{ "id": 8915005, "name": "ROBERT L. CORNELL, Employee, Plaintiff v. WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, Employer, and GATES McDONALD, Carrier, Defendants", "name_abbreviation": "Cornell v. Western & Southern Life Insurance", "decision_date": "2004-01-06", "docket_number": "No. COA02-1636", "first_page": "106", "last_page": "112", "citations": [ { "type": "official", "cite": "162 N.C. App. 106" } ], "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": "501 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "655", "parenthetical": "\"A showing of carelessness or negligence or ignorance of the rules of procedure\" does not constitute excusable neglect" } ], "opinion_index": 0 }, { "cite": "348 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659850 ], "year": 1998, "pin_cites": [ { "page": "546", "parenthetical": "\"A showing of carelessness or negligence or ignorance of the rules of procedure\" does not constitute excusable neglect" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0537-01" ] }, { "cite": "543 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "Industrial Commission has no jurisdiction to review an opinion and award that is not timely appealed pursuant to G.S. \u00a7 97-85" } ], "opinion_index": 0 }, { "cite": "351 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155860, 1155894, 1155674, 1155806, 1155935 ], "year": 2000, "pin_cites": [ { "parenthetical": "Industrial Commission has no jurisdiction to review an opinion and award that is not timely appealed pursuant to G.S. \u00a7 97-85" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0358-02", "/nc/351/0358-01", "/nc/351/0358-04", "/nc/351/0358-05", "/nc/351/0358-03" ] }, { "cite": "520 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "548 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "564", "parenthetical": "notice of appeal to North Carolina Property Tax Commission may be perfected by fax" } ], "opinion_index": 0 }, { "cite": "144 N.C. 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App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240724 ], "weight": 2, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0332-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 581, "char_count": 15009, "ocr_confidence": 0.768, "pagerank": { "raw": 2.3701367566161732e-07, "percentile": 0.7952504180745673 }, "sha256": "b581a5609d30ec72cf44342e9de369329e3f6e786ad186411dfd5697b15401d3", "simhash": "1:a413cbad581b6c15", "word_count": 2406 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and LEVINSON concur." ], "parties": [ "ROBERT L. CORNELL, Employee, Plaintiff v. WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, Employer, and GATES McDONALD, Carrier, Defendants" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendants appeal from an order of the North Carolina Industrial Commission dismissing their appeal from an opinion and award of a deputy commissioner awarding plaintiff-employee compensation. The procedural history leading to this appeal is summarized as follows: Plaintiff-employee claimed an injury to his back sustained in the course and scope of his employment with employer-defendant. Defendants denied the claim. The matter was heard by a deputy commissioner, who entered an opinion and award concluding that plaintiff had suffered \u201can injury by accident arising out of and in the course of his employment in the nature of a specific traumatic incident to his back\u201d and awarding benefits for disability and medical expenses.\nDefendants gave notice of appeal to the Full Commission. Before the case was calendared for hearing by the Full Commission, plaintiff-employee moved to dismiss the appeal on grounds that defendants had not given notice of appeal within the time allowed by G.S. \u00a7 97-85. The Commission\u2019s chairman entered the following order:\nThe undersigned having reviewed plaintiffs motion and defendant\u2019s response and having found that defendant received notice of Deputy Commissioner Ford\u2019s Opinion and Award on December 3, 2001, and that the Industrial Commission received defendants\u2019 notice of appeal of said Opinion and Award on December 17, 2001;\nIt is therefore ORDERED that plaintiff\u2019s motion to dismiss defendants\u2019 appeal to the Full Commission for failure to file a notice of appeal within fifteen (15) days of receipt of the notice of the Opinion and Award of the deputy commissioner as required by N.C. Gen. Stat. \u00a7 97-85 and Moore v. City of Raleigh, 135 N.C. App. 332, 520 S.E.2d (sic) (1999) is hereby DENIED.\nPlaintiff-employee filed a motion for reconsideration, directed to the chairman, which was also denied.