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    "judges": [
      "Judge McGEE concurs.",
      "Judge WALKER concurs in the result."
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    "parties": [
      "Patsy Allmon, Employee, Plaintiff v. Alcatel, Inc., Employer; Cigna Insurance Company, Carrier; Defendants"
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        "text": "COZORT, Judge.\nIn this case, plaintiff suffered a back injury compensable under the North Carolina Workers\u2019 Compensation Act. Defendant resisted payment of workers\u2019 compensation benefits due plaintiff, by cutting off benefits despite contrary direction by the Industrial Commission. During the pendency of this workers\u2019 compensation dispute, plaintiff filed a separate federal claim alleging handicap discrimination. The federal discrimination claim was settled out of court in 1990, for a monetary remedy and reinstatement of plaintiff to her former position. The settlement reserved plaintiff\u2019s rights to her workers\u2019 compensation claims. Plaintiff requested a hearing with the Industrial Commission alleging she was due additional compensation because of defendant\u2019s cessation of benefits; plaintiff also alleged that a penalty should be assessed against defendant for untimely payment of benefits. The Commission held that the settlement of the federal discrimination claim constituted \u201cwages.\u201d The Commission denied plaintiff\u2019s claim for benefits. We find the Commission erred in classifying the settlement proceeds as \u201cwages,\u201d and we reverse. The facts and procedural history follow.\nThe plaintiff, Patsy Alim\u00f3n, suffered an injury on 26 July 1980 and an injury on 10 November 1980. The first injury occurred when plaintiff was hit by boxes falling from a forklift. The second injury, and the source of the present compensation controversy, resulted when a coworker tripped and hit plaintiff, knocking her down against a pallet. The second accident caused plaintiff severe injury, forcing her to undergo multiple surgical operations, including several spinal fusions.\nOn 11 March 1987, plaintiff was released by her orthopedic surgeon, with a twenty-percent permanent impairment rating of the back. Due to plaintiffs impaired condition, she was medically restricted from jobs involving certain kinds of lifting. Plaintiff sought to return to work; however, she was told by defendant-employer, on or about 29 May 1987, that no jobs were available meeting her medical requirements.\nOn 28 September 1987, defendant terminated plaintiffs temporary total disability benefits without the necessary Form 24 approval by the Industrial Commission (Commission). On 10 November 1987, the Commission ordered defendant to reinstate benefits, retroactive to the 28 September 1987 date of defendant\u2019s unilateral suspension of benefits. On 18 November 1987, the Commission repeated its order. Defendant complied with neither order. Defendant submitted a Form 24 to the Commission on or about 11 April 1988, which was approved, and which operated to terminate defendant\u2019s obligation to pay plaintiff temporary total disability.\nOn 20 June 1988, the Commission\u2019s Chief Claims Examiner (\u201cExaminer\u201d) ordered defendant to reinstate benefits withheld from plaintiff for the period during which defendant had no Form 24 Commission approval. The Examiner also vacated approval of the Form 24, nullifying its effect and reinstating plaintiff\u2019s temporary total disability payments. The effective retroactive date for benefit reinstatement was not explicitly set forth in the Examiner\u2019s order. However, the order directed defendant to pay benefits prospectively from the date of the order, until otherwise notified by the Commission. The record indicates no retroactive or prospective benefits were ever paid by defendant pursuant to the Examiner\u2019s 20 June 1988 order.\nPlaintiff filed charges of federal handicap discrimination with the United States Department of Labor in September 1989. On 2 May 1990, plaintiff and defendant settled the federal claims through an agreement entitled \u201cGeneral Release and Settlement Agreement\u201d (Agreement). This Agreement provided plaintiff with $51,235.20 in settlement proceeds and reinstatement to her former position with defendant. Plaintiff was reinstated on 4 May 1990. In the Agreement\u2019s recitals, defendant states it \u201chas agreed to this settlement solely to avoid future expense and inconvenience.\u201d As well, defendant promised to pay plaintiff $51,235.20, \u201crepresenting back pay from September 28, 1987 until May 4,1990 ....\u201d Section two of the recitals, entitled \u201cReservation of Workers\u2019 Compensation Claim,\u201d states that the Agreement \u201cdoes not constitute a waiver of any rights . . . which are compensable under applicable workers\u2019 compensation laws.