{ "id": 8527987, "name": "SUSAN B. HARDIN, Ex-Wife and KELLY HARDIN, Minor Daughter of RANDY HARDIN, Deceased, Employee, Plaintiff v. VENTURE CONSTRUCTION COMPANY, Employer; CNA INSURANCE COMPANY, Carrier; Defendants", "name_abbreviation": "Hardin v. Venture Construction Co.", "decision_date": "1992-10-20", "docket_number": "No. 9110IC884", "first_page": "758", "last_page": "761", "citations": [ { "type": "official", "cite": "107 N.C. App. 758" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "252 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570021 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0683-01" ] }, { "cite": "245 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550705 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0086-01" ] }, { "cite": "259 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571139, 8571075, 8571173, 8571107, 8571195 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0298-03", "/nc/298/0298-01", "/nc/298/0298-04", "/nc/298/0298-02", "/nc/298/0298-05" ] }, { "cite": "254 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548021 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0127-01" ] }, { "cite": "374 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "92 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527201 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0478-01" ] }, { "cite": "414 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "105 N.C. App. 633", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524766 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0633-01" ] } ], "analysis": { "cardinality": 370, "char_count": 5944, "ocr_confidence": 0.763, "pagerank": { "raw": 2.405226382112421e-07, "percentile": 0.7993429346653029 }, "sha256": "7e7cce804b306790ed7297a75292dc2c50635546116a36171f3b2be247644d00", "simhash": "1:1154e1e9d5612744", "word_count": 951 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Wynn concurs.", "Judge Lewis concurs in the result." ], "parties": [ "SUSAN B. HARDIN, Ex-Wife and KELLY HARDIN, Minor Daughter of RANDY HARDIN, Deceased, Employee, Plaintiff v. VENTURE CONSTRUCTION COMPANY, Employer; CNA INSURANCE COMPANY, Carrier; Defendants" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nOn 1 May 1991, the North Carolina Industrial Commission (full Commission) entered the following order:\nThe undersigned have reviewed the record with reference to the errors alleged and find no reversible error.\nIn view of the foregoing, the Full Commission Affirms and ADOPTS as its own the Opinion and Award as filed.\nIt is ORDERED that this matter is REMANDED to the Deputy Commissioner for taking such further evidence as he deems necessary to determine the plaintiff\u2019s average weekly wage for the purposes of the compensation payable. It is FURTHER ORDERED that plaintiff forthwith submit to Deputy Commissioner Garner copies of the decedent\u2019s income tax returns for periods including the twelve months preceding his death, and that the defendant submit to the Deputy Commissioner copies of its records of the decedent\u2019s draws and payments pursuant to subcontracts entered into with defendant Venture. The parties shall serve opposing parties with copies of the said documents when submitted.\nOnce again, the full Commission has failed to carry out its duties pursuant to G.S. 97-85 and has compounded its failure by remanding the matter to the Deputy Commissioner to carry out the duties of the full Commission. G.S. 97-85; Vieregge v. North Carolina State University, 105 N.C. App. 633, 414 S.E.2d 771 (1992); Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610 (1988).\nIn the present case, defendants have attempted to appeal from an order of the Industrial Commission which is not final on its face, the Commission having enumerated the matters yet to be determined. G.S. 7A-29 and Rule 18(b)(2) of the North Carolina Rules of Appellate Procedure allow parties to appeal from final decisions of the North Carolina Industrial Commission. No appeal, however, lies from an interlocutory order of the Industrial Commission. Lynch v. M.B. Kahn Construction Co., 41 N.C. App. 127, 254 S.E.2d 236, disc. review denied, 298 N.C. 298, 259 S.E.2d 914 (1979); Vaughn v. North Carolina Dept. of Human Resources, 37 N.C. App. 86, 245 S.E.2d 892, aff\u2019d, 296 N.C. 683, 252 S.E.2d 792 (1978).