\nUpon hearing defendants\u2019 appeal, the Commission made findings of fact and based on those findings concluded that defendants\u2019 notice of appeal had not been timely and, therefore, it had no jurisdiction to consider the appeal. The Commission ordered defendants\u2019 appeal dismissed. Defendants have appealed the order of dismissal to this Court.\nFirst we must consider the very narrow issue presented by defendants\u2019 second assignment of error: whether the panel of the Commission to which defendants\u2019 appeal was assigned had authority to dismiss the appeal. Citing the rule well-established by North Carolina case law that \u201cone superior court judge cannot rectify what may seem to be legal errors by another in the same case,\u201d State v. Eason, 336 N.C. 730, 740, 445 S.E.2d 917, 923 (1994), cert. denied, 513 U.S. 1096 (1995), defendants argue that the panel of the Commission to which the case was assigned had no \u00e1uthority, after the chairman had denied plaintiff\u2019s motion to dismiss, to thereafter dismiss the appeal for lack of jurisdiction due to the untimely notice. We disagree.\nUnlike the superior court, the North Carolina Industrial Commission is not a court of general jurisdiction; the Commission is a quasi-judicial administrative board created by the legislature to administer the Workers\u2019 Compensation Act and has no authority beyond that provided by statute. Hogan v. Cone Mills Corp., 315 N.C. 127, 137-38, 337 S.E.2d 477, 483 (1985). N.C. Gen. Stat. \u00a7 97-77 (2003) provides that the Commission shall consist of seven members, one of whom is designated by the governor as chairman. \u201cThe chairman shall be the chief judicial officer and the chief executive officer of the Industrial Commission . . . .\u201d N.C. Gen. Stat. \u00a7 97-77(b) (2003). Although composed of seven members, the Full Commission acts through three member panels when reviewing awards by hearing commissioners or deputy commissioners. N.C. Gen. Stat. \u00a7 97-85 (2003). The Commission has no authority to act en banc. Sims v. Charmes/Arby\u2019s Roast Beef, 142 N.C. App. 154, 158, 542 S.E.2d 277, 281, disc. review denied, 353 N.C. 729, 550 S.E.2d 782 (2001).\nThe Commission is also authorized by N.C. Gen. Stat. \u00a7 97-80(a) (2003) to promulgate its own rules to carry out the provisions of the Workers\u2019 Compensation Act, and it has exercised such authority by adopting the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission. See Annotated Rules of North Carolina (2004). Rule 609 (l)(c) of the Workers\u2019 Compensation Rules provides:\nMotions filed after notice of appeal to the Full Commission has been given but prior to the calendaring of the case shall be directed to the Chair of the Industrial Commission.\nWorkers\u2019 Comp. R. Of N.C. Indus. Comm\u2019n 609(l)(c), 2004 Ann. R. (N.C.) 901, 919. In this case, plaintiff\u2019s motion to dismiss defendants\u2019 appeal from the opinion and award of the deputy commissioner was directed to the Commission\u2019s chairman, as required by the rule, who denied the motion. Plaintiff\u2019s motion for reconsideration was likewise directed to the Commission\u2019s chairman and was denied.\nWorkers\u2019 Compensation Rule 703(1) provides, however, that \u201cOrders, Decisions, and Awards made in a summary manner, without detailed findings of fact. . . may ... be raised and determined at a subsequent hearing.\u201d Workers\u2019 Comp. R. Of N.C. Indus. Comm\u2019n 703(1), 2004 Ann. R. (N.C.) 901, 925. The order by Chairman Lattimore denying plaintiff\u2019s motion to dismiss for lack of jurisdiction was just such a summary order. Therefore, we hold that the Full Commission panel had the authority, under the Commission\u2019s own rules, to reconsider the issue of jurisdiction raised by plaintiff\u2019s motion and, upon proper findings of fact and conclusions of law, to enter an order with respect to such issue. Defendant\u2019s assignment of error to the contrary is overruled.\nDefendants also contend, by their first assignment of error, that even if the Commission had authority to reconsider the issue, the Commission erred in dismissing the appeal because their application for review was timely. N.C. Gen. Stat. \u00a7 97-85 (2003) requires that an application for review of an opinion and award of a hearing commissioner or deputy commissioner must be made \u201cwithin 15 days from the date when the notice of award shall have been given. ...\u201d This Court has held that the 15 day period commences on the date the appealing party receives notice of the award, and that an application for review is deemed made when it is mailed to the Commission by the appealing party. Hubbard v. Burlington Industries, 76 N.C. App. 313, 315-16, 332 S.E.2d 746, 747 (1985).