{
  "id": 8175952,
  "name": "ROBERT MORRISON, Employee, Plaintiff-Appellant v. PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INC., Employer, and KEY RISK MANAGEMENT SERVICES, Servicing Agent, Defendants-Appellees",
  "name_abbreviation": "Morrison v. Public Service Co. of North Carolina, Inc.",
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    "judges": [
      "Judges CALABRIA and GEER concur."
    ],
    "parties": [
      "ROBERT MORRISON, Employee, Plaintiff-Appellant v. PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INC., Employer, and KEY RISK MANAGEMENT SERVICES, Servicing Agent, Defendants-Appellees"
    ],
    "opinions": [
      {
        "text": "JACKSON, Judge.\nOn 22 April 2004, defendants \u2014 Public Service Company of North Carolina, Inc. (\u201cdefendant-employer\u201d) and Key Risk Management Services, which administers defendant-employer\u2019s self-funded workers\u2019 compensation account \u2014 voluntarily settled workers\u2019 compensation claims filed by Robert Morrison (\u201cplaintiff\u2019). Pursuant to the Agreement for Final Compromise Settlement and Release (\u201cAgreement\u201d), defendants would pay plaintiff a lump sum payment of $127,500.00 less attorneys\u2019 fees and would continue to pay plaintiff temporary total disability benefits up to the date the Agreement was approved by the North Carolina Industrial Commission. The parties submitted the Agreement to the Industrial Commission, and on 5 May 2004, the Industrial Commission entered an order approving the settlement. \u2022\nThe parties stipulated that pursuant to this Court\u2019s decision in Carroll v. Living Centers Southeast, Inc., 157 N.C. App. 116, 577 S.E.2d 925 (2003), defendants were required to make the settlement payment within twenty-four days to avoid imposition of a late payment penalty. The parties further stipulated that the twenty-four day period in which to make the payment would expire on 1 June 2004. On 24 May 2004, plaintiff\u2019s counsel informed defense counsel that the settlement payment had not been received and reminded defense counsel that if payment was not received by 1 June 2004, a ten percent late penalty would attach. Ultimately, two checks were mailed to plaintiff\u2019s counsel on 1 June 2004, with one check being received on 2 June 2004 and the other on 3 June 2004.\nBecause plaintiff did not receive the settlement payment by 1 June 2004, plaintiff filed a motion seeking the imposition of a ten percent late payment penalty. Executive Secretary Weaver of the Industrial Commission denied plaintiff\u2019s potion on 19 July 2004, and plaintiff appealed. Thereafter, defendants and plaintiff agreed to have the dispute decided by Deputy Commissioner Lorrie L. Dollar. Deputy Commissioner Dollar, by Opinion and Award entered 22 December 2004, reversed the decision of Executive Secretary Weaver and awarded plaintiff a ten percent late payment penalty. Defendants appealed to the Full Commission, and on 20 April 2006, the Full Commission of the Industrial Commission reversed the decisi\u00f3n of Deputy Commissioner Dollar and denied plaintiff\u2019s motion for the assessment of a late payment penalty. Commissioner Thomas J. Bolch dissented from the Full Commission\u2019s Opinion and Award, and plaintiff gave timely notice of appeal to this Court.\nOn appeal, plaintiff contends that the Industrial Commission erred in denying plaintiff\u2019s claim for a ten percent late payment penalty because the settlement payment was not received within the twenty-four day period required by North Carolina General Statutes, section 97-18. We disagree.\nWhen reviewing decisions of the North Carolina Industrial Commission, this Court is charged with determining whether there is competent evidence in the record to support the Commission\u2019s findings of fact and whether those findings, in turn, justify the Commission\u2019s conclusions of law. See Perkins v. U.S. Airways, 177 N.C. App. 205, 210-11, 628 S.E.2d 402, 406 (2006),\u201c disc. rev. denied, 361 N.C. 356, 644 S.E.2d 231 (2007). \u201cThe Commission\u2019s findings of fact are conclusive on appeal if supported by competent evidence, notwithstanding evidence that might support a contrary finding.\u201d Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435, 571 S.E.2d 860, 862 (2002). This Court\u2019s function is \u201c \u2018to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). \u201c[T]he [F]ull Commission is the sole judge of the weight and credibility of the evidence . . . .\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000) . \u201cThe Commission\u2019s conclusions of law are reviewed de novo.\u201d McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).\nAs this Court has held, \u201c[a]n agreement between the employer and workmen\u2019s compensation carrier and the employee for the payment of compensation benefits, when approved by the Industrial Commission, is binding on the parties thereto.\u201d Buchanan v. Mitchell County, 38 N.C. App. 596, 598, 248 S.E.2d 399, 400 (1978). \u201cIn approving a settlement agreement the Industrial Commission acts in a judicial capacity and the settlement as approved becomes an award enforceable, if necessary, by a court decree.