\u201d Plaintiff, in recital section four, agreed specifically to withdraw her federal claim and to request termination of the Department of Labor\u2019s discrimination investigation.\nOn 17 March 1992, plaintiff filed a \u201cRequest That [a workers\u2019 compensation] Claim Be Assigned For Hearing\u201d (Request). Subsequently, a hearing was held before Industrial Commission Deputy Commissioner Charles Markham on 27 March 1992. Plaintiff\u2019s claim before the Deputy Commissioner included, inter alia, a renewed request for temporary total disability running from defendant\u2019s unilateral cessation of benefits on 28 September 1987 to 4 May 1990 (the date of plaintiff\u2019s reinstatement pursuant to the settlement agreement); and, a penalty of ten percent for untimely payment of the aforementioned temporary total disability benefits per N.C. Gen. Stat. \u00a7 9748(e) (1991). Deputy Commissioner Markham entered an opinion and award denying plaintiff\u2019s claim for additional disability compensation.\nOn appeal, the Full Commission denied plaintiff\u2019s claim for additional benefits. As part of its opinion and award filed 11 July 1994, the Full Commission reached two conclusions of law relevant to this appeal. First, the Full Commission declared that settlement proceeds from the discrimination claim were \u201cwages\u201d as a matter of law. The Full Commission then denied plaintiff\u2019s request for temporary total disability benefits, holding that the\neffect of the May 4, 1990 agreement is that plaintiff was not disabled during [the 28 September 1984 to 4 May 1990 period] cited [in the Agreement] within the meaning of the Workers\u2019 Compensation Act, because the lump sum payment replaced \u201cwages\u201d she would have been earning ....\nThe Commission determined that a ten-percent penalty was due plaintiff, pursuant to N.C. Gen. Stat. \u00a7 97-18(e), but only for the period between 10 November 1987 (the date of the Commission\u2019s first directive to defendant to pay benefits) until the date of the Form 24 approval on 26 April 1988.\nWe disagree with the Commission\u2019s conclusion that the settlement proceeds are \u201cwages\u201d as a matter of law. We also disagree with the peripd set by the Commission for assessment of the \u00a7 97-18(e) penalty. While the scope of this Court\u2019s review of Commission findings is limited to a competent evidence standard, conclusions of law are entirely reviewable for error. Grant v. Burlington Industries, Inc., 77 N.C. App. 241, 247, 335 S.E.2d 327, 332 (1985).\nDefendant characterizes plaintiff\u2019s discrimination claim as arising out of the same injury and set of facts as the claim for workers\u2019 compensation. Allowing both, defendant claims, is tantamount to handing plaintiff a \u201cdouble recovery\u201d for a single injury, an action expressly prohibited by the workers\u2019 compensation statute and case law. In Foster v. Western-Electric Co., 320 N.C. 113, 357 S.E.2d 670 (1987), our Supreme Court stated that the Workers\u2019 Compensation Act \u201cdisfavors duplicative payments for the same disability.\u201d Id. at 117, 357 S.E.2d at 673. For reasons which follow, we find Foster does not control the instant situation.\nAs opposed to the plaintiff in Foster, the instant plaintiff has alleged two distinct, separately remedial injuries. Plaintiff\u2019s first claim is based on the physical injury which led to the workers\u2019 compensation claim. The second injury claimed by plaintiff arose from defendant\u2019s alleged handicap discrimination. The Foster plaintiff sought two recoveries from a single injury: money from private disability income insurance paid for by the employer, and workers\u2019 compensation. Foster, 320 N.C. at 114, 117 n.1, 357 S.E.2d at 671, 673 n.1. The Foster Court found that the private disability payout \u201cfunction[ed] as a wage replacement program tantamount to workers\u2019 compensation.\u201d Id. at 117, 357 S.E.2d at 673. Since the private plan operated \u201cin lieu\u201d of workers\u2019 compensation, payment under both was a double recovery and was barred by statute. Id.; and see N.C. Gen. Stat. \u00a7 97-31 (1991) (workers\u2019 compensation \u201cshall be paid for disability . . . and shall be in lieu of all other compensation.\u201d) In Estes v. N.C. State University, 102 N.C. App. 52, 58, 401 S.E.2d 384, 387-88 (1991), an employer-defendant argued it was entitled to a credit against an award of temporary total disability benefits paid to its employee because the employer had also paid its disabled employee sick leave and vacation benefits. See also N.C. Gen. Stat. \u00a7 97-42 (1991) (credits allowed only when payments to employee were not due and payable under the Act when made by employer). The Estes Court determined that sick leave was often utilized for noninjury related purposes, such as a \u201cfamily illness or death in the family.