{ "id": 11434679, "name": "SAMUEL J. MORRIS, Employee, Plaintiff v. L.G. DEWITT TRUCKING, INC., Employer; SELF-INSURED, (Carolina Risk Managers, Inc.), Defendant", "name_abbreviation": "Morris v. L.G. Dewitt Trucking, Inc.", "decision_date": "2001-05-01", "docket_number": "No. COA00-127", "first_page": "339", "last_page": "343", "citations": [ { "type": "official", "cite": "143 N.C. App. 339" } ], "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": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "527 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132258, 131943, 132107, 131921, 132251 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0094-04", "/nc/350/0094-05", "/nc/350/0094-01", "/nc/350/0094-02", "/nc/350/0094-03" ] }, { "cite": "504 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "817" }, { "page": "818" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11197331 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "91" }, { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0087-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 9748", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(g)" }, { "page": "(g)" }, { "page": "(g)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(g)" }, { "page": "(e)" }, { "page": "(g)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 403, "char_count": 10279, "ocr_confidence": 0.763, "pagerank": { "raw": 5.767998294065762e-08, "percentile": 0.36048182731889 }, "sha256": "edd5f9dcc018eb7a8392af9dfeac106fc6d90ee708bd01290b556495825ad9ac", "simhash": "1:b39f5ee4723eee1f", "word_count": 1662 }, "last_updated": "2023-07-14T21:26:47.079244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and HUDSON concur." ], "parties": [ "SAMUEL J. MORRIS, Employee, Plaintiff v. L.G. DEWITT TRUCKING, INC., Employer; SELF-INSURED, (Carolina Risk Managers, Inc.), Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nSamuel J. Morris (Plaintiff) appeals an opinion and award of the Full Commission of the North Carolina Industrial Commission (the Commission) filed 20 September 1999 in favor of L.G. Dewitt Trucking, Inc., Self-Insured (Defendant).\nThe undisputed facts show that Plaintiff suffered a compensable injury on 4 March 1993. On 16 December 1997, Plaintiff and Defendant entered into an \u201cAGREEMENT ON FINAL SETTLEMENT AND RELEASE\u201d (the Agreement). The Agreement, which provided Plaintiff would receive a lump sum settlement payment of $375,000.00 from Defendant, was approved by the Executive Secretary of the Commission on 30 December 1997. The Agreement contained the following pertinent language: \u201cThis [Agreement is made expressly subject to the approval of the North Carolina Industrial Commission by its award duly issued and the same shall be binding upon all parties when approved by said Commission.\u201d Defendant received the order approving the Agreement on 31 December 1997. On Monday, 9 February 1998, 40 days subsequent to Defendant\u2019s receipt of the order, Plaintiffs counsel received payment in the amount of $375,000.00 from Defendant.\nIn a petition dated 9 February 1998, Plaintiff requested the Commission order Defendant to pay a 10% late penalty, pursuant to N.C. Gen. Stat. \u00a7 97-18(g), based on Defendant\u2019s alleged late payment of funds due under the Agreement. In an opinion and award filed 20 September 1999, the Commission made the following pertinent findings of fact:\n3. On December 30, 1997, the Industrial Commission entered an Order approving the . . . Agreement. Defendant received this Order on December 31, 1997.\n5. Counsel for [PJlaintiff received [payment pursuant to the Agreement] on Monday, February 9, 1998.\n6. The thirty-ninth day following [Defendant\u2019s receipt of the Order [approving the Agreement] fell on February 8, 1998 (a Sunday).\nBased on these findings of fact, the Commission made the following pertinent conclusions of law:\n3. Defendant had thirty-nine days from receipt of the Order [approving the Agreement] to tender payment to . . . [Plaintiff. . . . Since the thirty-ninth day in this case fell on a Sunday, [Defendant had until Monday, February 9, 1998 to tender the settlement funds to . . . [P]laintiff. Rule 609(8) of the Rules of the Industrial Commission.