{ "id": 8413687, "name": "ROBERT M. WARD, Employee, Plaintiff v. WAKE CO. BOARD OF EDUCATION, and CAROLINA SUNROCK CORPORATION, Employers, Defendant, NORTH CAROLINA SCHOOL BOARDS INSURANCE TRUST and ITT HARTFORD; Carrier, Defendants", "name_abbreviation": "Ward v. Wake Co. Board of Education", "decision_date": "2004-11-02", "docket_number": "No. COA03-1578", "first_page": "726", "last_page": "733", "citations": [ { "type": "official", "cite": "166 N.C. App. 726" } ], "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": "570 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511590, 1511242, 1511467, 1511346, 1511323 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0303-01", "/nc/356/0303-02", "/nc/356/0303-05", "/nc/356/0303-04", "/nc/356/0303-03" ] }, { "cite": "557 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "holding that Commission has the authority, analogous to court's authority under Rule 60(b), to review earlier order of deputy Commissioner, even in the absence of an appeal or motion for review" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 419", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379822 ], "year": 2001, "pin_cites": [ { "parenthetical": "holding that Commission has the authority, analogous to court's authority under Rule 60(b), to review earlier order of deputy Commissioner, even in the absence of an appeal or motion for review" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0419-01" ] }, { "cite": "334 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "238" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527675 ], "year": 1985, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0565-01" ] }, { "cite": "542 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "dismissing as interlocutory an appeal from order rescinding earlier dismissal" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440999 ], "year": 2001, "pin_cites": [ { "parenthetical": "dismissing as interlocutory an appeal from order rescinding earlier dismissal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0328-01" ] }, { "cite": "240 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "holding no substantial right implicated by appeal from order setting aside earlier order for summary judgment" } ], "opinion_index": 0 }, { "cite": "294 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572343 ], "year": 1978, "pin_cites": [ { "parenthetical": "holding no substantial right implicated by appeal from order setting aside earlier order for summary judgment" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0200-01" ] }, { "cite": "270 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "dismissing appeal from interlocutory order allowing motion to set aside default judgment" } ], "opinion_index": 0 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "pin_cites": [ { "parenthetical": "dismissing appeal from interlocutory order allowing motion to set aside default judgment" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0205-01" ] }, { "cite": "562 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "82", "parenthetical": "\"[T]he involuntary dismissal of Plaintiff's claim entered by the deputy commissioner . . . which does not mention whether it was entered with or without prejudice, must be construed as having been entered with prejudice.\"" }, { "page": "81" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 873", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9132910 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "875", "parenthetical": "\"[T]he involuntary dismissal of Plaintiff's claim entered by the deputy commissioner . . . which does not mention whether it was entered with or without prejudice, must be construed as having been entered with prejudice.\"" }, { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0873-01" ] }, { "cite": "390 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307010 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0476-01" ] }, { "cite": "337 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1985, "pin_cites": [ { "page": "482" }, { "page": "482" }, { "page": "483" }, { "page": "484" }, { "page": "477" }, { "page": "478" }, { "page": "483" } ], "opinion_index": 0 }, { "cite": "315 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716956 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "135-36" }, { "page": "136" }, { "page": "129" }, { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0127-01" ] }, { "cite": "502 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "61", "parenthetical": "citing Hogan v. Cone Mills Corp., 315 N.C. 127, 135-36, 337 S.E.2d 477, 482 (1985), rev'd on other grounds, 326 N.C. 476, 390 S.E.2d 136 (1990)" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465738 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "138", "parenthetical": "citing Hogan v. Cone Mills Corp., 315 N.C. 127, 135-36, 337 S.E.2d 477, 482 (1985), rev'd on other grounds, 326 N.C. 476, 390 S.E.2d 136 (1990)" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0135-01" ] }, { "cite": "428 