\u201d Estes, 102 N.C. App. at 58, 401 S.E.2d at 387. The varying objectives of workers\u2019 compensation and sick leave led the Estes Court to determine that \u201cusing sick leave is not tantamount ... to receiving workers\u2019 compensation benefits.\u201d Id. at 59, 401 S.E.2d at 387-88. Since the sick leave benefits had \u201cnothing to do\u201d with the Workers\u2019 Compensation Act, they were \u201cnot analogous to payments under a disability and sickness plan.\u201d Id. at 59, 401 S.E.2d at 388. Thus, the benefits were not duplicative, and no set-off was due. Id.\nThe analysis of the Estes Court is instructive here, in that we do not find plaintiff\u2019s recovery for discrimination \u201canalogous to payments under a disability and sickness plan.\u201d Id. The concepts of \u201cworkplace disability\u201d and \u201chandicap discrimination\u201d are innately different, and the remedies for either necessarily distinct. The nature of the injuries are different: one is essentially physical, the other primarily based on prejudice or bias. See, e.g., Barber v. Minges, 223 N.C. 213, 216, 25 S.E.2d 837, 839 (1943) (purpose of the Act is to compel industry to take care of its injured workers); Teamsters v. United States, 431 U.S. 324, 358, 52 L.Ed.2d 396, 429 (1977) (Title VII addresses employment decisions based on illegal discriminatory criteria).\nThe Workers\u2019 Compensation Act and the federal civil rights laws address different ills and make up entirely separate bodies of law. The purpose of workers\u2019 compensation is to provide an employee with \u201cswift and sure compensation\u201d for harm resulting from workplace injury. Rorie v. Holly Farms, 306 N.C. 706, 709, 295 S.E.2d 458, 460 (1982). On the other hand, civil rights laws have a more global goal: \u201cto abolish the smallness of mind that clings to pernicious stereotypes founded not on fact but upon historical misconceptions and fear.\u201d Freeman v. Kevinator, Inc., 469 F.Supp. 999, 1000 (E.D. Mich. 1979).\nThus, federal laws against discrimination remedy injuries that often carry far-reaching social, political and economic implications. See, e.g., Memphis Community School District v. Stachura, 477 U.S. 299, 91 L.Ed.2d 249 (1986). Because Congress considers policy against discrimination to be of the highest priority, it has given the courts broad remedial power in the area of federal civil rights. Alexander v. Gardner-Denver Company, 415 U.S. 36, 44-46, 39 L.Ed.2d 147, 156-57 (1974). It appears manifest that Congress did not intend to force a worker to choose between remedies under workers\u2019 compensation and those available under federal civil rights laws. Id. at 48, 39 L.Ed.2d at 158 (legislative history of the civil rights acts evinces \u201ca congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.\u201d)\nAnother critical distinction betw\u00e9en plaintiff\u2019s workplace injury and the discrimination-based injury is the distinct causal origin of both. Plaintiff\u2019s back was injured first. Later, plaintiff filed a claim alleging defendant had made a discriminatorily based employment decision not to rehire her. Thus, the timing of the injuries was not concurrent. It is uncontradicted that defendant\u2019s alleged discrimination was based on, and arose after, plaintiff\u2019s back-related injury. Simply put, the two injuries are not the same. The settlement of a claim for federal civil rights violations is not, nor was it intended to be, a substitute for workers\u2019 compensation benefits. The Agreement clearly reserved all rights to remedies available to plaintiff under the Workers\u2019 Compensation Act. No set-off or credit is due defendant.\nThe separate but connected issue of the late payment fee is resolvable by a plain reading of the applicable statute, N.C. Gen. Stat. \u00a7 97-18(e). In pertinent part, the statute reads:\nIf any installment of compensation payable in accordance with the terms of an agreement approved by the Commission is not paid within 14 days after it becomes due . . . there shall be added to such unpaid installment an amount equal to ten per cen-tum (10%) thereof. . . unless such nonpayment is excused by the Commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.\n(Emphasis added.)