{ "id": 11197331, "name": "ROBERT C. FELMET, Employee-Claimant v. DUKE POWER COMPANY, INC., Employer-Defendant, Self-Insured", "name_abbreviation": "Felmet v. Duke Power Co.", "decision_date": "1998-10-06", "docket_number": "No. COA97-1393", "first_page": "87", "last_page": "93", "citations": [ { "type": "official", "cite": "131 N.C. App. 87" } ], "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": "100 N.C. App. 754", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527620 ], "opinion_index": -1, "case_paths": [ "/nc-app/100/0754-01" ] }, { "cite": "402 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539448, 2545427, 2542900 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0098-03", "/nc/328/0098-01", "/nc/328/0098-02" ] }, { "cite": "393 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522687 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0330-01" ] }, { "cite": "128 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "133" }, { "page": "133" } ], "opinion_index": 0 }, { "cite": "258 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559650 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/258/0099-01" ] }, { "cite": "444 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535811 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0425-01" ] }, { "cite": "400 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545596, 2540340, 2540374, 2537916, 2545535 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0270-02", "/nc/328/0270-01", "/nc/328/0270-05", "/nc/328/0270-04", "/nc/328/0270-03" ] }, { "cite": "398 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "606" }, { "page": "606" } ], "opinion_index": 0 }, { "cite": "221 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567848 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0254-01" ] }, { "cite": "425 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "729" }, { "page": "729" }, { "page": "730", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524152 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "47" }, { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0045-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 97-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "295 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "460" } ], "opinion_index": 0 }, { "cite": "306 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573544 ], "year": 1982, "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0706-01" ] }, { "cite": "162 S.E. 223", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "pin_cites": [ { "page": "229" } ], "opinion_index": 0 }, { "cite": "202 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625164 ], "year": 1932, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc/202/0176-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1997, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 1997, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 15, "year": 1997, "pin_cites": [ { "page": "(e)" }, { "page": "(e)" }, { "page": "(g)" }, { "page": "(e)" }, { "page": "(g)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(g)" }, { "page": "(g)" }, { "page": "(g)" }, { "page": "(g)" }, { "page": "(e)" }, { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 754", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527620 ], "weight": 2, "pin_cites": [ { "page": "756" }, { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0754-01" ] } ], "analysis": { "cardinality": 566, "char_count": 13503, "ocr_confidence": 0.737, "pagerank": { "raw": 3.4083677444986663e-07, "percentile": 0.8778395960536696 }, "sha256": "e6bf4183bc118ff1054cd5807b2dd528a38b9eab6a6cc45390d64b2eea714952", "simhash": "1:03623550c5bc64da", "word_count": 2145 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and SMITH concur." ], "parties": [ "ROBERT C. FELMET, Employee-Claimant v. DUKE POWER COMPANY, INC., Employer-Defendant, Self-Insured" ], "opinions": [ { "text": "WYNN, Judge.\nRobert Felmet filed three separate workers\u2019 compensation claims relating to accidents which occurred while under Duke Power\u2019s employ. The claims were scheduled to be heard before Deputy Commissioner Berger when the parties reached an Agreement for Compromise and Settlement and Release (\u201ccompromise settlement\u201d). The parties executed the compromise settlement on 3 February 1997, and forwarded it to Deputy Commissioner Berger for approval.