\u201d Pruitt v. Knight Publ\u2019g Co., 289 N.C. 254, 258, 221 S.E.2d 355, 358 (1976). Pursuant to North Carolina General Statutes, section 97-18(e),\n[t]he first installment of compensation payable under the terms of an award by the Commission, or under the terms of a judgment of the court upon an appeal from such an award, shall become due 10 days from the day following expiration of the time for appeal from the award or judgment or the day after notice waiving the right of appeal by all parties has been received by the Commission, whichever is sooner.\nN.C. Gen. Stat. \u00a7 97-18(e) (2005). Section 97-18(g), in turn, provides a grace period, whereby\n[i]f any installment of compensation is not paid within 14 days after it becomes due, there shall be added to such unpaid installment an amount equal to ten per centum (10%) thereof, which shall be paid at the same time as, but in addition to, such installment, unless such nonpayment is excused by the Commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.\nN.C. Gen. Stat. \u00a7 97-18(g) (2005). Combining these statutory deadlines, this Court held in Carroll v. Living Centers Southeast, Inc., 157 N.C. App. 116, 577 S.E.2d 925, disc. rev. denied, 357 N.C. 249, 582 S.E.2d 29 (2003), that \u201cpayment of a compromise settlement award must be made within 24 days to avoid imposition of a late payment penalty unless a \u2018party is able to show to the satisfaction of the Commission that there has been error due to fraud, misrepresentation, undue influence or mutual mistake.\u2019 \u201d Carroll, 157 N.C. App. at 120-21, 577 S.E.2d at 929 (quoting N.C. Gen. Stat. \u00a7 9747(a)).\nAs the Full Commission correctly noted in its Opinion and Award, however, Carroll and its progeny have not clearly defined when payment is \u201cmade.\u201d Carroll itself held that the payment made pursuant to a compromise settlement agreement was late when received thirty-six days after the agreement was approved. Id. at 117, 577 S.E.2d at 927. Although the Court\u2019s opinion in Carroll discussed the facts of the case in terms of when the payment at issue was \u201creceived,\u201d the specific issue presented in the appeal was \u201cthe number of days within which payment must be tendered pursuant to a compromise settlement agreement for it to be deemed timely and avoid being subject to a late payment penalty.\u201d Id. at 118, 577 S.E.2d at 927 (emphasis added). In response to that question, this Court held that payment must be \u201cmade\u201d within twenty-four days. Id. at 120-21, 577 S.E.2d at 929. The Court, in effect, used \u201ctendered\u201d and \u201cmade\u201d interchangeably. See also Felmet v. Duke Power Co., Inc., 131 N.C. App. 87, 90, 504 S.E.2d 815, 816 (1998) (interpreting section 9748(g) and holding that \u201cemployers can avoid being subject to the 10% penalty by tendering settlement payments within thirty-nine days after notice of the award is provided.\u201d (emphasis added)), disc. rev. denied, 350 N.C. 94, 527 S.E.2d 666 (1999). Therefore, we hold that payment pursuant to a compromise settlement agreement must be tendered within twenty-four days to avoid a late payment penalty.\nAlthough we decline to provide a comprehensive set of circumstances by which payment is tendered pursuant to the late payment provision, we note that \u201c[a]s defined by Black\u2019s Law Dictionary, \u2018tender\u2019 means: \u2018An unconditional offer of money or performance to satisfy a debt or obligation.The tender may save the tendering party from a penalty for nonpayment or nonperformance or may, if the other party unjustifiably refuses the tender, place the other party in default.\u2019 \u201d In re Adoption of Anderson, 165 N.C. App. 413, 419 n.1, 598 S.E.2d 638, 642 (2004) (quoting Black\u2019s Law Dictionary 1479-80 (7th ed. 1999)), rev'd and disc. rev. improvidently allowed in part, 360 N.C. 271, 624 S.E.2d 626 (2006). By defining \u201ctender\u201d as an \u201cunconditional offer,\u201d we note that tendering payment is not limited to the immediate transfer of physical possession of the payment. Rather, tendering payment also may include depositing the payment, properly addressed to the payee, with the United States Postal Service or a designated delivery service authorized pursuant to 26 U.S.C. \u00a7 7502(f)(2). Cf. APC Operating P\u2019ship v. Mackey, 841 F.2d 1031, 1034 (10th Cir. 1988) (noting that \u201c \u2018tender\u2019 should be read to include an offer by mail\u201d because, among other reasons, \u201cthe common usage of \u2018tender\u2019 implies no requirement of personal delivery.\u201d (emphasis added)).\nOur holding is in accord both with the plain meaning of the statutory language and with our understanding of the legislative intent of this statutory provision. See Spruill v. Lake Phelps Vol. Fire Dep\u2019t, Inc., 351 N.C. 318, 320, 523 S.E.2d 672, 674 (2000) (\u201cWhen confronting an issue involving statutory interpretation, this Court\u2019s \u2018primary task is to determine legislative intent while giving the language of the statute its natural and ordinary meaning unless the context requires otherwise.