{
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  "name": "JAMES GOODSON, Employee-Plaintiff and N.C. DEPARTMENT OF INSURANCE, ex rel. JAMES LONG, Commissioner, Intervenor v. P. H. GLATFELTER CO., Employer-Defendant; LANGDON M. COOPER, Trustee in Bankruptcy for RFS ECUSTA, INC., Defendant and NORTH CAROLINA SELF-INSURANCE GUARANTY ASSOCIATION, Defendant",
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      "JAMES GOODSON, Employee-Plaintiff and N.C. DEPARTMENT OF INSURANCE, ex rel. JAMES LONG, Commissioner, Intervenor v. P. H. GLATFELTER CO., Employer-Defendant; LANGDON M. COOPER, Trustee in Bankruptcy for RFS ECUSTA, INC., Defendant and NORTH CAROLINA SELF-INSURANCE GUARANTY ASSOCIATION, Defendant"
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        "text": "CALABRIA, Judge.\nP. H. Glatfelter Co. (\u201cGlatfelter\u201d) appeals an opinion and award entered by the North Carolina Industrial Commission (\u201cCommission\u201d), in which the Commission found James Goodson (\u201cplaintiff\u2019) was entitled to have Glatfelter pay his workers\u2019 compensation claim and ordered Glatfelter to (1) pay compensation to plaintiff pending appeal and (2) secure its obligations under the Workers\u2019 Compensation Act by either re-qualifying as a self-insurer or posting an appropriate special release bond. We affirm in part and reverse in part.\nFrom 24 June 1987 until 9 August 2001, Glatfelter operated a paper mill, known as the Ecusta Division, where plaintiff was employed. On 17 January 1992, the North Carolina Department of Insurance (\u201cDOI\u201d) licensed Glatfelter to self-insure its workers\u2019 compensation liabilities, and Glatfelter posted a commercial surety bond issued by Travelers Casualty and Surety Company of America to satisfy certain statutory bond requirements. The bond was originally for $500,000.00 but was increased to $1.6 million as liabilities grew. Glatfelter remained self-insured until 24 August 2001 and was a member of the North Carolina Self-Insurance Guaranty Association (\u201cSIGA\u201d), a statutorily created legal entity created to pay \u201ccovered claims\u201d against insolvent member self-insurers. During this period of time, plaintiff sustained a compensable injury by accident and began receiving temporary total disability compensation.\nIn 2001, Donald Bowman (\u201cBowman\u201d), Corporate Insurance and Credit Manager for Glatfelter, became aware of efforts by Glatfelter to sell the Ecusta Division, including its liabilities. On 18 June 2001, Bowman wrote Ronald Ennis (\u201cEnnis\u201d), senior financial analyst responsible for supervising the self-insured workers\u2019 compensation unit with DOI. In the letter, Bowman explained that Glatfelter was \u201cin the process of selling its Ecusta Division along with the Workers Compensation liabilitiesf,] ... no longer wantfed] or needfed] to be Self-Insured[,] . . . and [desired] to cancel the [existing] Surety Bond[.]\u201d Bowman requested information on \u201cexactly what... is needed from [Glatfelter in order] to withdraw from being Self-Insured.\u201d\nThree days later, Ennis responded to Bowman\u2019s letter \u201cnotifying [DOI] of [Glatfelter\u2019s] voluntary termination of self-insured status . . . effective 24 August 2001.\u201d Ennis\u2019 letter noted that the Ecusta Division was \u201cbeing acquired by a third party that is assuming all past workers\u2019 compensation liabilities accrued during the Company\u2019s operation of the division.\u201d Ennis informed Bowman that the surety bond could be cancelled \u201cby giving the Commissioner 60 days written notice\u201d but warned that the surety would \u201cremain liable for all obligations and liabilities ... that arose under Chapter 97 of the North Carolina General Statutes.\u201d Nonetheless, Ennis went on to state that if \u201cthe acquiring company provides a replacement bond, then the Department will release the Surety Company of any past, present or future liabilities.\u201d\nIn August 2001, Glatfelter entered into a written acquisition agreement with, inter alia, RFS Ecusta, Inc. (\u201cRFS\u201d) for the sale of the Ecusta Division. The acquisition agreement purportedly transferred certain liabilities, including workers\u2019 compensation claims, of the Ecusta Division. RFS deposited a $1.6 million certificate of deposit with DOI, and, on 24 August 2001, Ennis wrote Bowman and informed him that DOI had received confirmation that RFS deposited $1.6 million \u201cto secure the assumption of liabilities of [Glatfelter\u2019s] worker\u2019s compensation reserve loss claims\u201d thus purportedly \u201cdischarging] ... all past, present, existing and potential liability for [Glatfelter\u2019s surety company].