{ "id": 9132910, "name": "BRENDA HARVEY, Employee, Plaintiff v. CEDAR CREEK BP, Employer, and CASUALTY RECIPROCAL EXCHANGE, Carrier, Defendants", "name_abbreviation": "Harvey v. Cedar Creek BP", "decision_date": "2002-04-16", "docket_number": "No. COA01-25", "first_page": "873", "last_page": "876", "citations": [ { "type": "official", "cite": "149 N.C. App. 873" } ], "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": "538 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 834", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132160, 132259, 131971, 131939, 132218 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0834-05", "/nc/350/0834-02", "/nc/350/0834-03", "/nc/350/0834-01", "/nc/350/0834-04" ] }, { "cite": "510 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 11", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11236822 ], "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0011-01" ] }, { "cite": "270 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "264 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "905" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549659 ], "year": 1980, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0173-01" ] }, { "cite": "337 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "483" }, { "page": "483" }, { "page": "483" } ], "opinion_index": 0 }, { "cite": "315 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716956 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "138" }, { "page": "137" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0127-01" ] } ], "analysis": { "cardinality": 358, "char_count": 7363, "ocr_confidence": 0.735, "pagerank": { "raw": 1.0639499679456567e-07, "percentile": 0.5578483533209851 }, "sha256": "aa83a5fbd50bf7f8110c58853628b438afce3855fb9048d5609abd8bfc1f2e57", "simhash": "1:cab5ece74f0bc401", "word_count": 1141 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and CAMPBELL concur." ], "parties": [ "BRENDA HARVEY, Employee, Plaintiff v. CEDAR CREEK BP, Employer, and CASUALTY RECIPROCAL EXCHANGE, Carrier, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nCedar Creek BP and Casualty Reciprocal Exchange (collectively, Defendants) appeal an order filed 17 August 2000 by the Full Commission of the North Carolina Industrial Commission (the Commission) vacating: (a) an order by the deputy commissioner dismissing a workers\u2019 compensation claim by Brenda Harvey (Plaintiff) and (b) a subsequent order by the executive secretary allowing Defendants\u2019 motion to strike Plaintiff\u2019s request for a hearing.\nOn 19 May 1995, Plaintiff, an employee of Cedar Creek BP, filed a workers\u2019 compensation claim, alleging she had injured her foot when she fell at work. Plaintiff submitted a Form 33 dated 13 October 1998 requesting her claim be assigned for hearing before a deputy commissioner. A hearing was scheduled for 15 November 1999; however, neither Plaintiff nor her attorney appeared before the deputy commissioner on that date. When Defendants moved for a dismissal of Plaintiff\u2019s workers\u2019 compensation claim with prejudice, the deputy commissioner entered an order filed 22 November 1999 dismissing Plaintiff\u2019s claim without stating whether he was doing so with or without prejudice.\nIn a second Form 33 dated 19 January 2000, Plaintiff again requested her claim be assigned for a hearing. Defendants responded by filing a motion dated 3 March 2000 requesting Plaintiff\u2019s Form 33 be stricken. In an order filed 27 March 2000, the executive secretary granted Defendants\u2019 motion, noting the deputy commissioner had dismissed Plaintiff\u2019s claim with prejudice. On 3 April 2000, Plaintiff appealed this order to the Commission. In an order filed 17 August 2000, the Commission vacated both the deputy commissioner\u2019s dismissal of Plaintiff\u2019s claim and the executive secretary\u2019s order striking Plaintiff\u2019s request for a hearing on the grounds that: (1) no statutory authority for the dismissal of Plaintiff\u2019s claim existed at the time of the hearing on 15 November 1999; and (2) in the alternative, \u201cthe dismissal of [P]laintiff\u2019s claim terminated [her] exclusive remedy when other lesser sanctions were appropriate and available\u201d and therefore constituted an abuse of discretion.\nThe dispositive issue is whether the deputy commissioner\u2019s dismissal of Plaintiff\u2019s claim was with or without prejudice.\nWe first note that even prior to the enactment of Workers\u2019 Compensation Rule GlSQXc), the Industrial Commission, which includes the deputy commissioner, had the inherent authority to dismiss a claim with or without prejudice for failure to prosecute. \u201c[T]he Industrial Commission possesses such judicial power as is necessary to administer the Workers\u2019 Compensation Act.\u201d Hogan v. Cone Mills Corp., 315 N.C. 127, 138, 337 S.E.2d 477, 483 (1985); N.C.G.S. \u00a7 97-83 (1999). One of the powers inherent in the courts and thus also in the Industrial Commission is the \u201cpower of the court to dismiss a case for want of prosecution.