Carolina. The General Mailing Address is North Carolina Industrial Commission, 4319 Mail Service Center, Raleigh, NC 27699-4319. The same office hours will be observed by the Industrial Commission as are, or may be, observed by other State offices in Raleigh. The offices are open between the hours of 8:00 a.m. and 5:00 p.m. to accept documents for filing.
Transaction of Business by the Commission
The Industrial Commission shall remain in continuous session subject to the call of the Chair to meet as a body for the purpose of transacting such business as may come before it.
Industrial Commission will supply, on request, forms identified by number
and title as follows:
Form T-1, Claim for
Damages Under Tort Claims Act, N.C. Gen. Stat.
§143-297. [Note: To view or print this PDF version of Form T-1, you
must download and install a free Adobe® Acrobat®
Form T-3, Release of
Tort Claim Under N.C.
Gen. Stat. §143-297, et seq. [Note: To view or print this PDF
version of Form T-3, you must download and install a free Adobe® Acrobat®
Such other forms relating to Tort Claims which, from time to time, may be promulgated by
the Industrial Commission.
The use of any printed forms other than those approved and adopted by the Industrial Commission is prohibited. However, a claim for damages under the Tort Claims Act, and an answer or other responsive pleading by a defendant, may be filed by way of an original typed claim or answer and other responsive pleading which is similar in format to a civil pleading in the General Courts of Justice, and which is verified.
Filing by Telefacsimile Transmission
Filing by telefacsimile transmission shall be allowed when specific permission is granted by the Dockets Director or by the person designated by the Chair to determine matters related to the Tort Claims Act or by the Chair. If a filing fee is required, it must be received by the Industrial Commission contemporaneously with the telefacsimile either by electronic transfer of funds or other procedure accepted by the Commission. The Industrial Commission may adopt procedures for filing by telefacsimile transmission in other instances.
ARTICLE II. CLAIMS PROCEDURES
Rules of Civil Procedure
The Rules of Civil Procedure as provided in N.C. Gen. Stat.
shall apply in Tort Claims before the Industrial Commission, to the extent
that such Rules are not inconsistent with the Tort Claims Act. In the event
of such inconsistency, the Tort Claims Act and these Rules
malpractice cases filed by or on behalf of prison inmates where the
plaintiff is alleging that a health care provider as defined in
N.C. Gen. Stat.
§90-21.11 failed to comply with the applicable standard of care under N.C. Gen. Stat. §90-21.12
and the defendant has filed a Motion to Dismiss the claim, all discovery is
stayed until the following occurs:
informal recorded telephonic hearing or other similar method of informal
hearing as determined appropriate by the Industrial Commission is held
before a Deputy Commissioner for the purpose of determining
a claim for medical malpractice has been stated;
expert testimony is necessary for the plaintiff to prevail; and
expert testimony is deemed necessary, whether the plaintiff will be able
to produce such testimony on the applicable standard of care.
receipt of a Motion to Dismiss and Request for Telephonic Hearing from the
defendant, the Industrial Commission shall issue an order setting the motion
on a hearing docket and the case will be assigned to a Deputy Commissioner.
Thereafter, the parties shall have 30 days to submit medical records
applicable to the claim to the Dockets Director or to the Deputy
Commissioner before whom the case is set.
If the defendant’s Motion to Dismiss is granted, an appeal lies to the Full Commission. If defendant’s Motion to Dismiss is denied, the case will proceed as any other Tort Claims case.
shall be accepted for filing with the Industrial Commission which is not
accompanied by an attorney’s check, certified check, money order, or
electronic transfer of funds in payment of a
filing fee in an amount equal to the filing fee required for the filing of a
civil action in the Superior Court division of the General Court of Justice.
provisions of paragraph (1) above notwithstanding, a claim which is
accompanied by a Petition to Sue as an Indigent shall be accepted for filing
upon the date of its receipt.
to Sue as an Indigent shall consist of the following:
affidavit sufficient to satisfy the provisions of
N.C. Gen. Stat.
stating that plaintiff is unable to comply with subsection (1) of this
plaintiff is an inmate in the North Carolina Department of Correction, a
report by the Department of Correction stating the balance of
plaintiff’s prison trust account, together with an accounting of all
credits to and withdrawals from that trust account during the prior six
or denial of permission to sue as an indigent shall be in the sole
discretion of the Industrial Commission.