\u201d Ennis also noted that Glatfelter had voluntarily terminated their status as a self-insured employer in North Carolina. DOI released Glatfelter\u2019s bond. In a subsequent memorandum regarding self-insured corporations, Ennis noted Glatfelter sold the Ecusta Division to RFS, who assumed all liabilities and posted a $1.6 million certificate of deposit as a \u201cdollar for dollar exchange with [Glatfelter\u2019s] surety bond [and Glatfelter\u2019s] surety bond company was granted a full release from liability.\u201d A second memorandum by Ennis the following month added that DOI \u201cnotified the Industrial Commission of the transfer of the loss claims to [RFS] to ensure the appropriate legal responsibility for their discharge.\u201d\nAs noted previously, RFS assumed control of the operations of the Ecusta Division. Besides the certificate of deposit with DOI, RFS was insured at all times from 8 August 2002 to 23 September 2003 for claims arising during that period but not for prior pending claims. DOI did not require RFS to become self-insured when it posted the bond. In October 2002, RFS filed petitions in bankruptcy. RFS made no payments for plaintiff\u2019s admittedly compensable claim after 30 September 2002 yet failed to follow statutory procedures to terminate compensation.\nGlatfelter and SIGA denied liability for payments on plaintiff\u2019s claim. North Carolina Chief Deputy Commissioner Stephen Gheen initiated a proceeding ex mero motu concerning continued payments of workers\u2019 compensation benefits from RFS and/or Glatfelter, and in an order entered 3 December 2002, the deputy commissioner added Glatfelter, SIGA, and DOI as parties. After a hearing on the matter and completion of the record, Deputy Commissioner George R. Hall, III, entered an opinion and award providing, in relevant part, as follows: (1) there were no additional necessary parties; (2) the acquisition agreement did not effectuate a valid transfer of Glatfelter\u2019s workers\u2019 compensation liabilities to RFS by virtue of N.C. Gen. Stat. \u00a7 97-6 (2003) and the lack of a statutory scheme permitting a self-insured employer to transfer liabilities for workers\u2019 compensation claims by private contractual agreement; (3) Glatfelter, as plaintiff\u2019s self-insured employer at the time of the injury, was responsible for paying the compensable claim; (4) DOI erroneously released Glatfelter\u2019s bond because no \u201cspecial release bond\u201d as required by N.C. Gen. Stat. \u00a7 97-185(g) (2003) had been posted and Glatfelter had not fully discharged its obligations under the Workers\u2019 Compensation Act; (5) the certificate of deposit posted by RFS did not qualify as a \u201cspecial release bond\u201d because RFS was not a corporate surety as defined by N.C. Gen. Stat. \u00a7 97-165(5) (2003); and (6) SIGA\u2019s liability was not at issue since RFS\u2019 certificate of deposit was not implicated.\nThe Commission affirmed the opinion and award on appeal but modified certain provisions, in relevant part, as follows: (1) the agreements between Glatfelter and RFS, to the extent they purported to transfer workers\u2019 compensation liabilities, were void ab initio as a matter of law and public policy; (2) Glatfelter negotiated its workers\u2019 compensation liabilities into the sales price of the Ecusta Division, and the purpose of the certificate of deposit posted by RFS was \u201cto secure . . . the self-insurer\u2019s claims liability to insure that injured workers\u2019 injuries on the job will be properly compensated, irrespective of the employer\u2019s financial condition\u201d; and (3) Glatfelter erroneously relied on the posting of the certificate of deposit by RFS to bring Glatfelter into compliance with the \u201cspecial release bond\u201d provisions. In its award, the Commission ordered the use of the certificate of deposit posted by RFS based on the purpose stated in the award and opinion. The Commission further ordered Glatfelter to secure its obligations under the Act by either re-qualifying as a self-insurer or posting an appropriate special release bond as well as to make appropriate workers\u2019 compensation payments to plaintiff. Finally, the Commission ordered Glatfelter to pay compensation to plaintiff pending appeal pursuant to N.C. Gen. Stat. \u00a7 97-86.1 (2003) and dismissed SIGA as a party in the action. Both Glatfelter and RFS gave notice of appeal to this Court.