{
  "id": 11915528,
  "name": "ERTHADEAN JONES, Employee, Plaintiff v. YATES MOTOR COMPANY, Employer; SELF-INSURED (SEDGWICK OF THE CAROLINAS, INC.), Servicing Agent, Defendants",
  "name_abbreviation": "Jones v. Yates Motor Co.",
  "decision_date": "1995-12-05",
  "docket_number": "No. COA95-48",
  "first_page": "84",
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  "casebody": {
    "judges": [
      "Judges LEWIS and MARTIN, MARK D. concur."
    ],
    "parties": [
      "ERTHADEAN JONES, Employee, Plaintiff v. YATES MOTOR COMPANY, Employer; SELF-INSURED (SEDGWICK OF THE CAROLINAS, INC.), Servicing Agent, Defendants"
    ],
    "opinions": [
      {
        "text": "WALKER, Judge.\nPlaintiff was employed by defendant as a mechanic where he was responsible for working on and replacing transmissions. Plaintiff alleges that he was injured as a result of an accident arising out of and in the course of his employment when a transmission, weighing between 150 and 200 pounds, fell on his chest while he was attempting to install it in a vehicle. This case was heard on 13 August 1992 by Deputy Commissioner Gregory M. Willis, who found that plaintiffs testimony was not credible and that the alleged accident of 8 July 1991 did not occur. Accordingly, the deputy commissioner entered an Opinion and Award on 4 May 1993 concluding that plaintiff did not sustain an injury by accident arising out of and in the course of his employment with defendant-employer and denied plaintiffs claim.\nOn 19 May 1993 plaintiff appealed to the Industrial Commission from the deputy commissioner\u2019s Order. On the same day, plaintiff\u2019s attorney made a motion to withdraw from the case, which motion was granted. On 11 August 1993, plaintiff filed a Form 44 Application for Review with the Full Commission, but did not forward a copy to defense counsel until November 1994. Plaintiff also neglected to file an appellant\u2019s brief with the Commission. Accordingly, defendant filed a Motion to Dismiss plaintiff\u2019s appeal to the Commission on the ground that plaintiff did not file a Form 44 or an appellant\u2019s brief within 25 days from receiving the transcript as required by Rule 701 of the Rules of the North Carolina Industrial Commission.\nOn 28 January 1994, the Commission, without hearing argument from the parties, affirmed the deputy commissioner\u2019s Order denying plaintiff\u2019s claim for compensation finding that plaintiff had not shown good grounds for the Commission to reconsider the evidence.\nOn 24 February 1994, plaintiff wrote a letter to the Commission requesting a hearing on the ground that he was not present or notified about the 28 January 1994 hearing. On 23 March 1994, the Commission advised plaintiff that it received his notice of appeal to the Court of Appeals. Thereafter, on 3 May 1993, plaintiff notified the Commission that he was withdrawing his appeal to the Court of Appeals. The Commission entered an order on 31 May 1994 withdrawing plaintiff\u2019s appeal, vacating its 28 January 1994 Opinion and Award, and ordering that plaintiff\u2019s appeal to the Commission be scheduled on the next available calendar.\nOn 20 July 1994, the Commission heard oral argument from the defendant\u2019s counsel and allowed plaintiff to \u201crecap . . . the case of record on his own behalf.\u201d On 26 September 1994, the Commission entered a second Opinion and Award finding plaintiffs testimony to be credible and concluding that plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer thereby reversing the deputy commissioner\u2019s decision.\nOn appeal defendant contends that the Commission\u2019s 28 January 1994 Opinion and Award should be reinstated because the Commission lacked the authority to vacate that opinion. Defendant argues that the Commission erred in reconsidering the evidence and reversing the findings of fact and conclusions of law contained in the 28 January 1994 Opinion and Award because plaintiff failed to file a timely motion to reconsider the evidence.\nDefendant correctly states the requirements of N.C. Gen. Stat. \u00a7 97-85 as follows:\nIf application is made to the Commission within 15 days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award.\nN.C. Gen. Stat. \u00a7 97-85 (1991).