\nDeputy Commissioner Berger ordered the approval of the Compromise Settlement Agreement on 10 February 1997, and transmitted his order to Duke Power\u2019s counsel via facsimile the next day. On 10 March 1997, twenty-seven days after Duke Power\u2019s receipt of Deputy Berger\u2019s Order, claimant\u2019s counsel received payment satisfying the Order\u2019s terms.\nFollowing receipt of the settlement amount, claimant moved to compel payment of a 10% penalty, contending Duke Power\u2019s payment was untimely under the time of payment provision of N.C. Gen. Stat. \u00a7 97-18 (1997). Specifically, claimant contended he was entitled to receive a 10% penalty payment because: (1) the compromise settlement was unappealable, and therefore given the fifteen day appeal provision of N.C. Gen. Stat. \u00a7 97-85 (1997) did not apply, payment was due within twenty-four days; and in the alternative, (2) the compromise settlement constituted a notice of waiver of right to appeal, and therefore initiated the provision of N.C. Gen. Stat. \u00a7 97-18(e) (1997) requiring payment within ten days of said notice. On 9 April 1997, Deputy Commissioner Berger denied claimant\u2019s motion. Thereafter, the Full Commission, by Order of Commissioner Vance, affirmed Deputy Commissioner Berger\u2019s Order. On appeal, claimant assigns as error the Full Commission\u2019s denial of his Motion to Compel.\nI.\nChapter 97 of the General Statutes of North Carolina articulates this State\u2019s comprehensive workers\u2019 compensation scheme under the short title of the Workers\u2019 Compensation Act. See generally N.C. Gen. Stat. \u00a7 97 (1997). In developing the Workers\u2019 Compensation Act, the legislature included numerous sections relating to the timing of workers\u2019 compensation payments. See e.g., N.C. Gen. Stat. \u00a7\u00a7 97-18, 24, 85 (1997). These sections, by ensuring that a plaintiff receives timely recovery, further one of the Act\u2019s primary objects \u2014 \u201cto grant certain and speedy relief to injured employees . . . .\u201d See Cabe v. Parker-Graham-Sexton, Inc., 202 N.C. 176, 186, 162 S.E. 223, 229 (1932). That is, by requiring employers and insurers to pay benefits within a stated time limit, these sections \u201cprovid[e] swift and sure compensation to injured workers without the necessity of protracted litigation.\u201d See Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 709, 295 S.E.2d 458, 460 (1982).\nAt issue in the case subjudice are N.C. Gen. Stat. \u00a7\u00a7 97-17, 97-18, 97-85 which apply to the timing of appeals and payments. Under N.C. Gen. Stat. \u00a7 97-85 (1997), a party must appeal a workers\u2019 compensation award to the Full Commission within fifteen days from the date when notice of the award was given. N.C. Gen. Stat. \u00a7 97-18(e) (1997) provides that the first installment of compensation \u201cshall become due 10 days from the day following expiration of the time of appeal from the award ... or the day after notice waiving the right of appeal has been received by the Commission.\u201d Lastly, N.C. Gen. Stat. \u00a7 97-18(g) (1997) imposes a 10% penalty upon any party that fails to pay benefits within fourteen days after they become due.\nUnder the preceding payment schedule, employers can avoid being subject to the 10% penalty by tendering settlement payments within thirty-nine days after notice of the award is provided, with liability attaching on the fortieth day. That is, to calculate the date upon which the 10% penalty applies, a person must first consider the fifteen day appeal time provided under N.C. Gen. Stat. \u00a7 97-85, then add ten days as provided under N.C. Gen. Stat. \u00a7 97-18(e), and finally add fourteen days as provided under N.C. Gen. Stat. \u00a7 97-18(g).\nAlthough the payment schedule set forth in sections 97-18 and 97-85 appears to provide an unambiguous schedule regarding payments, there is some question regarding the application of this schedule to compromise settlements. Specifically, two questions must be answered: (1) whether a compromise settlement constitutes an unap-pealable order, thereby bypassing the fifteen day \u201cstay\u201d set forth in N.C. Gen. Stat. \u00a7 97-85, and accordingly making employers liable for the 10% penalty after twenty-four days, as opposed to thirty-nine days; and (2) whether the signing or approval of a compromise settlement constitutes a waiver of the right to appeal and thereby activates the requirement in N.C. Gen. Stat. \u00a7 97-18(e) that the first payment \u201cshall become due\u201d within ten days of said waiver.\nA.