If, in the
discretion of the Industrial Commission, it is determined that plaintiff is
able to pay all or any part of the fees assessed under this Rule, an Order
shall be issued directing payment of all or any part of that fee, and the
plaintiff shall, within 30 days from his receipt of the Order, forward to
the Industrial Commission an attorney’s check, certified check, money order,
or electronic fund transfer for the full amount which is required to be
paid. Failure to submit the required amount of the filing fee within this
time shall result in the claim being dismissed without prejudice.
Upon consideration of an inmate’s Petition to Sue as an Indigent, the Industrial Commission may determine that the inmate’s tort claim is frivolous and dismiss the claim pursuant to N.C. Gen. Stat. §1-110. Appeals from the dismissal of a claim pursuant to this statute shall proceed directly to the Full Commission and shall be decided without oral argument. The Commission shall forward a copy of the file to the Attorney General’s Office without cost upon plaintiff’s notice of appeal to the Full Commission.
Enlargement of Time
A Commissioner or Deputy Commissioner may upon the motion of a party or upon his own motion, enlarge the time within which an action must be taken or a document filed pursuant to this Article. If the claim has not been calendared, a Motion for Enlargement of Time should be directed to the Commissioner or Deputy Commissioner designated by the Chair to determine Tort Claim motions. An enlargement of time may be granted either before or after the relevant time requirement has elapsed.
Infants and Incompetents
In all cases where it is proposed that minors or incompetents shall sue by their guardian ad litem, the Industrial Commission shall appoint such guardian ad litem upon the written application of a reputable person closely connected with such minor or incompetent; but if such person will not apply, then, upon the application of some reputable citizen. The Industrial Commission shall make such appointment only after due inquiry as to the fitness of the person to be appointed.
in cases which are currently calendared before a Commissioner or Deputy
Commissioner shall be sent directly to that Commissioner or Deputy
Commissioner. Before a case is calendared, or after a case has been
continued, or removed, or after a case has been heard and a Decision and
Order entered, motions shall be directed to the Executive Secretary of the
Industrial Commission or the person designated by the Chair to determine
these matters, if known.
A motion shall state with particularity the grounds on which it is based, the relief sought, and a brief statement of the opposing party’s position, if known. The party making the motion shall make a reasonable and diligent effort to ascertain the position of the opposing party and if unable to do so, should specify the reasonable efforts made. A proposed Order shall be submitted with all motions. Service shall be made on all other parties.
The above provisions shall not apply to inmate torts, except that service shall be made on all other parties.
Motions to continue or remove a case from the hearing docket must be made
well in advance of the scheduled hearing and shall be made in writing. In
all cases, the moving party must state that the other parties have been
advised of the motion and relate the position of the other parties regarding
the motion. Oral motions may be permitted in emergency situations for good
responding party to a motion, with the exception of motions to continue or
remove a case from a hearing docket, shall have ten days after a motion is
served upon him during which to file and serve copies of a response in
opposition to the motion. The Industrial Commission may shorten or extend
the time for responding to any motion.
Notwithstanding the provisions of (4) above, the Industrial Commission
may act upon a motion at any time, despite the absence
of notice to all parties, and without awaiting a response. A party who has
not received actual notice of such a motion prior to the entry of a ruling
by the Industrial Commission or who has not filed a response at the time
such ruling is entered and who is adversely affected by the ruling may
request reconsideration, vacation, or modification of the ruling. Motions
will be determined without argument, unless the Industrial Commission orders
In a case in
which a Motion to Amend Pleadings has been filed and not previously ruled
upon, the Commissioner or Deputy Commissioner may permit amendment of
pleadings at the time of the hearing and then proceed to a determination of
the case based on the evidence presented at the hearing without requiring
dismiss or for summary judgment for the defendant on the ground that
plaintiff has failed to specifically name the individual officer, agent,
employee or involuntary servant whose alleged negligence gave rise to the
claim, or failure to properly name the department or agency of the State
with whom such person was employed, shall be ruled upon following discovery.