\nI. Standard of Review\nOur Supreme Court has recently re-iterated that the Workers\u2019 Compensation Act is designed \u201c \u2018to provide compensation for injured employees\u2019 therefore, its provisions should be \u201c \u2018liberally construed\u2019 \u201d and \u201c \u2018its benefits should not be denied by a technical, narrow, and strict construction.\u2019 \u201d McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004) (quoting Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968)). In reviewing an opinion and award by the Commission, we must determine \u201cwhether any competent evidence supports the Commission\u2019s findings of fact and whether [those] findings . . . support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). We view the evidence in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Findings of fact are conclusive on appeal when supported by competent evidence, despite evidence that would support contrary findings, and conclusions of law are reviewed de novo. McRae, 358 N.C. at 496, 597 S.E.2d at 700-01 (citations omitted). As to the Commission\u2019s findings of jurisdictional fact, such findings \u201care not conclusive on appeal, even if supported by competent evi-dencef,]\u201d and the reviewing court has a duty to make independent findings of jurisdiction considering all the evidence of record. Perkins v. Arkansas Trucking Servs., Inc., 351 N.C. 634, 637, 528 S.E.2d 902, 903-04 (2000).\nII. Jurisdiction\nIn the first assignment of error, Glatfelter asserts the Commission \u201clackfed] the jurisdiction to address the issue [presented] because Glatfelter is not an \u2018employer\u2019 subject to the Workers\u2019 Compensation Act.\u201d Specifically, Glatfelter argues that, following RFS\u2019 purchase of Ecusta, Glatfelter was not an employer as defined by N.C. Gen. Stat. \u00a7 97-2(3) (2003) and was not subject to the jurisdiction of the Commission. However, the subsequent sale of the Ecusta Division to RFS does not, standing alone, divest the Commission of jurisdiction over Glatfelter as plaintiff\u2019s employer at the time of the accident. See Lucas v. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976) (noting that the Commission\u2019s jurisdiction over issues of compensation under the Act depends on whether there existed, \u201cat the time of the accidentf,]\u201d an employer-employee relationship between the claimant and the party from whom compensation is sought). The parties stipulated that this relationship existed between plaintiff and Glatfelter on 23 May 1999, the date of the accident. This assignment of error is overruled.\nIII. Validity of Transfer of Liabilities\nA. Jurisdiction over Glatfelter\nIn the first argument contained in Glatfelter\u2019s second assignment of error, Glatfelter, citing (1) its inquiries and dealings with DOI in selling the Ecusta Division, (2) the subsequent notification to the Commission, and (3) RFS\u2019 payment of plaintiffs compensation benefits after the sale, asserts that \u201c[u]nder such circumstances, the combined actions of [DOI] and the [Commission] served to strip the [Commission] of jurisdiction over Glatfelter in this matter, and Glatfelter should be dismissed.\u201d In support of this argument, Glatfelter cites Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548 (1966); N.C. Gen. Stat. \u00a7 97-185(g) and (h); and N.C. Gen. Stat. \u00a7 58-2-1.\nNorth Carolina General Statutes \u00a7 58-2-1 statutorily creates DOI and charges it \u201cwith the execution of laws relating to insurance and other subjects placed under [it].\u201d Our Supreme Court\u2019s holding in Bryant merely concerned whether an employee could bring a malpractice claim against physicians who treat an employee\u2019s compensable injury and whether the Commission had \u201cjurisdiction to hear and determine such action.