\nHowever, this statute is not dispositive in the present case. We find Long v. Reeves, 77 N.C. App. 830, 336 S.E.2d 98 (1985) to be instructive on the issue of whether the Commission had authority to vacate the earlier opinion. In Reeves, neither defendant nor counsel for defendant was present at a hearing where the deputy commissioner ordered defendant to pay workers\u2019 compensation to the plaintiff. Id. at 830, 336 S.E.2d at 99. More than 15 days after the entry of this order, defendant made a motion pursuant to N.C. Gen. Stat. \u00a7 97-85 for a new hearing on the ground that he had not received notice of the hearing before the deputy commissioner. Id. This Court held that the Commission should have treated defendant\u2019s motion as one made pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b), and, on remand, should conduct a hearing on whether defendant was afforded \u201creasonable notice.\u201d Id. at 831-832, 336 S.E.2d 99 (1985).\nHere, plaintiff contends that he was not notified to appear before the Commission on 28 January 1994. Upon receipt of the Opinion and Award, plaintiff immediately called the Commission where he was instructed to write a letter to Chairman Howard Bunn requesting another hearing before the Commission. Plaintiff, who apparently was unaware of the 15-day period in which to file a timely motion, made a motion for reconsideration on 24 February 1994. Although plaintiff\u2019s motion was made after the 15 days allowed under N.C. Gen. Stat. \u00a7 97-85, Rule 60(h) merely requires that a motion for relief from the judgment be filed within a reasonable time. N.C. Gen. Stat. \u00a7 1A-1, Rule 60 (1990). In this case, we cannot conclude that the time period within which plaintiff filed his motion was unreasonable. In sum, the Commission should have considered the motion as a Rule 60(b) motion for relief from the judgment. See Long v. Reeves, 77 N.C. App. 830, 336 S.E.2d 98 (1985). Accordingly, this case is remanded for \u2022 a hearing to determine if plaintiff is entitled to relief pursuant to Rule 60(b).\nIn view of our treatment of defendant\u2019s first assignment of error we need not reach the remaining assignments of error. The Order dated 31 May 1994 and the Opinion and Award dated 26 September 1994 are hereby vacated and this case is remanded for a hearing to determine whether plaintiff is entitled to relief from the 28 January 1994 judgment.\nReversed and remanded.\nJudges LEWIS and MARTIN, MARK D. concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Erthadean Jones, plaintiff-appellant, pro se.",
      "Teague, Campbell, Dennis & Gorman, by Bruce A. Hamilton and Karen K. Prather, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "ERTHADEAN JONES, Employee, Plaintiff v. YATES MOTOR COMPANY, Employer; SELF-INSURED (SEDGWICK OF THE CAROLINAS, INC.), Servicing Agent, Defendants\nNo. COA95-48\n(Filed 5 December 1995)\nWorkers\u2019 Compensation \u00a7 412 (NCI4th)\u2014 no notice of hearing \u2014 motion for relief from judgment \u2014 timeliness\nWhere plaintiff contended that he was not notified to appear at the hearing before the Industrial Commission on his appeal from the deputy commissioner\u2019s order, and he wrote a letter to the Commission on 24 February 1994 requesting a hearing on the ground that he was not present or notified about the 28 January 1994 hearing, plaintiff\u2019s motion for reconsideration, though made after the 15 days allowed under N.C.G.S. \u00a7 97-85, was nevertheless filed within a reasonable time, and the Commission should have considered the motion as a Rule 60(b) motion for relief from judgment. N.C.G.S. \u00a7 1A-1, Rule 60(b).\nAm Jur 2d, Judgments \u00a7\u00a7 742, 769-772; Workers\u2019 Compensation \u00a7 686.\nSupreme Court\u2019s construction and application of Rule 60(b) of Federal Rules of Civil Procedure, allowing relief from judgment or order. 116 L. Ed. 2d 1045.\nAppeal by defendant from the Opinion and Award filed by the North Carolina Industrial Commission 26 September 1994. Heard in the Court of Appeals 5 October 1995.\nErthadean Jones, plaintiff-appellant, pro se.\nTeague, Campbell, Dennis & Gorman, by Bruce A. Hamilton and Karen K. Prather, for defendant-appellant."
  },
  "file_name": "0084-01",
  "first_page_order": 118,
  "last_page_order": 121
}