In appropriate cases, motions may be set for hearing before a Commissioner or Deputy Commissioner upon request of either party or upon the Commission’s own motion.
Industrial Commission may, on its own motion, order a hearing,
rehearing, or pre-trial conference of any case in dispute.
Industrial Commission shall set a contested case for hearing in a location
deemed convenient to witnesses and the Industrial Commission, and conducive
to an early and just resolution of disputed issues.
involving a plaintiff who is an inmate in the North Carolina Department of
Correction, the Industrial Commission shall set contested cases for hearing
In the prison unit where plaintiff is incarcerated or in some other prison facility or secure facility agreed upon by the Industrial Commission and the Attorney General’s office; or
videoteleconference according to procedures adopted by the Industrial
telephone conference according to procedures adopted by the Industrial
Industrial Commission may issue writs of habeas corpus ad testificandum
in cases arising under the Tort Claims Act. Requests for issuance of a writ
of habeas corpus ad testificandum should be sent to the Dockets Department
of the Industrial Commission if the case has not been set on a calendar for
hearing. If the case has been set for hearing, the request should be sent to
the Deputy Commissioner or Commissioner before whom the case is set.
Industrial Commission shall give reasonable notice of a hearing in every
case. A motion for a continuance shall be allowed only in the discretion of
the Commissioner or Deputy Commissioner before whom the case is set. Where a
party has not notified the Industrial Commission of the attorney
representing the party prior to the mailing of calendars for hearing, notice
to that party shall constitute notice to the party’s attorney.
involving minimal property damage, the Commission may, upon its own motion
or upon the motion of either party, order a telephonic hearing on the matter.
In cases of
multiple claim filings by an inmate, the Industrial Commission may
consolidate all of the claims for hearing upon the motion of either party or
upon the Commission’s own motion. Other cases may be consolidated according
to Rule 42 of the North Carolina Rules of Civil Procedure.
In the event of inclement weather or natural disaster, hearings shall be cancelled if the proceedings in the General Court of Justice are cancelled in the county in which the Tort Claims hearings are set.
In addition to the filing fee, the Industrial Commission may tax costs against a party. Costs payable to the Industrial Commission are due upon receipt of a bill or statement from the Commission.
ARTICLE III. APPEALS TO THE FULL COMMISSION
Notice of Appeal to the Full Commission
A letter or other document expressing an intent to appeal, which is filed within 15 days of receipt of the Order or Decision and Order of the Industrial Commission, and which clearly sets forth the Order or Decision and Order from which appeal is taken, shall be considered notice of appeal to the Full Commission within the meaning of N.C. Gen. Stat. §143-292. Such notice shall include a written statement confirming service of a copy of the notice by mail or in person on the opposing party or parties.
Upon receipt of notice of appeal, the Industrial Commission, after taxing appropriate costs, will prepare and supply to all parties a transcript of the record of the case and decision from which appeal is being taken to the Full Commission.
Assignments of Error
The appellant shall, within 25 days of receipt of the transcript of the record, or receipt of notice that there will be no transcript of the record, file in triplicate with the Industrial Commission, a written statement of the proposed issues that the appellant intends to present on appeal. The statement shall certify service of a copy by mail or in person upon the opposing party or parties. Proposed issues on appeal are to facilitate the preparation of the record on appeal and shall not limit the scope of the issues presented on appeal in appellant’s brief.
Dismissal of Appeal
Failure to file assignments of error may result in the dismissal of the appeal either upon the motion of the non-appealing party or upon the Full Commission’s own motion.
brief shall be filed with the Industrial Commission in triplicate no later
than 25 days after receipt of the transcript of the record or receipt of
notice that there will be no transcript.
appellee’s brief shall be filed with the Industrial Commission in triplicate
no later than 25 days after the service of appellant’s brief. When an
appellant fails to file a brief, appellee shall file
his brief within 25 days after appellant’s time for filing a brief has
expired. If both parties appeal, they shall each file an appellant’s and
appellee’s brief on the schedule set forth herein. The parties may file with
the Docket Director a written stipulation to a single
extension of time for each party, not to exceed 30 days, if the matter has
not been calendared for hearing.