\nThe action of the full Commission in remanding the matter to the Deputy Commissioner to \u201ctak[e] such further evidence as he deems necessary to determine the plaintiff\u2019s average weekly wage\u201d is a perfect example of the failure of the full Commission to carry out its duties which results in great delay in the employee receiving the benefits to which the Commission itself finds he is entitled. The \u201cyo-yo\u201d procedure, up and down, up and down, in which the full Commission engages works to defeat the very purpose of the Workers\u2019 Compensation Act. The North Carolina Industrial Commission is the only agency authorized to enter a final award in these cases. We have no authority to do so. We can only remand the proceeding to the full Commission to enter a final award which we hope will bring the matter to a conclusion, and the daughter of the deceased employee will finally receive the benefits to which she is entitled.\nAppeal dismissed.\nJudge Wynn concurs.\nJudge Lewis concurs in the result.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "Harold F. Greeson for plaintiff, appellees.", "Young, Moore, Henderson & Alois, P.A., by Joseph W. Williford and Richard J. Archie, for defendant, appellants." ], "corrections": "", "head_matter": "SUSAN B. HARDIN, Ex-Wife and KELLY HARDIN, Minor Daughter of RANDY HARDIN, Deceased, Employee, Plaintiff v. VENTURE CONSTRUCTION COMPANY, Employer; CNA INSURANCE COMPANY, Carrier; Defendants\nNo. 9110IC884\n(Filed 20 October 1992)\n1. Master and Servant \u00a7 94.3 (NCI3d)\u2014 workers\u2019 compensation \u2014 remand for evidence and findings \u2014failure of Commission to carry out duties\nThe full Industrial Commission failed to carry out its duties under N.C.G.S. \u00a7 97-85 when it remanded a workers\u2019 compensation proceeding to the hearing commissioner to take further evidence and determine the deceased employee\u2019s average weekly wage.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 686, 687.\n2. Master and Servant \u00a7 95 (NCI3d)\u2014 workers\u2019 compensation\u2014 interlocutory order \u2014no right of appeal\nNo appeal lies from the interlocutory order of the Industrial Commission remanding a workers\u2019 compensation proceeding to the hearing commissioner to take further evidence and determine the deceased employee\u2019s average weekly wage.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 688, 689.\nJudge LEWIS concurs in the result.\nAPPEAL by defendants from a decision of the North Carolina Industrial Commission (full Commission) entered 1 May 1991. Heard in the Court of Appeals 21 September 1992.\nThis is a proceeding wherein plaintiff Kelly Hardin seeks to recover benefits pursuant to the Worker\u2019s Compensation Act for the wrongful death of her father Randy Hardin which occurred in the course of his employment with defendant Venture Construction Company.\nThe record indicates the following: On 24 February 1987, while working on a job for defendant employer, the decedent fell from a roof approximately twelve feet high and hit his head on a concrete floor. As a result of this fall, Randy Hardin went into a coma and died on 9 April 1987.\nOn 25 February 1987, defendant employer filed a Form 19 reporting the accident. When plaintiff and defendant employer\u2019s insurance carrier were unable to agree on compensation, plaintiff requested a hearing before the Industrial Commission.\nThe hearing was held on 29 June 1989 before Deputy Commissioner Edward Garner, Jr. On 16 January 1990, Deputy Commissioner Garner entered a decision awarding plaintiff compensation pursuant to the statute at an unspecified rate since no evidence had been presented as to decedent\u2019s average weekly wage.\nOn 2 February 1990, defendants appealed the decision of the Deputy Commissioner to the full Commission. The appeal was heard by the full Commission, and a decision was entered affirming the deputy\u2019s award and remanding the matter to the deputy for the taking of further evidence to determine plaintiffs average weekly wage. Defendants appealed.\nHarold F. Greeson for plaintiff, appellees.\nYoung, Moore, Henderson & Alois, P.A., by Joseph W. Williford and Richard J. Archie, for defendant, appellants." }, "file_name": "0758-01", "first_page_order": 786, "last_page_order": 789 }