\nUnder N.C. Gen. Stat. \u00a7 97-17 (1997), an employee may settle a workers\u2019 compensation claim with his employer so long as the amount of compensation and the time and manner of payment are in accordance with the Workers\u2019 Compensation Act. For these settlements to be binding, however, a memorandum of the agreement must be filed with and approved by the Commission. N.C. Gen. Stat. \u00a7 97-17 (1997); Glenn v. MacDonald, 109 N.C. App. 45, 47, 425 S.E.2d 727, 729 (1993). In approving a compromise settlement, the Commission is acting in a judicial capacity, and therefore, once the Commission approves a compromise settlement, it becomes an award enforceable by court decree. Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355 (1976).\nClaimant, in arguing that compromise settlements are not appeal-able, cites our decisions in Glenn v. MacDonald, 109 N.C. App. 45, 47, 425 S.E.2d 727, 729 (1993) and Brookover v. Borden, Inc., 100 N.C. App. 754, 756, 398 S.E.2d 604, 606 (1990), disc. rev. denied, 328 N.C. 270, 400 S.E.2d 450 (1991). In Glenn, this Court stated \u201cwhere there is no finding that the [settlement] agreement itself was obtained by fraud, misrepresentation, mutual mistake or undue influence, the Full Commission may not set aside the agreement, once approved.\u201d Glenn, 109 N.C. at 49, 425 S.E.2d at 730 (emphasis added). This statement, however, only demonstrates that the Full Commission cannot set aside a compromise settlement except under limited circumstances. This statement in no way implies that a compromise settlement cannot be appealed to this Court.\nAs for claimant\u2019s reliance on Brookover, we note this Court did state that an approved compromise settlement is \u201cas binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal.\u201d Brookover, 100 N.C. App. at 756, 398 S.E.2d at 606 (1990). Although this statement ostensibly holds that approved compromise settlements are unappealable, this Court has never followed such an approach. Indeed, both this Court and the Supreme Court of North Carolina have consistently heard and decided appeals involving compromise settlements. See e.g., Vernon v. Steven L. Mabe Builders, 336 N.C. 425, 444 S.E.2d 191 (1994); Caudill v. Chatham Manufacturing Co., 258 N.C. 99, 128 S.E.2d 128, 133 (1962); Wall v. N.C. Dept. of Human Resources: Division of Youth Services, 99 N.C. App. 330, 393 S.E.2d 109 (1990), disc. rev. denied, 328 N.C. 98, 402 S.E.2d 430 (1991). In the case sub judice, we can only assume that Duke Power, when entering into this compromise settlement, relied upon our prior decisions allowing compromise settlement appeals. Duke Power was in no position to rectify the apparent conflict between our words and actions with respect to compromise settlement appeals. Therefore, fundamental fairness requires us to hold Duke Power rightfully assumed that it was entitled to appeal its compromise settlement, and accordingly be entitled to tender payment within thirty-nine days of the compromise settlement\u2019s approval.\nIn sum, we hold that to calculate the date a compromise settlement award becomes due under the Workers\u2019 Compensation Act, a party must: (1) allow the fifteen day appeal time set forth in N.C. Gen. Stat. \u00a7 97-85; (2) then add ten days pursuant to N.C. Gen. Stat. \u00a7 97-18(e); and (3) finally, add fourteen days as required under N.C. Gen. Stat. \u00a7 97-18(g). Thus, a paying party liable under a compromise settlement has thirty-nine days from the date the compromise settlement is approved to tender payment, with liability for non-payment attaching on the fortieth day.\nIn the case sub judice, Duke Power complied with the Commission\u2019s order twenty-seven days after the settlement was executed. Because Duke Power had thirty-nine days to tender payment, it is not subject to the 10% penalty in N.C. Gen. Stat. \u00a7 97-18(g).\nB.\nClaimant also contends on appeal that Duke Power is subject to the 10% penalty in N.C. Gen. Stat. \u00a7 97-18(g) because Duke Power waived its right to appeal by submitting the compromise settlement to the Industrial Commission for approval. According to claimant, Duke Power, by waiving its right to appeal, is subject to the 10% penalty in N.C. Gen. Stat. \u00a7 97-18(g) because \u00a7 97-18(e) provides that an award becomes due ten days after notice \u201cwaiving the right to appeal. . . .\u201d We disagree.