A party who
fails to file a brief will not be allowed oral argument before
the Full Commission. Cases should be cited by North Carolina Reports, and
preferably, to Southeastern Reports. Counsel shall not discuss matters
outside the record, assert personal opinions or relate personal experiences,
or attribute unworthy acts or motives to opposing counsel.
filed pursuant to this Rule shall be accompanied by a written certification
that the brief has been served by mail or in person upon the opposing party
Motion for New Hearing
A Motion for a New Hearing must be filed in writing, and supported by Affidavit. Such motions filed during the pendency of an appeal to the Full Commission shall be argued before the Full Commission at the time of the hearing of the appeal.
Motions Before Full Commission
During the pendency of an appeal to the Full Commission, any motion by either party shall be filed in triplicate with the Industrial Commission and directed to the Chair if the case has not been calendared. If the case has been calendared the motion shall be directed to the Chair of the Full Commission panel before whom the case is set. Every motion shall certify, in writing, that it has been served by mail or in person upon the opposing party or parties.
Motions for Reconsideration of a decision of the Full Commission shall be directed to the Commissioner who authored the Order or Decision and Order.
When a case is appealed to the Full Commission or to the Court of Appeals, all Orders or Decisions and Orders of a Deputy Commissioner or the Full Commission are stayed pending appeal.
No new evidence will be presented to, or heard by, the Full Commission unless the Commission in its discretion permits.
Waiver of Oral Argument
Either or both parties, with permission of the Full Commission, may waive oral argument before the Full Commission. The Full Commission may in its discretion order that all oral argument in a particular case will be waived. If oral argument is waived by either of these methods, the Full Commission will issue a decision, based on the record, assignments of error, and briefs.
ARTICLE IV. APPEALS TO THE COURT OF APPEALS
Rules of Appellate Procedure
Except as otherwise provided in N.C. Gen. Stat. §143-293, in every case appealed to the Court of Appeals, the North Carolina Rules of Appellate Procedure governing appeals in an ordinary civil action shall apply.
The amount of the appeal bond shall be set by the Chair of the Industrial Commission or the Chair’s designee.
Appeals to the Court of Appeals
All motions filed by the parties regarding appeal to the Court of Appeals shall be addressed to and ruled upon by the Chair of the Industrial Commission, or the Chair’s designee.
Settling Record on Appeal
Upon a proper motion, the Chair of the Industrial Commission, or the Chair’s designee, shall enter an Order settling a record on appeal after conducting a settlement conference, in accordance with the North Carolina Rules of Appellate Procedure. Settlement conferences shall be held at the Industrial Commission offices or by telephone conference.
ARTICLE V. RULES
Waiver of Rules
In the interest of justice, any Tort Claims Rule may be waived by a Commissioner, Deputy Commissioner, or the Full Commission.
Prior to adopting, deleting or amending any Tort Claims Rule of the Industrial Commission which affects the substantive rights of parties, the Industrial Commission will give at least 30 days notice of the proposed change in Rules. Such notice will be given by publishing, in a newspaper or newspapers of general circulation in North Carolina, notice of such proposed change. Such notice will include an invitation to any interested party to submit in writing any objection, suggestion or other comment with respect to the proposed Rule change or to appear before the Full Commission at a time and place designated in the notice for the purpose of being heard with respect to the proposed Rule change.
Upon failure to comply with any of the aforementioned rules, the Industrial Commission may subject the violator to sanctions outlined in Rule 37 of the North Carolina Rules of Civil Procedure, including reasonable attorney fees to be taxed against the party or counsel whose conduct necessitates the order.
Go to March 9, 2000 Order Adopting Revised Tort Claims Rules