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "333 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546781 ], "year": 1993, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0486-01" ] }, { "cite": "290 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "305 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572803 ], "year": 1982, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0603-01" ] }, { "cite": "533 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "505", "parenthetical": "citing Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982), and quoting Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993)" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496659 ], "year": 2000, "pin_cites": [ { "page": "317", "parenthetical": "citing Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982), and quoting Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0311-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "420 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "428", "parenthetical": "quoting Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990)" } ], "opinion_index": 0 }, { "cite": "332 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503935 ], "year": 1992, "pin_cites": [ { "page": "292", "parenthetical": "quoting Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0288-01" ] }, { "cite": "321 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "20" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 784", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524965 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0784-01" ] }, { "cite": "511 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "350 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132249 ], "year": 1999, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0071-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "578", "parenthetical": "quoting Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "year": 1999, "pin_cites": [ { "page": "161", "parenthetical": "quoting Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] } ], "analysis": { "cardinality": 741, "char_count": 16594, "ocr_confidence": 0.754, "pagerank": { "raw": 2.9245543104641884e-07, "percentile": 0.8468897221421017 }, "sha256": "d8cd6a2536ca75ef1fc16f1d2434ec6b0b87aae1924d0f97d9894501db01c001", "simhash": "1:2a51eda90c2be090", "word_count": 2678 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and THORNBURG concur." ], "parties": [ "ROBERT M. WARD, Employee, Plaintiff v. WAKE CO. BOARD OF EDUCATION, and CAROLINA SUNROCK CORPORATION, Employers, Defendant, NORTH CAROLINA SCHOOL BOARDS INSURANCE TRUST and ITT HARTFORD; Carrier, Defendants" ], "opinions": [ { "text": "LEVINSON, Judge.\nDefendants appeal from an order of the North Carolina Industrial Commission deeming an earlier dismissal of plaintiffs claims to be without prejudice.\nThe relevant factual and procedural history of this case is summarized as follows: Plaintiff suffered a compensable workplace injury on 25 August 1994. On 26 September 1995 deputy commissioner Shuping issued an opinion , awarding plaintiff workers\u2019 compensation benefits, which was substantially upheld in an opinion of the Full Commission, issued on 4 April 1996, in I.C. file no. 423957. Defendant Carolina Sunrock and plaintiff Robert Ward appealed to this Court, which affirmed the Industrial Commission in an unpublished opinion filed 1 July 1997.\nOn 8 August 1997, while plaintiff was employed by defendant Wake County Board of Education, he allegedly suffered another workplace injury. Defendants Wake Co. Bd. of Educ. and N.C. School Boards Insurance Trust denied plaintiff\u2019s claim, and the case was heard before deputy commissioner Glenn. On 25 March 1998 Glenn ruled from the bench that defendants Sunrock and ITT be added as \u201cpotential defendants] in this matter\u201d and that he would \u201chave to combine\u201d the files for both the earlier claim (file no. 466695, award upheld by this Court July 1997) with the claim then being heard (I.C. file no. 435240). He directed the parties to draft an order adding Sunrock and ITT as defendants. Although this order does not appear in the record, a second hearing was held before Glenn in July 1998, attended by both sets of defendants. The next order in the record is dated 16 October 2000, more than two years later. In this order Glenn directed the parties to submit a proposed opinion and award by 12 November 2000, after which date \u201cthe Opinion and Award will be written without [a submission of a proposed opinion and award].\u201d\nThe record contains only one order directing plaintiff to provide discovery. In this order, filed 12 January 2001, Glenn ordered plaintiff to provide defendants, no later than 1 February 2001, with copies of \u201cmedical records, rehabilitation report[s] and employment records in their possession since July 1, 1998.