\nIn dismissing defendants\u2019 appeal, the Commission found as facts, inter alia:\n1. Deputy Commissioner Ford filed his Opinion and Award in this claim on November 29, 2001, at which time it was served on counsel of record for the parties;\n2. Defendants filed their notice of appeal from Deputy Commissioner Ford\u2019s Opinion and Award on December 27, 2001, in a letter from Clayton M. Custer from the firm of Womble, Carlyle, Sandridge & Rice dated December 17, 2002. The Docket Director for the Industrial Commission acknowledged receipt of defendant\u2019s notice of appeal in a letter dated December 29, 2001.\n4. The attorney of record for this case was Laura M. Wolfe with the Office of Womble, Carlyle, Sandridge & Rice. Ms. Wolfe left the office of Womble, Carlyle, Sandridge & Rice on May 1, 2001; however this file remained with Womble, Carlyle, Sandridge & Rice. On July 25, 2001, Clayton M. Custer of the office of Womble, Carlyle, Sandridge & Rice relocated from their Winston-Salem office to their Greenville, South Carolina office .... The Opinion and Award of Deputy Commissioner Ford was faxed to the Winston-Salem office of Womble, Carlyle, Sandridge & Rice to the attention of Laura M. Wolfe. The mailroom of the Winston-Salem office of Womble, Carlyle, Sandridge & Rice on November 29, 2001, attempted to forward the Opinion and Award to Ms. Wolfe at her new office location. Clayton M. Custer of the office of Womble, Carlyle, Sandridge & Rice did not receive the Opinion and Award until December 3, 2001.\n6. The Full Commission finds that defendants\u2019 counsel, Womble, Carlyle, Sandridge & Rice, received Deputy Commissioner Ford\u2019s Opinion and Award on November 29, 2001, by fax, and that defendants\u2019 counsel did not file the notice of appeal until it was mailed on December 17, 2001. The Full Commission notes that there is no record of a change of the lead attorney from Ms. Wolfe to Mr. Custer and that there was no notice of a change of address for the handling office from Winston-Salem to Greenville, South Carolina. Defendants\u2019 counsel had sufficient time, upon receipt of the Opinion and Award, to file a timely notice of appeal. Counsel\u2019s failure to do so was a result of a misapprehension of law.\nBased on those findings, the Commission concluded that defendants\u2019 notice of appeal was not timely, and thus, it had no jurisdiction to consider defendants\u2019 appeal.\nDefendant has not assigned error to any of the foregoing findings of fact. Generally, defendants\u2019 failure to assign error to the findings renders them conclusive on appeal. McLean v. Roadway Express, Inc., 307 N.C. 99, 102-03, 296 S.E.2d 456, 458 (1982). However, this rule is excepted for questions of jurisdiction. Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 705, 304 S.E.2d 215, 218 (1983). \u201cFindings of jurisdictional fact by the Industrial Commission . . . are not conclusive upon appeal even though supported by evidence in the record.\u201d Id. When jurisdiction is challenged, the reviewing court \u201chas the duty to make its own independent findings of jurisdictional facts from its consideration of the entire record.\u201d Id.; Terrell v. Terminex Servs., 142 N.C. App. 305, 307, 542 S.E.2d 332, 334 (2001).\nUpon our consideration of the entire record, we hold that defendants received notice of Deputy Ford\u2019s opinion and award, by fax, on 29 November 2001, see In re Appeal of Intermedia Communications, Inc., 144 N.C. App 424, 426-27, 548 S.E.2d 562, 564 (2001) (notice of appeal to North Carolina Property Tax Commission may be perfected by fax), and that defendants\u2019 application for review was made upon its mailing on 17 December 2001. Notice of Deputy Commissioner Ford\u2019s opinion and award was served upon defendants\u2019 counsel, Womble, Carlyle, Sandridge & Rice, P.L.L.C., at the address shown on defendants\u2019 previous filings with the Commission. Workers\u2019 Compensation Rule 614 provides that after counsel files a notice of appearance with the Commission, all notices thereafter required to be served on a party are to be served on counsel for the party. Workers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 614(1), 2004 Ann R. (N.C.) 901, 923. Deputy Commissioner Ford complied with this rule and service was accomplished when the notice was received by Womble, Carlyle, Sandridge, & Rice, P.L.L.C., not when the law firm routed it to the individual attorney within the firm to whom the case had been assigned. We therefore conclude, as did the Commission, that timely notice or appeal (application for review) was not given within 15 days pursuant to G.S. \u00a7 97-85 and thus, the Commission had no jurisdiction to review the deputy commissioner\u2019s opinion and award. See Moore v. City of Raleigh, 135 N.C. App. 332, 334, 520 S.E.2d 133, 136 (1999), disc. review denied, 351 N.C. 358, 543 S.E.2d 131 (2000) (Industrial Commission has no jurisdiction to review an opinion and award that is not timely appealed pursuant to G.S. \u00a7 97-85).