\n4. Because [Defendant made timely payment of compensation within fourteen (14) days after it became due, [P]laintiff is not entitled to a ten percent (10%) penalty pursuant to N.C. Gen. Stat. \u00a7 9748(g).\nThe Commission, therefore, denied Plaintiffs petition for an order requiring Defendant to pay a 10% penalty pursuant to section 9748(g).\nThe dispositive issue is the number of days within which a defendant must pay a compromise settlement entered into with a plaintiff pursuant to N.C. Gen. Stat. \u00a7 97-17 before the defendant may be assessed a penalty pursuant to N.C. Gen. Stat. \u00a7 9748(g).\nN.C. Gen. Stat. \u00a7 97-17 provides that parties to a workers\u2019 compensation action may enter into a settlement agreement, and any such agreement must be \u201cfiled by [the] employer with and approved by the Industrial Commission.\u201d N.C.G.S. \u00a7 97-17 (1999). Rule 502 of the Workers\u2019 Compensation Rules provides that if a settlement is reached in a case which is \u201ccurrently calendared for hearing before a Commissioner or Deputy Commissioner,\u201d then the settlement agreement \u201cshall be sent [for approval] directly to that Commissioner or Deputy Commissioner at the Industrial Commission.\u201d Workers\u2019 Comp. R. N.C. Indus. Comm\u2019n 502(4), 2001 Ann. R. N.C. 754-55. If, however, a settlement is reached in a case \u201c[b]efore a case is calendared, or once a case has been continued, or removed, or after the filing of an Opinion and Award, all compromise settlement agreements shall be directed to the Executive Secretary of the Industrial Commission.\u201d Id. Thus, depending on whether a case has been calendared at the time a settlement agreement is sent to the Industrial Commission for approval, approval of the settlement agreement may be considered by the Executive Secretary or by a deputy commissioner or commissioner before which a hearing has been calendared.\nN.C. Gen. Stat. \u00a7 9748(g) provides: \u201cIf any installment of compensation 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-um (10%) thereof. . . .\u201d N.C.G.S. \u00a7 9748(g) (1999). In Felmet v. Duke Power Co., 131 N.C. App. 87, 91, 504 S.E.2d 815, 817 (1998), disc. review denied, 350 N.C. 94, 527 S.E.2d 666 (1999), this Court set forth the following formula for determining when payment under a compromise settlement entered into pursuant to section 97-17 \u201cbecomes due\u201d for the purposes of section 9748(g): \u201c(1) allow the fifteen day appeal time set forth in N.C. Gen. Stat. \u00a7 97-85 [or Rule 703(1)]; (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).\u201d Pursuant to this formula, the Felmet Court held a defendant who is party to a compromise settlement has thirty-nine days from the date notice of the order approving the compromise settlement is given to the defendant to make any payment due pursuant to the compromise settlement without incurring a penalty under section 97-18(g). Id.\nIn this case, the Commission found as fact that Defendant received the order from the Executive Secretary of the Industrial Commission approving the Agreement on 31 December 1997. Defendant, therefore, had thirty-nine days from 31 December 1997 to make the payment required by the Agreement without being assessed a 10% penalty under section 97-18(g). As 8 February 1998, the thirty-ninth day following 31 December 1997, fell on a Sunday, Defendant had until 9 February 1998 to pay Plaintiff -without incurring a penalty. See Workers\u2019 Comp. R. N.C. Indus. Comm\u2019n 609(8), 2001 Ann. R. N.C. 759-60 (when last day of period falls on a Saturday, Sunday, or legal holiday for purposes of computing time period prescribed by Workers\u2019 Compensation Act, the \u201cperiod runs until the end of the next day which is not a Saturday, Sunday or a legal holiday\u201d). Defendant\u2019s payment under the Agreement, which was received on 9 February 1998, was, therefore, timely for the purposes of section 97-18(g). Accordingly, the Commission properly denied Plaintiff\u2019s petition for an order requiring Defendant to pay a 10% penalty under section 97-18(g).