\u201d Bryant, 267 N.C. at 552, 148 S.E.2d at 554. North Carolina General Statutes \u00a7 97-185 contains, in relevant part, certain provisions concerning how DOI is to handle securities of self-insured employers. The instant case does not concern a plaintiff attempting to bring suit against his physician for alleged malpractice, and none of the above cited authority supports an argument that a course of conduct by DOI or the Commission somehow divests the Commission of jurisdiction. Moreover, we have found no support for the proposition that a course of action by DOI or the Commission could divest it of the jurisdiction which has been conferred upon it by statute. In any event, Glatfelter\u2019s objections to the Commission\u2019s jurisdiction over it conflict with the pre-trial agreement entered into, inter alios, by Glatfelter. The pre-trial agreement provided that Glatfelter agreed to certain stipulations from which the Commission could make findings of fact and conclusions of law. Included in such stipulations was that Glatfelter was subject to and bound by the applicable provisions of the Act. This assignment of error is overruled.\nB. Jurisdiction over Adjudication of the Validity of the Agreement\nGlatfelter alternatively argues that, even if the Commission had jurisdiction over Glatfelter, it did not have jurisdiction to adjudicate the validity of the terms of the acquisition agreement purporting to transfer the workers\u2019 compensation liability for the the Ecusta Division from Glatfelter to RFS. Citing TIG Ins. Co. v. Deaton, Inc., 932 F. Supp. 132 (W.D.N.C. 1996), Glatfelter contends the agreement was a discreet contract over which the Commission had no jurisdiction. We disagree.\nThe Commission is expressly vested with jurisdiction to determine \u201c[a]ll questions arising under\u201d the Workers\u2019 Compensation Act, see N.C. Gen. Stat. \u00a7 97-91 (2003), and \u201cis charged with the duty of administering provisions of the Act such as to provide speedy, substantial and complete relief to all parties bound by the Act.\u201d N.C. Ins. Guar. Ass\u2019n v. International Paper Co., 152 N.C. App. 224, 226, 569 S.E.2d 285, 286 (2002). The jurisdiction conferred by statute to the Commission also includes \u201csuch 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), appeal after remand, 94 N.C. App. 640, 381 S.E.2d 151 (1989), reversed on other grounds, 326 N.C. 476, 390 S.E.2d 136 (1990).\nIn the instant case, the Commission considered the acquisition agreement to determine whether Glatfelter could validly transfer its workers\u2019 compensation liabilities under the Act to RFS. North Carolina General Statutes \u00a7 97-6 (2003) provides as follows: \u201cNo contract or agreement, written or implied, no rule, regulation, or other device shall in any manner operate to relieve an employer in whole or in part, of any obligation created by this Article, except as herein otherwise expressly provided.\u201d We conclude that the portion of the contract that attempted to transfer the workers\u2019 compensation liabilities of Glatfelter to RFS was the type of device contemplated by N.C. Gen. Stat. \u00a7 97-6 such that adjudication of the validity of that device fell within the scope of the Commission\u2019s delegated authority under N.C. Gen. Stat. \u00a7 97-91.\nNor is our conclusion affected by the reasoning in TIG, which involved a dispute between an insurance company that provided workers\u2019 compensation coverage and an insurance company that provided excess workers\u2019 compensation coverage. TIG, 932 F.Supp. at 135. Neither TIG nor Clark v. Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354 (1964), upon which the TIG opinion relied, implicated the operation of N.C. Gen. Stat. \u00a7 97-6 but, rather, concerned whether coverage ever arose under the terms of the contract for excess workers\u2019 compensation insurance. This assignment of error is overruled.\nIV. Purported Transfer of Liabilities\nHaving determined the Commission had jurisdiction to make a determination with respect to the validity of the purported transfer of liabilities by Glatfelter to RFS, we now turn to whether the Commission properly decided the question. The Commission concluded that \u201cto the extent the agreements purported to transfer Glatfelter\u2019s workers\u2019 compensation liabilities\u201d under the Act, the agreement violated N.C. Gen. Stat. \u00a7 97-6 and was void ah initio. As this issue concerns statutory interpretation of the Act, it is a question of law we review de novo.\nWe have previously stated that an employer is \u201cprimarily liable to an employee for a workers\u2019 compensation award\u201d and \u201c \u2018must pay benefits to its employees, whether the employer has the necessary insurance, is self-insured, or has no insurance at all.