\nDefendants also argue their failure to make a timely application for review was due to \u201cexcusable neglect\u201d and that the Commission erred in failing to so rule. The Commission concluded:\n2. Although the Commission has the power to remedy an error based on excusable neglect of counsel, Hogan v. Cone Mills, 315 N.C. 127, 337 S.E.2d 477 (1985), defendants\u2019 counsel\u2019s misapprehension of law in this case does not constitute excusable neglect. Defendants\u2019 failure to file a timely notice of appeal, therefore, should not be excused under the doctrine of excusable neglect.\nDefendants\u2019 first assignment of error, by which they contend the Commission erred in dismissing the appeal because their application for review was timely, is not sufficient to raise the issue of whether their failure to file a timely application for review was due to excusable neglect. Therefore, their argument based on excusable neglect is not properly before us. N.C. R. App. P. 10(a). Assuming, arguendo, that the issue had been properly preserved by an assignment of error, an attorney\u2019s misapprehension of law, as found by the Commission in this case, is not grounds for relief due to excusable neglect. See Briley v. Farabow, 348 N.C. 537, 546, 501 S.E.2d 649, 655 (1998) (\u201cA showing of carelessness or negligence or ignorance of the rules of procedure\u201d does not constitute excusable neglect).\nThe Order dismissing defendants\u2019 appeal to the Full Commission from the 29 November 2001 Opinion and Award of the deputy commissioner is affirmed.\nAffirmed.\nJudges STEELMAN and LEVINSON concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Kathleen Shannon Glancy, P.A., by Terrie Haydu, for plaintiff - appellee.", "Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Clayton M. Custer, for defendants-appellants." ], "corrections": "", "head_matter": "ROBERT L. CORNELL, Employee, Plaintiff v. WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, Employer, and GATES McDONALD, Carrier, Defendants\nNo. COA02-1636\n(Filed 6 January 2004)\n1. Workers\u2019 Compensation\u2014 dismissal of appeal \u2014 reconsideration of same issue \u2014 untimely notice \u2014 lack of jurisdiction\nThe Industrial Commission did not err by dismissing defendants\u2019 appeal from an opinion and award of a deputy commissioner based on lack of jurisdiction due to untimely notice of appeal even though the chairman had previously denied plaintiffs motion to dismiss on the same ground in a summary order, because the full Commission panel had the authority under the Commission\u2019s own rules to reconsider the issue of jurisdiction raised by plaintiff\u2019s motion and, upon proper findings of fact and conclusions of law, to enter an order with respect to such issue.\n2. Workers\u2019 Compensation\u2014 failure to make timely application for review \u2014 excusable neglect\nThe Industrial Commission did not err by dismissing defendants\u2019 appeal from an opinion and award of a deputy commissioner based on untimely notice even though defendants contend their application for review was timely, because: (1) timely notice of appeal was not given within 15 days as required by N.C.G.S. \u00a7 97-85 when the deputy commissioner faxed the opinion and award on 29 November 2001 and defendants\u2019 application for review was made upon its mailing on 17 December 2001; (2) service was accomplished when the notice was received by defendants\u2019 law firm and not when the law firm routed it to the individual attorney within the firm to whom the case had been assigned; and (3) an attorney\u2019s misapprehension of law is not grounds for relief due to excusable neglect.\nAppeal by defendants from order entered 9 July 2002 by the Full Commission of the North Carolina Industrial Commission. Heard in the Court of Appeals 15 October 2003.\nKathleen Shannon Glancy, P.A., by Terrie Haydu, for plaintiff - appellee.\nWomble, Carlyle, Sandridge & Rice, P.L.L.C., by Clayton M. Custer, for defendants-appellants." }, "file_name": "0106-01", "first_page_order": 134, "last_page_order": 140 }