\u201d Thereafter, defendants apparently moved for dismissal of plaintiffs claims, although this motion does not appear in the record. Without conducting a hearing, Glenn issued an order on 21 May 2001 stating that:\nUpon motion of the counsel for both defendants for an Order dismissing plaintiff\u2019s claim for his failure to respond to discovery as ordered; and, not receiving any response from plaintiff as to defendants\u2019 motion to dismiss; it appears that defendants\u2019 motion should be allowed.\nIT IS THEREFORE ORDERED that this action shall be and is hereby dismissed as to both defendants.\nPlaintiff subsequently obtained different counsel. On 21 February 2002 he filed a new Form 33 request for a hearing, which was scheduled for 26 August 2002. On 10 September 2002 Glenn entered an order removing plaintiff\u2019s claims from the hearing docket and stating:\n... [Defendants moved that this matter be dismissed because the Industrial Commission did not have jurisdiction of this matter in that an Order had been entered ... on May 21 2001, dismissing this claim pursuant to defendants\u2019 motion; plaintiff did not appeal the dismissal nor did plaintiff ask that the Order be reconsidered, therefore the Order ... is still valid and outstanding; .... IT IS THEREFORE ORDERED that this case is hereby removed from the hearing docket in that it has been previously dismissed.\nOn 12 September 2002 plaintiff appealed the Commissioner\u2019s order. In another motion, plaintiff sought to have the dismissal of 21 May 2001 either vacated, interpreted as having been entered without prejudice, or \u201cremanded on an interlocutory basis for full hearing on the merits.\u201d On 11 July 2003, the Industrial Commission entered an order denying plaintiff\u2019s appeal from Glenn\u2019s order removing his new claim from the docket, but ordering that Glenn\u2019s earlier dismissal of plaintiff\u2019s claims \u201cis deemed to be WITHOUT PREJUDICE.\u201d From this order, defendants appeal.\nOn 22 August 2003 plaintiff filed a motion for dismissal of defendants\u2019 appeal, on the grounds that defendants have appealed from an interlocutory order not subject to immediate review.\n\u201cInterlocutory orders and judgments are those \u2018made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy.\u2019 Generally, there is no right of immediate appeal from interlocutory orders and judgments.\u201d Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (quoting Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)).\nDefendants herein appeal from an order deeming the earlier dismissal of plaintiffs claims to be without prejudice, and allowing plaintiff a year from the date of the order to refile. This Court has previously held similar orders to be interlocutory. In Johnson v. N.C. Dept. of Transportation, 70 N.C. App. 784, 321 S.E.2d 20 (1984), a deputy commissioner of the Industrial Commission dismissed the plaintiffs claim, which had been filed under the Tort Claims Act. The plaintiff appealed to the Full Commission, which \u201camended [the Deputy Commissioner\u2019s] order to provide that the claim be dismissed without prejudice so that the plaintiff could file a new action based on the same claim within one year of the Commission\u2019s order.\u201d Id. at 785, 321 S.E.2d at 20. On appeal, defendant argued that the Commission\u2019s order, deeming the earlier dismissal to be without prejudice, constituted a final judgment because \u201c[t]he case was not remanded to the deputy commissioner and any further proceedings must be brought with new pleadings and a new docket number.\u201d Id. On this basis, the defendants sought immediate review. This Court held:\nWe believe that to hold that any claim brought on the same facts as were alleged in this case is a different case would be to exalt form over substance. If the plaintiff brings another action based on the same facts as those on which this case is based it will be a continuation of this case. That being so, the order of the Industrial Commission is not a final judgment disposing of the case.\nId. Although the decision was made in the context of the Tort Claims Act, we find the reasoning of Johnson also applicable as to workers\u2019 compensation cases. Notwithstanding that as a technical matter plaintiff may have to file a new claim form, we conclude that defendants appeal is from an interlocutory order that does not resolve the issues between the parties.\nAlthough ordinarily a party may not appeal an interlocutory order, appeal is allowed where denial of immediate review would jeopardize a \u201csubstantial right\u201d of the appellant. N.C.G.S. \u00a7 7A-27 (d)(1) (2003) (allowing appeal of right to this Court from \u201cany interlocutory order or judgment\u201d that \u201c[a]ffects a substantial right[.]\u201d). \u201c \u2018Essentially a two-part test has developed \u2014 the right itself must be substantial and the deprivation of that substantial right must potentially work injury ... if not corrected before appeal from final judgment.