\u2019 \u201d Tucker v. Workable Company, 129 N.C. App. 695, 700, 501 S.E.2d 360, 364 (1998) (quoting Ryles v. Durham County Hospital Corp., 107 N.C. App. 455, 461, 420 S.E.2d 487, 491 (1992)). Every employer is required to secure its obligations under the Act by either insuring its workers\u2019 compensation liability or self-insuring where it has the financial ability to pay for benefits. N.C. Gen. Stat. \u00a7 97-93 (2003). Noticeably absent in the Act, however, is a provision allowing one employer to effectively escape any obligation under the Act by transferring en toto all of its obligations to another employer by contract or otherwise. Moreover, we agree with the Commission that any attempt to do so would conflict with the plain language of N.C. Gen. Stat. \u00a7 97-6 as an attempt to \u201crelieve an employer [by contract] ... of an[] obligation created\u201d by the Workers\u2019 Compensation Act.\nThis does not mean, of course, that an employer is precluded from selling a division of a company to another. In such circumstances, the selling employer remains primarily liable for any workers\u2019 compensation liability arising during the time of ownership, and the selling employer is free to recover the costs associated with securing that liability in the purchase price of the division. Moreover, a selling employer may freely cease to self-insure if it complies with the following mandatory provision of N.C. Gen. Stat. \u00a7 97-185(g) (2003):\nIf a self-insurer ceases to self-insure . . . the self-insurer shall notify the Commissioner [of Insurance], and may recover all or a portion of the securities deposited with the Commissioner [of Insurance] upon posting instead an acceptable special release bond issued by a corporate surety in an amount equal to the total value of the securities. The special release bond shall cover all existing liabilities under the Act plus an amount to cover future loss development and shall remain in force until all obligations under the Act have been discharged fully.\nSubsection (h) prohibits release of a self-insurer\u2019s deposits by the Commissioner upon cessation of self-insurance \u201cuntil the self-insurer has discharged fully all the self-insurer\u2019s obligations under the Act.\u201d\nAs noted supra, the Commission determines an employer\u2019s liability under the Act by virtue of N.C. Gen. Stat. \u00a7 97-91. While we agree that DOI has the authority to administer and govern self-insurers\u2019 methods of securing their liabilities under the Workers\u2019 Compensation Act, nothing in the statutory scheme grants DOI the Commission\u2019s authority to determine what those liabilities are. In short, subsections (g) and (h) of N.C. Gen. Stat. \u00a7 97-185 do not, either by implication or expression, allow DOI to make determinations regarding whether a self-insurer has fully discharged its workers\u2019 compensation obligations. That determination has been, and remains, the province of the Commission.\nIt is undisputed that no special release bond was posted by Glatfelter. Additionally, RFS\u2019 certificate of deposit cannot be considered a special release bond because RFS is not a \u201ccorporate surety.\u201d See N.C. Gen. Stat. \u00a7 97-165(5) (2003) (defining a corporate surety as \u201can insurance company authorized by the Commissioner to write surety business\u201d in North Carolina); N.C. Gen. Stat. \u00a7 97-185(g). Accordingly, DOI improperly released Glatfelter\u2019s bond under N.C. Gen. Stat. \u00a7 97-185(h) since Glatfelter had not secured its obligations under the Act in a manner compliant with N.C. Gen. Stat. \u00a7 97-185(g).\nV. Ratification\nGlatfelter asserts the actions of DOI and the Commission after the purported assignment of liability to RFS ratified the acquisition agreement. Glatfelter fails to cite any legal authority or even a legal definition of the term ratification in its brief to this Court. It is not the duty of this Court to supplement an appellant\u2019s brief with legal authority or arguments not contained therein. This assignment of error is deemed abandoned by virtue of N.C. R. App. P. 28(b)(6) (2005).\nVI. Estoppel\nIn its next argument, Glatfelter \u201cemphatically contends that both [DOI] and the [Commission] are estopped from entering any order that requires Glatfelter to fund the workers\u2019 compensation claim[] at issue . . . No order of DOI enforcing Glatfelter\u2019s liability to plaintiff under the Act is contained in the record or pending before this Court; therefore, we need not address any argument concerning whether DOI is estopped in the instant case. Moreover, Glatfelter cannot assert estoppel against the Commission.