\nAs we have already concluded that plaintiff\u2019s right to temporary total disability was not foreclosed by settlement of her discrimination claim, defendant\u2019s exposure to the ten-percent \u00a7 97-18(e) penalty is evident. Defendant unilaterally suspended payment of temporary total disability to plaintiff on 28 September 1987, without Commission approval or submission of a Form 24. On 10 November 1987, the Commission ordered defendant to reinstate benefits, and to pay such benefits retroactively to the date of their initial suspension on 28 September 1987. Despite repeated orders by the Commission, defendant did not reinstate the benefits due plaintiff. In fact, the record indicates that no reinstated benefits have ever been paid plaintiff. Moreover, defendant did not comply with the Commission\u2019s administrative rules which require submission and approval of a Form 24 prior to benefit termination. Industrial Commission Rule 404 (1996); and see Kisiah v. W. R. Kisiah Plumbing, 124 N.C. App. 72, 476 S.E.2d 434 (1996).\nThe Full Commission, in its opinion and award, assessed a \u00a7 97-18(e) penalty against defendant, but only for the period running from 10 November 1987 (the date of the Commission\u2019s first order to reinstate benefits), to 26 April 1988 (the date of the Commission\u2019s approval of defendant\u2019s Form 24 request). Establishment of this time frame for imposition of the penalty is error for two reasons. First, the Full Commission has failed to provide for a penalty from the date it became due, which was 28 September 1987 (the date defendant unilaterally terminated plaintiff\u2019s benefits). This failure violates \u00a7 97-18(e)\u2019s mandate to pay the penalty from the date the benefits were due, but not paid. Second, the Full Commission erred by using the approval date of the Form 24 as the termination date for the penalty, as that Form 24 was effectively vacated by the Claims Examiner on 20 June 1988.\nFailure to award the penalty for the full time period would run afoul of the long-settled policy of interpreting the Workers\u2019 Compensation Act liberally, and in favor of the employee. Dayal v. Provident Life and Accident Ins. Co., 71 N.C. App. 131, 132, 321 S.E.2d 452, 453 (1984). By the mandate of \u00a7 97-18(e), defendant is responsible for the penalty from 28 September 1987 through plaintiff\u2019s reinstatement date at Alcatel of 4 May 1990.\nIn summary the Full Commission\u2019s decision as to temporary total disability benefits due is reversed. The case is remanded to the Commission for entry of benefits and penalty consistent with this opinion.\nReversed and remanded.\nJudge McGEE concurs.\nJudge WALKER concurs in the result.",
        "type": "majority",
        "author": "COZORT, Judge."
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    ],
    "corrections": "",
    "head_matter": "Patsy Allmon, Employee, Plaintiff v. Alcatel, Inc., Employer; Cigna Insurance Company, Carrier; Defendants\nNo. COA94-1244\n(Filed 5 November 1996)\n1. Workers\u2019 Compensation \u00a7 292 (NCI4th)\u2014 federal discrimination claim \u2014 settlement proceeds not wages \u2014 termination of workers\u2019 compensation benefits error\nThe Industrial Commission erred in holding that the settlement proceeds from plaintiffs federal handicap discrimination claim against defendant employer constituted \u201cwages\u201d and she therefore was not entitled to temporary total disability benefits, since the federal discrimination claim and the worker\u2019s compensation claim were based on two separate and distinct injuries, and recovery for both would not give plaintiff double recovery for a single action.\nAm Jur 2d, Americans with Disabilities Act: Analysis and Implications \u00a7\u00a7 I, 257; Job Discrimination \u00a7 174; Workers\u2019 Compensation \u00a7\u00a7 381-384.\n2. Workers\u2019 Compensation \u00a7 301 (NCI4th)\u2014 refusal to pay benefits \u2014 assessment of penalty \u2014 appropriate time period\nThe Industrial Commission erred in assessing a penalty against defendant under N.C.G.S. \u00a7 97-18(e) only for the period running from the date of the Commission\u2019s first order to reinstate benefits to the date of the Commission\u2019s approval of defendant\u2019s Form 24 request, rather than from the date defendant unilaterally terminated plaintiff\u2019s benefits until the date of plaintiff\u2019s reinstatement, since the statute requires payment of the penalty from the date the benefits are due but not paid, and the Form 24 was effectively vacated by the Claims Examiner two months after its initial approval.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 477.\nTort liability of worker\u2019s compensation insurer for wrongful delay or refusal to make payments due. 8 ALR4th 902.\nOn appeal from the opinion and award entered on 11 July 1994 by the North Carolina Industrial Commission. Heard in the Court of Appeals 24 August 1995.\nMonroe, Wyne & Lennon, P.A., by George W. Lennon, for plaintiff appellant.\nCranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan, for defendant appellees."
  },
  "file_name": "0341-01",
  "first_page_order": 379,
  "last_page_order": 386
}