\u201d Swygert v. Swygert, 46 N.C. App. 173, 178, 264 S.E.2d 902, 905, appeal dismissed, 270 S.E.2d 116 (1980). Accordingly, the Commission, in falsely believing the Industrial Commission lacked such authority, erred in setting aside on this basis the orders by the deputy commissioner and the executive secretary.\nWith respect to an involuntary dismissal, N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b) states: \u201cUnless the court in its order for dismissal otherwise specifies, a dismissal under this section and any dismissal not provided for in this rule, . . . operates as an adjudication upon the merits.\u201d N.C.G.S. \u00a7 1A-1, Rule 41(b) (1999). In other words, an involuntary dismissal which fails to state that it is without prejudice will be construed as being with prejudice. While \u201c[t]he Rules of Civil Procedure are not strictly applicable to proceedings under the Workers\u2019 Compensation Act,\u201d they may provide guidance in the absence of an applicable rule under the Workers\u2019 Compensation Act. See Hogan, 315 N.C. at 137, 337 S.E.2d at 483 (determining the Industrial Commission has the inherent power, analogous to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6), to grant relief from judgment). The Workers\u2019 Compensation Act provides no direction for the proper interpretation of an involuntary dismissal that is silent on whether the dismissal is with or without prejudice. Thus, this Court may look to N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b) for guidance.\nAccordingly, the involuntary dismissal of Plaintiff\u2019s claim entered by the deputy commissioner upon Plaintiff\u2019s failure to prosecute, which does not mention whether it was entered with or without prejudice, must be construed as having been entered with prejudice. Because the dismissal with prejudice \u201cterminated [P]laintiff\u2019s exclusive remedy when other lesser sanctions were appropriate and available,\u201d we agree with the Commission\u2019s alternative conclusion that the deputy commissioner\u2019s order dismissing Plaintiff\u2019s claim and the executive secretary\u2019s order allowing Defendants\u2019 motion to strike Plaintiff\u2019s request for a hearing should be vacated based on an abuse of discretion by the deputy commissioner and Plaintiff\u2019s claim should be reset for hearing. See Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 17, 510 S.E.2d 388, 393 (in reviewing a dismissal for abuse of discretion, the exclusivity of the plaintiff\u2019s remedy and the appropriateness of alternative sanctions must be considered), disc. review denied, 350 N.C. 834, 538 S.E.2d 197 (1999). Accordingly, we affirm the Commission.\nAffirmed.\nJudges McCULLOUGH and CAMPBELL concur.\n. Rule 613(l)(c) was enacted in June 2000 and provides: \u201cUpon proper notice and an opportunity to be heard, any claim may be dismissed with or without prejudice by the Industrial Commission on its own motion or by motion of any party for failure to prosecute or to comply with these Rules or any Order of the Commission.\u201d Workers\u2019 Comp. R. N.C. Indus. Comm\u2019n 613(1)(c), 2002 Ann. R. N.C. 770.\n. The Commission has the inherent power, analogous to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6), to strike an order based on an abuse of discretion. See Hogan, 315 N.C. at 137, 337 S.E.2d at 483.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Maxwell & Melvin, by Stephen R. Melvin, for plaintiff-appellee.", "Young Moore and Henderson, RA., by Joe E. Austin, Jr., and Tina Lloyd Hlabse, for defendant-appellants." ], "corrections": "", "head_matter": "BRENDA HARVEY, Employee, Plaintiff v. CEDAR CREEK BP, Employer, and CASUALTY RECIPROCAL EXCHANGE, Carrier, Defendants\nNo. COA01-25\n(Filed 16 April 2002)\nWorkers\u2019 Compensation\u2014 involuntary dismissal for failure to prosecute \u2014 dismissal with prejudice \u2014 abuse of discretion\nThe full Industrial Commission did not err by vacating an order by the deputy commissioner dismissing plaintiffs workers\u2019 compensation claim and a subsequent order by the executive secretary allowing defendants\u2019 motion to strike plaintiff\u2019s request for a hearing based on an abuse of discretion by the deputy commissioner, because: (1) the involuntary dismissal of plaintiff\u2019s claim entered by the deputy commissioner upon plaintiff\u2019s failure to prosecute, which does not mention whether it was entered with or without prejudice, must be construed as having been entered with prejudice; and (2) the dismissal with prejudice terminated plaintiff\u2019s exclusive remedy when other lesser sanctions were appropriate and available.\nAppeal by defendants from order filed 17 August 2000 by the North Carolina Industrial Commission. Heard in the Court of Appeals 4 December 2001.\nMaxwell & Melvin, by Stephen R. Melvin, for plaintiff-appellee.\nYoung Moore and Henderson, RA., by Joe E. Austin, Jr., and Tina Lloyd Hlabse, for defendant-appellants." }, "file_name": "0873-01", "first_page_order": 907, "last_page_order": 910 }