\nThe common law doctrine of equitable estoppel serves \u201cto aid the law in the administration of justice when without its intervention injustice would result[,]\u201d see Thompson v. Soles, 299 N.C. 484, 486, 263 S.E.2d 599, 602 (1980), and prevents one from asserting a right otherwise available to him against another if his own conduct would render such an assertion of that right against the other unfair. LSB Fin. Servs., Inc. v. Harrison, 144 N.C. App. 542, 548, 548 S.E.2d 574, 579 (2001). \u201cEquitable estoppel is established by evidence that an individual . . . induces another to believe that certain facts exist and that other person rightfully relies on those facts to his detriment.\u201d Bunn Lake Prop. Owner\u2019s Ass\u2019n v. Setzer, 149 N.C. App. 289, 297, 560 S.E.2d 576, 582 (2002) (citations and internal quotation marks omitted).\nAssuming arguendo that Glatfelter could otherwise use the doctrine of estoppel to preclude the Commission from carrying out its duties under the Act, the actions necessary to effectuate the intended transfer of liabilities occurred before the Commission was involved in this action in any way or was even informed that the transfer was being attempted. Notably, no action by the Commission occurred until after the attempted transfer was complete. Accordingly, Glatfelter cannot, under these facts, show any action on the part of the Commission inducing Glatfelter to undertake the attempted transfer. Our research reveals no analogous application of the doctrine, nor are we persuaded the doctrine operates under these facts. This assignment of error is overruled.\nVIL N.C. Gen. Stat. \u00a7 97-93\nGlatfelter next asserts the Commission erred in ordering it to \u201csecure its obligations under the Workers\u2019 Compensation Act as required by N.C. Gen. Stat. \u00a7 97-93\u201d because \u201cself-insured employers are regulated exclusively by the Commissioner of Insurance\u201d and the Commission has no \u201cjurisdiction to require Glatfelter to secure any obligations that the [Commission] finds to exist.\u201d Under N.C. Gen. Stat. \u00a7 97-94, employers bound by the compensation provisions of the Act are required to file with the Commission, as opposed to DOI, evidence of compliance with N.C. Gen. Stat. \u00a7 97-93 as often as deemed necessary by the Commission. The statute goes on to expressly grant the Commission, as opposed to DOI, the authority to penalize any employer \u201cwho refuses or neglects to secure such compensation . . . .\u201d N.C. Gen. Stat. \u00a7 97-94. Moreover, once the Commission determined Glatfelter remained liable to plaintiff after the failed attempt to transfer its liability to RFS, it had the authority to order Glatfelter to take steps to secure that liability in a manner consistent with the Act and to impose penalties on Glatfelter for failure to do so. We hold the Commission properly exercised its authority in determining Glatfelter was an employer subject to the Act, and Glatfelter must secure its obligation to plaintiff by one of the permitted statutory methods in order to accomplish the opinion and award. This assignment of error is overruled.\nVIII. Necessary Parties\nIn its next assignment of error, Glatfelter asserts the Commission erred in determining no other parties were necessary to the action on the grounds that the acquisition agreement listed additional purchasing parties who were to be assuming Glatfelter\u2019s workers\u2019 compensation obligations. In the pre-trial agreement, one of the stipulated facts reads as follows: \u201cOn August 9, 2001, Glatfelter and [RFS] executed an Assumption Agreement, whereby RFS purported to assume the self-insured workers\u2019 compensation liabilities of certain Glatfelter employees, including [plaintiff].\u201d There is no error in relying on the parties\u2019 stipulation that the assumption of Glatfelter\u2019s workers\u2019 compensation obligations to plaintiff was by RFS. Therefore, all necessary parties were before the Commission, and this assignment of error is overruled.