\u2019 \u201d Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992) (quoting Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990)).\n\u201cOur Supreme Court has stated that the possibility of having to retry an issue already litigated can be a substantial right. Accordingly, \u2018the denial of a motion for summary judgment based on the defense of res judicata may affect a substantial right, making the order immediately appealable.\u2019 \u201d Naddeo v. Allstate Ins. Co., 139 N.C. App. 311, 317, 533 S.E.2d 501, 505 (2000) (citing Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982), and quoting Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993)). \u201cThe doctrine of res judicata precludes relitigation of final orders of the Full Commission and orders of a deputy commissioner which have not been appealed to the Full Commission.\u201d Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 138, 502 S.E.2d 58, 61 (1998) (citing Hogan v. Cone Mills Corp., 315 N.C. 127, 135-36, 337 S.E.2d 477, 482 (1985), rev\u2019d on other grounds, 326 N.C. 476, 390 S.E.2d 136 (1990)). Defendants herein argue that the Commission\u2019s order violated principles of res judicata, and is, therefore, immediately appealable. We disagree.\nCommissioner Glenn\u2019s order of dismissal did not specify whether it was with or without prejudice. Accordingly, it is held to be a dismissal with prejudice. Harvey v. Cedar Creek BP, 149 N.C. App. 873, 875, 562 S.E.2d 80, 82 (2002) (\u201c[T]he involuntary dismissal of Plaintiff\u2019s claim entered by the deputy commissioner . . . which does not mention whether it was entered with or without prejudice, must be construed as having been entered with prejudice.\u201d).\nAs a dismissal with prejudice, it constitutes a final judgment on the merits. See Hogan, 315 N.C. at 136, 337 S.E.2d at 482 (\u201c[An] order of dismissal granted at the instance of a party\u2019s opponent. . . was a final dismissal of [plaintiff\u2019s] claim on the merits.\u201d). In Hogan, as in the instant case, the plaintiff failed to appeal from a dismissal with prejudice. Several years later, he filed a new claim, and was awarded benefits. On appeal, this Court held that the dismissal of his first claim was res judicata with respect to the second claim. The North Carolina Supreme Court agreed that as long as the dismissal stood, a second claim was barred. However, the Court also held that the Industrial Commission possessed the \u201cinherent power to set aside one of its former judgments\u201d which authority is \u201canalogous to that conferred upon the courts by N.C.R. Civ. P. 60(b)(6).\u201d Id. at 137, 337 S.E.2d at 483. The Court explained that this authority:\nto provide relief against the operation of a former judgment... is a remedy fashioned by courts to relieve hardships which from time to time arise from a fast and hard adherence to the usual rule that judgments should not be disturbed once entered. The remedy has been characterized by a flexibility which enables it to be applied in new situations to avoid the particular injustices inherent in them.... [W]e believe the legislature impliedly vested such power in the Commission^]\nId. at 139-40, 337 S.E.2d at 484.\nSignificantly, the Hogan Court held further that, if the Industrial Commission chose to exercise its authority to set aside the earlier dismissal, res judicata would no longer bar plaintiff from bringing a new claim:\nThe decision whether to set aside the judgment rests, in the first instance, within the judgment of the Commission. If the Commission refuses to set aside the former judgment, Hogan\u2019s claim will be barred by res judicata. If, on the other hand, the Commission does set aside the former judgment, no final judgment on the merits will exist to bar this action[.]\nId. at 142, 337 S.E.2d at 477.\nThus, the \u201cFull Commission has the inherent power, \u2018analogous to that conferred on courts by Rule 60(b)(6),\u2019 to set aside or modify its own orders, including final orders of the deputy commissioners[.]\u201d Bryant, 130 N.C. App. at 138, 502 S.E.2d at 61 (citing Hogan, 315 N.C. at 129, 337 S.E.2d at 478).\nIn the instant case, the Commission exercised its inherent power to modify or set aside an order. The issue addressed by Commissioner Glenn was whether to grant defendants\u2019 motion for dismissal. The Full Commission did not \u201crelitigate\u201d the issue of the merits of defendants\u2019 motion for dismissal. Nor did the Commission conclude as a matter of law that the order had been entered without prejudice. Rather, the Commission modified the dismissal order by ordering that it be \u201cdeemed to have been entered without prejudice.\u201d The definition of the word \u201cdeemed\u201d in the legal context is \u201cconsidered\u201d or \u201ctreated as if.\u201d Black\u2019s Law Dictionary 415 (6th ed. 1990); Bryan A. Garner, A Dictionary of Modern Legal Usage 254 (2d ed. 1995). Thus, the Commission modified the dismissal by ordering that it be \u201ctreated as if\u201d it had been entered without prejudice. We conclude that the, Commission\u2019s order neither implicates defendants\u2019 right to avoid relitigation of a final order, nor presents other issues of res judicata.