\nAffirmed.\nJudges McCULLOUGH and HUDSON concur.\n. The fifteen day time limit for appealing an award under section 97-85 or for appealing an order made in \u201csummary manner\u201d under Rule 703(1) begins to run from the date notice of the award or order is given. N.C.G.S. \u00a7 97-85 (1999); Workers\u2019 Comp. R. N.C. Indus. Comm\u2019n 703(1), 2001 Ann. R. N.C. 765.\nAlthough section 97-17 provides that \u201cno party to any agreement for compensation approved by the Industrial Commission shall thereafter be heard to deny the truth of the matters therein set forth,\u201d N.C.G.S. \u00a7 97-17, we do not read section 97-17 as denying a party to a settlement agreement the right to appeal from an order entered by the Industrial Commission approving that settlement agreement. In Felmet, this Court held a party does not, by entering into a settlement agreement pursuant to section 97-17, waive his right to appeal from an order approving that settlement agreement. Felmet, 131 N.C. App. at 92, 504 S.E.2d at 818. Moreover, the Workers\u2019 Compensation Rules specifically provide that a party to a settlement agreement approved by the Executive Secretary has the right to appeal from the order approving the settlement agreement. Workers\u2019 Comp. R. N.C. Indus. Comm\u2019n 703(1), 2001 Ann. R. N.C. 764-65.\nPlaintiff argues in his brief to this Court that the Agreement \u201ccontained language that it was binding on the parties upon approval by the North Carolina Industrial Commission,\u201d therefore, the Agreement constituted a waiver of the right to appeal from the order approving the Agreement. We disagree. While the parties to a settlement agreement may waive their right to appeal the order approving that agreement, see N.C.G.S. \u00a7 97-I8(e) (1999), the language of the settlement agreement must specifically state the parties are waiving the right to appeal in order to constitute a waiver. Thus, general language that the terms of the settlement agreement are binding on the parties upon approval of the settlement agreement does not constitute a waiver of the right to appeal from the order approving the settlement agreement.\n. Plaintiff argues in his brief to this Court that \u201c[t]he Felmet decision . . . should be reconsidered and overruled.\u201d This Court, however, is bound by a prior decision of another panel of this Court addressing the same question but in another case. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Accordingly, we are bound by this Court\u2019s holding in Felmet.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Poisson, Poisson, Bower & Clodfelter, by Fred D. Poisson, Jr., for plaintiff-appellant.", "Teague, Campbell, Dennis & Gorham, L.L.P., by Bruce A. Hamilton and Tracey L. Jones, for defendant-appellee." ], "corrections": "", "head_matter": "SAMUEL J. MORRIS, Employee, Plaintiff v. L.G. DEWITT TRUCKING, INC., Employer; SELF-INSURED, (Carolina Risk Managers, Inc.), Defendant\nNo. COA00-127\n(Filed 1 May 2001)\nWorkers\u2019 Compensation\u2014 settlement agreement \u2014 timeliness of payment\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff employee was not entitled to a ten percent penalty under N.C.G.S. \u00a7 97-18(g) based on defendant employer\u2019s alleged failure to provide timely payment within thirty-nine days from receipt of the order approving the parties\u2019 settlement agreement as required by N.C.G.S. \u00a7 97-17 because: (1) the thirty-ninth day fell on a Sunday and defendant tendered payment the next day on Monday; and (2) when the last day of a period falls on a Saturday, Sunday, or legal holiday for purposes of computing time periods prescribed by the Workers\u2019 Compensation Act, the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday.\nAppeal by plaintiff from opinion and award filed 20 September 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 20 February 2001.\nPoisson, Poisson, Bower & Clodfelter, by Fred D. Poisson, Jr., for plaintiff-appellant.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Bruce A. Hamilton and Tracey L. Jones, for defendant-appellee." }, "file_name": "0339-01", "first_page_order": 369, "last_page_order": 373 }