\nIX. Statutory Mechanism for Transfer of Liabilities\nGlatfelter asserts, in its next assignment of error, that the Act does permit the attempted transfer of liabilities. Specifically, Glatfelter contends N.C. Gen. Stat. \u00a7\u00a7 97-6, 97-185 and 97-51 (2003), \u201cwhen read together, provide a logical and effective mechanism for the release and discharge of Glatfelter\u2019s liability\u201d for plaintiff\u2019s claim. Glatfelter directs the attention of this Court to the last portion of N.C. Gen. Stat. \u00a7 97-6, which allows employers to use devices to relieve themselves of workers\u2019 compensation obligations where \u201cotherwise expressly provided\u201d in the Act. j\nGlatfelter\u2019s citation to the other two aforementioned provisions as expressly providing for the transfer contemplated in the instant case cannot be sustained. North Carolina General Statutes \u00a7 97-51 concerns liabilities between joint employers of an injured employee. It has no application in the instant case as Glatfelter and RFS were never joint employers of plaintiff. Glatfelter\u2019s reliance on subsections (g) and (h) of N.C. Gen. Stat. \u00a7 97-185 harken back to arguments already rejected herein and are likewise unavailing. There are no \u201cexpressly provided\u201d mechanisms satisfying the requirements of N.C. Gen. Stat. \u00a7 97-91 that sanction Glatfelter\u2019s attempt to transfer its obligations to RFS under the facts of the instant case, and this assignment of error is overruled.\nX. N.C. Gen. Stat. \u00a7 97-185(f)\nIn its last assignment of error, Glatfelter asserts the Commission erred in failing to order plaintiff to levy upon RFS\u2019 certificate of deposit under N.C. Gen. Stat. \u00a7 97-185(f) (2003), which provides as follows: \u201cNo judgment creditor, other than a claimant entitled to benefits under the Act, may levy upon any deposits made under this section.\u201d While subsection (f) endorses levying on applicable deposits by claimants entitled to benefits under the Act, nothing in the provision indicates that a claimant must levy on such a deposit or that the Commission has the authority to force a claimant to do so. Moreover, Glatfelter\u2019s assertion is premised on the incorrect supposition that, upon \u201c[l]evying on RFS\u2019 certificate of deposit[,] . . . [liability would fall upon the appropriate entity, and other claimants could avail themselves of this remedy.\u201d However, as our holding makes clear, Glatfelter and not RFS is the employer that is liable to plaintiff. For these reasons, we overrule this assignment of error.\nXI. Appeal by RFS\nRFS appeals that portion of the Commission\u2019s opinion and award that reads as follows: \u201cSince the purpose of the surety bond was to insure Glatfelter\u2019s workers\u2019 compensation obligations, the bond monies should be available for that purpose and therefore the parties shall immediately take the necessary steps to effectuate the underlying purpose for which the bond was issued.\u201d RFS asserts the certificate of deposit cannot be retained by DOI \u201cto \u2018insure\u2019 obligations that the Full Commission held could not be transferred by Glatfelter '\u25a0-and remained the sole responsibility of Glatfelter.\u201d We agree.\nThe Commission determined that RFS was not liable for Glatfelter\u2019s workers\u2019 compensation obligations as a result of the attempted transfer. Having determined the issue of liability, the method of handling the certificate of deposit belonging to RFS, when it had no obligations under the Act, falls within the ambit of DOI\u2019s jurisdiction. Accordingly, we reverse that portion of the opinion and award of the Commission ordering DOI to retain RFS\u2019 certificate of deposit.\nAffirmed in part and reversed in part.\nJudges HUNTER and JACKSON concur.\n. RFS actually posted a certificate of deposit as opposed to a bond.",
        "type": "majority",
        "author": "CALABRIA, Judge."
      }
    ],
    "attorneys": [
      "Neill S. Fuleihan and Timothy L. Finger, for employee-plaintiff",
      "Young, Moore, and Henderson, P.A., by Robert C. Paschal, John N. Fountain, and Michael W. Ballance, for employer-defendant.",
      "Stuart Law Firm, P.L.L.G., by Catherine R. Stuart and Charles C. Kyles, for the North Carolina Self-Insurance Guaranty Association.",
      "Mullen, Holland, & Cooper, P.A., by Langdon M. Cooper, Jesse V. Bone, Jr., Jason R. Shoemaker, and Nancy B. Paschall, for Langdon M. Cooper, Trustee in Bankruptcy for RFS Ecusta, Inc.",
      "Attorney General Roy Cooper, by Assistant Attorney General E. Clementine Peterson, for intervenor North Carolina Department of Insurance."