\nAs stated previously, this Court has heard appeals concerning compromise settlements numerous times in the past. See e.g., Vernon v. Steven L. Mabe Builders, 336 N.C. 425, 444 S.E.2d 191 (1994); Caudill v. Chatham Manufacturing Co., 258 N.C. 99, 128 S.E.2d 128, 133 (1962); Wall v. N.C. Dept. of Human Resources: Division of Youth Services, 99 N.C. App. 330, 393 S.E.2d 109 (1990), disc. rev. denied, 328 N.C. 98, 402 S.E.2d 430 (1991). Indeed, the fact these cases were heard at the appellate level demonstrates that mere execution of a compromise settlement does not waive a party\u2019s right to appeal.\nAdditionally, we cannot accept appellant\u2019s argument because it would lead to absurd results. Specifically, N.C. Gen. Stat. \u00a7 97-18(e) provides that an award \u201cshall become due 10 days from . . . the day after notice waiving the right of appeal by all parties has been received by the Commission.\u201d (emphasis added). Therefore, if this court considers a compromise settlement as a waiver of the right to appeal, then an award becomes due ten days after the Commission receives the compromise settlement. Accordingly, if the Commission takes 9 days to approve the compromise settlement, then the employer only has two days before the award becomes due. Indeed, in the case sub judice, the Commission approved the compromise settlement seven days after receiving it. Therefore, under the appellant\u2019s theory, the award was due only four days after the Commission\u2019s approval. Surely the legislature did not intend such a result.\nIn conclusion, both case law and statutory construction guide us to conclude that a compromise settlement does not constitute a waiver of the right to appeal. Accordingly, because the compromise settlement did not amount to a waiver of the right to appeal, N.C. Gen. Stat. \u00a7 97-18(e) was not automatically triggered. Therefore, with respect to this argument only, Duke Power was entitled to take the full thirty-nine days to comply with the Commission\u2019s order.\nAffirmed.\nJudges McGEE and SMITH concur.\nThis opinion was authored and delivered to the Clerk of the North Carolina Court of Appeals by Judge Wynn prior to 1 October 1998.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Seth M. Bemanke, for claimant-appellant Robert C. Felmet.", "Morris York Williams Surles & Brearley, by Jennifer Brearly, for defendant-appellee Duke Power Company, Inc." ], "corrections": "", "head_matter": "ROBERT C. FELMET, Employee-Claimant v. DUKE POWER COMPANY, INC., Employer-Defendant, Self-Insured\nNo. COA97-1393\n(Filed 6 October 1998)\n1. Workers\u2019 Compensation\u2014 timely payment \u2014 compromise settlement \u2014 appealable\nDefendant in a worker\u2019s compensation action was not subject to the 10% penalty in N.C.G.S. \u00a7 97-18(g) for paying a compromise settlement within 27 days of receipt of the Commission order approving the settlement. Although plaintiff contended that compromise settlements are not appealable, so that employers are liable for the penalty after 24 days, and a statement in Brookover v. Borden, Inc., 100 N.C. App. 754, ostensibly holds that approved compromise settlements are unappealable, the Court of Appeals has never followed such an approach and the Court of Appeals and Supreme Court have consistently heard and decided appeals involving compromise settlements. Fundamental fairness requires a holding that defendant rightfully assumed that it was entitled to appeal its compromise settlement and was accordingly entitled to tender payment within thirty-nine days of the compromise settlement\u2019s approval.\n2. Workers\u2019 Compensation\u2014 timely payment \u2014 compromise settlement \u2014 not a waiver of appeal\nA compromise settlement did not amount to a waiver of the right to appeal in an action in which plaintiff sought the 10% penalty under N.C.G.S. \u00a7 97-18(g) for payment of a worker\u2019s compensation settlement more than ten days after waiving the right to appeal. The fact that cases involving compromise settlements have been heard at the appellate level demonstrates that execution of a compromise settlement does not waive a party\u2019s right to appeal; additionally, plaintiff\u2019s argument would lead to absurd results which the legislature did not intend.\nAppeal by claimant-appellant Robert C. Felmet from an order entered 15 August 1997 by Commissioner Coy M. Vance of the Full Industrial Commission. Heard in the Court of Appeals 20 August 1998.\nSeth M. Bemanke, for claimant-appellant Robert C. Felmet.\nMorris York Williams Surles & Brearley, by Jennifer Brearly, for defendant-appellee Duke Power Company, Inc." }, "file_name": "0087-01", "first_page_order": 121, "last_page_order": 127 }