\nWe next consider whether the Commissioner\u2019s order is subject to immediate appellate review. \u201cWhile \u2018the Rules of Civil Procedure are not strictly applicable to proceedings under the Workers\u2019 Compensation Act,\u2019 they may provide guidance in the absence of an applicable rule under the Workers\u2019 Compensation Act.\u201d Harvey, 149 N.C. App. at 875, 562 S.E.2d at 81 (quoting Hogan, 315 N.C. at 137, 337 S.E.2d at 483). In this case, the Commission exercised its inherent authority to grant relief from judgment, which the North Carolina Supreme Court has held is \u201canalogous to\u201d a civil court\u2019s authority under N.C.G.S. \u00a7 1A-1, Rule 60(b) (2003). Accordingly, we find it relevant that there is no general right of immediate appeal from an interlocutory order entered pursuant to Rule 60(b). See Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980) (dismissing appeal from interlocutory order allowing motion to set aside default judgment). Nor is there a general right of immediate appeal from an order setting aside a prior dismissal. See, e.g., Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978) (holding no substantial right implicated by appeal from order setting aside earlier order for summary judgment); Yang v. Three Springs Inc., 142 N.C. App. 328, 542 S.E.2d 666 (2001) (dismissing as interlocutory an appeal from order rescinding earlier dismissal). We conclude that there is no general right to immediate review of the Commission\u2019s order setting aside or modifying an earlier order of a deputy Commissioner. We also conclude that no substantial right will be lost by delaying appeal until final resolution of plaintiff\u2019s claims. Defendants argue that, if their appeal is dismissed, they will \u201cbe required to incur significant litigation costs.\u201d However, \u201cthe mere avoidance of a rehearing on a motion or the avoidance of a trial when summary judgment is denied is not a \u2018substantial right.\u2019 \u201d LaFalce v. Wolcott, 76 N.C. App. 565, 568, 334 S.E.2d 236, 238 (1985). We conclude that dismissal of the present interlocutory appeal will not jeopardize a substantial right.\nDefendants Sunrock and ITT also argue that the Commission\u2019s authority to modify or set aside an earlier order of dismissal \u201cassumes a timely appeal.\u201d Defendants cite no authority for this statement, and Hogan indicates otherwise. Indeed, the plaintiff therein did not appeal the involuntary dismissal of his claims, and his subsequent claim was filed after a much longer time interval than in the instant case. Defendant Wake County Board of Education makes a similar argument that, absent an appeal from the dismissal, the Commission lacks authority to modify or set it aside. Again, Hogan indicates otherwise. See also Jenkins v. Piedmont Aviation Servs., 147 N.C. App. 419, 557 S.E.2d 104 (2001) (holding that Commission has the authority, analogous to court\u2019s authority under Rule 60(b), to review earlier order of deputy Commissioner, even in the absence of an appeal or motion for review), disc. review denied, 356 N.C. 303, 570 S.E.2d 724 (2002).\nWe conclude that plaintiffs motion for dismissal should be granted and defendants\u2019 appeal\nDismissed.\nJudges GEER and THORNBURG concur.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Law Offices of James Scott Farrin, by J. Michael Mackay, for plaintiff-appellee.", "Lewis & Roberts, P.L.L.C., by Bryant D. Parris, III, for defendant-appellant Sunrock/ITT.", "Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for defendant-appellant Wake County Board of Education." ], "corrections": "", "head_matter": "ROBERT M. WARD, Employee, Plaintiff v. WAKE CO. BOARD OF EDUCATION, and CAROLINA SUNROCK CORPORATION, Employers, Defendant, NORTH CAROLINA SCHOOL BOARDS INSURANCE TRUST and ITT HARTFORD; Carrier, Defendants\nNo. COA03-1578\n(Filed 2 November 2004)\nAppeal and Error; Workers\u2019 Compensation\u2014 appealability\u2014 modification of deputy commissioner\u2019s order\nAn Industrial Commission order deeming an earlier dismissal of plaintiff\u2019s workers\u2019 compensation claim to be without prejudice and allowing plaintiff one year to refile was interlocutory and not immediately appealable where the order did not resolve the issue between the parties and did not jeopardize a substantial right of defendants.\nAppeal by defendants from order entered 11 July 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 1 September 2004.\nLaw Offices of James Scott Farrin, by J. Michael Mackay, for plaintiff-appellee.\nLewis & Roberts, P.L.L.C., by Bryant D. Parris, III, for defendant-appellant Sunrock/ITT.\nAttorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for defendant-appellant Wake County Board of Education." }, "file_name": "0726-01", "first_page_order": 756, "last_page_order": 763 }