    ],
    "corrections": "",
    "head_matter": "JAMES GOODSON, Employee-Plaintiff and N.C. DEPARTMENT OF INSURANCE, ex rel. JAMES LONG, Commissioner, Intervenor v. P. H. GLATFELTER CO., Employer-Defendant; LANGDON M. COOPER, Trustee in Bankruptcy for RFS ECUSTA, INC., Defendant and NORTH CAROLINA SELF-INSURANCE GUARANTY ASSOCIATION, Defendant\nNo. COA04-886\n(Filed 19 July 2005)\n1. Workers\u2019 Compensation\u2014 sale of business \u2014 continuing jurisdiction of Industrial Commission\nAn employer who had sold its paper mill and workers\u2019 compensation liabilities after an employee\u2019s work-related accident continued to be subject to the jurisdiction of the Industrial Commission with regard to that accident.\n2. Workers\u2019 Compensation\u2014 jurisdiction of Industrial Commission \u2014 not divested by course of conduct\nNone of the cited authority supported an argument that a course of conduct by the Department of Insurance or the Industrial Commission could divest the Commission of the jurisdiction conferred on it by statute in a workers\u2019 compensation case involving an employer that had sold its business. Moreover, the parties had stipulated that the employer, Glatfelter, was bound by the provisions of the Workers\u2019 Compensation Act.\n3. Workers\u2019 Compensation\u2014 authority of Industrial Commission \u2014 agreement transferring obligations\nAdjudication of the validity of an agreement transferring workers\u2019 compensation liabilities along with a paper mill fell within the delegated authority of the Industrial Commission. N.C.G.S. \u00a7 97-6.\n4. Workers\u2019 Compensation\u2014 authority of Industrial Commission \u2014 discharge of obligation\nDetermining whether a self-insurer has fully discharged its workers\u2019 compensation obligations is the province of the Industrial Commission; the Department of Insurance does not have that authority, by implication or expression. The Department of Insurance in this case improperly released the bond of a self-insured employer which did not secure its obligations in a manner compliant with N.C.G.S. \u00a7 97-185(g).\n5. Appeal and Error\u2014 assignment of error \u2014 not supported by authority \u2014 abandoned\nAn assignment of error was deemed abandoned for failure to cite legal authority.\n6. Workers\u2019 Compensation\u2014 transfer of obligation \u2014 estoppel\nAssuming that estoppel could be asserted against the Industrial Commission in a case involving the attempted transfer of workers\u2019 compensation liabilities, the actions necessary for the transfer occurred before the Commission was informed or involved.\n7. Workers\u2019 Compensation\u2014 transferred liability \u2014 enforcement of award \u2014 authority of Commission versus Department of Insurance\nAlthough defendant argued that the Department of Insurance had exclusive regulatory jurisdiction, the Industrial Commission properly exercised its authority in determining that a self-insured employer who attempted to transfer its workers\u2019 compensation liabilities along with its paper mill remained subject to the Workers\u2019 Compensation Act.\n8. Workers\u2019 Compensation\u2014 necessary parties \u2014 sale of business and obligations\nAll of the necessary parties were before the Industrial Commission in a workers\u2019 compensation case arising from the sale of a paper mill and its liabilities.\n9. Workers\u2019 Compensation\u2014 sale of business \u2014 transfer of obligations \u2014 no statutory provisions\nAlthough N.C.G.S. \u00a7 97-6 allows employers to use devices to relieve themselves of workers\u2019 compensation obligations where \u201cotherwise expressly provided\u201d in the Workers\u2019 Compensation Act, there are no such mechanisms allowing the transfer under the facts of this case.\n10. Workers\u2019 Compensation\u2014 levy on deposits \u2014 allowed but not required\nAlthough N.C.G.S. \u00a7 97-185(f) endorses a levy upon applicable deposits by claimants entitled to workers\u2019 compensation benefits, nothing in the statute indicates that a claimant must levy on the deposit or that the Commission has the authority to force a claimant to do so.\n11. Workers\u2019 Compensation\u2014 unsuccessful transfer of obligation \u2014 order to retain certificate of deposit \u2014 erroneous\nThe Industrial\u2019Commission erred by ordering the Department of Insurance to retain a certificate of deposit belonging to defendant RFS where it had determined that RFS was not responsible for Glatfelter\u2019s workers\u2019 compensation obligations.\nAppeal by P. H. Glatfelter Co. and Langdon M. Cooper, trustee in bankruptcy for RFS Ecusta, Inc. from order entered 12 February 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 2 March 2005.\nNeill S. Fuleihan and Timothy L. Finger, for employee-plaintiff\nYoung, Moore, and Henderson, P.A., by Robert C. Paschal, John N. Fountain, and Michael W. Ballance, for employer-defendant.\nStuart Law Firm, P.L.L.G., by Catherine R. Stuart and Charles C. Kyles, for the North Carolina Self-Insurance Guaranty Association.\nMullen, Holland, & Cooper, P.A., by Langdon M. Cooper, Jesse V. Bone, Jr., Jason R. Shoemaker, and Nancy B. Paschall, for Langdon M. Cooper, Trustee in Bankruptcy for RFS Ecusta, Inc.\nAttorney General Roy Cooper, by Assistant Attorney General E. Clementine Peterson, for intervenor North Carolina Department of Insurance."
  },
  "file_name": "0596-01",
  "first_page_order": 626,
  "last_page_order": 640
}