\u2019 \u201d (quoting Turlington v. McLeod, 323 N.C. 591, 594, 374 S.E.2d 394, 397 (1988))).\nFirst, notwithstanding the Court\u2019s holding in Carroll discussing when payment must be \u201cmade,\u201d the statute itself uses the word \u201cpaid.\u201d N.C. Gen. Stat. \u00a7 97-18(g) (2005). Definitions of the verb to \u201cpay\u201d center around the verb to \u201cgive,\u201d such as \u201cto give money to in return for goods or services rendered\u201d or \u201cto give (money) in exchange for goods or services.\u201d The American Heritage College Dictionary 1004 (3rd ed. 1997). To \u201cgive,\u201d in turn, means, inter alia, \u201cto deliver in exchange or recompense,\u201d \u201cto accord or tender to another,\u201d \u201cto convey or offer for conveyance,\u201d or \u201cto execute and deliver.\u201d Id. at 577 (emphases added); accord Black\u2019s Law Dictionary 698 (7th ed. 1999). Thus, in accordance with the plain language of the statute, a late payment penalty applies whenever \u201cany installment of compensation is not paid [i.e., given, tendered, offered, or delivered] within 14 days after it becomes due,\u201d N.C. Gen. Stat. \u00a7 97-18(g) (2005), as opposed to when payment is not received within fourteen days.\nEvaluating the legislative intent behind section 97-18 compels the same reading of the statute. The Workers\u2019 Compensation Act strives to promote certainty in dealings between employees and employers regarding work-related injuries. See Barnhardt v. Yellow Cab Co., Inc., 266 N.C. 419, 427, 146 S.E.2d 479, 484 (1966) (\u201cThe purpose of the Act, however, is not only to provide a swift and certain remedy to an injured workman, but also to insure a limited and determinate liability for employers.\u201d (emphases added)), overruled in part on other grounds, Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 198, 347 S.E.2d 814, 818 (1986). The legislature\u2019s goal of providing certainty in workers\u2019 compensation proceedings and settlements is further evidenced by the requirement imposed on employers by North Carolina General Statutes, section 97-18(h):\nWithin 16 days after final payment of compensation has been made, the employer or insurer shall send to the Commission and the employee a notice, in accordance with a form prescribed by the Commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer or insurer fails to so notify the Commission or the employee within such time, the Commission shall assess against such employer or insurer a civil penalty in the amount of twenty-five dollars ($25.00).\nN.C. Gen. Stat. \u00a7 97-18(h) (2005). As the Industrial Commission correctly noted, \u201c[i]n order for defendants] to fulfill this statutory obligation, defendants] must know the exact date payment is made to both complete the form and determine when the statutory time period to file the form begins.\u201d Thus, our holding that payment is made when tendered provides employers with greater certainty with regards to their potential for liability pursuant to section 97-18(h).\nIn Conclusion of Law number 4, the Industrial Commission recognized the advantages of linking the date payment is made to the date payment is tendered:\nThe most clear and determinable time to consider payment made is the time at which defendants] mail[] the check by depositing it with the United States Postal Service or other recognized parcel service. Defendants have control over the point in time in which the check is mailed. The defendants know this date and will have certainty that their obligation has been met. When the check is handed over to the parcel service, the check is no longer in defendant\u2019s [sic] control. This is a clearly and easily identifiable date the parties can reference to analyze their responsibilities and determine if statutory requirements have been met. . . . Defendants should not be penalized for a delay in delivery since the actual delivery of the check is not in defendant\u2019s [sic] control, but that of the postal or other parcel service.\nConversely, the Commission explained the limitations and substantial disadvantages of looking to the date of receipt by the employee:\n\u25a0 To use the date plaintiff actually receives the check . . . will require defendants] to estimate the number of days it will take for the check to reach the plaintiff after mailing it to assure plaintiff receives the check within the twenty-four (24) day time period. By taking this estimation into consideration, defendant\u2019s [sic] period of time to make payment is shortened. Not only is this not an easily discernable period of time with any exactitude, but it also runs contrary to an otherwise simple process contemplated under N.C.G.S. \u00a797-18(g). Further, using the date plaintiff receives the check to determine when payment is made may cause confusion and create an opportunity for self-interest especially since defendants] do[] not have control over when plaintiff receives the check.\nThe uncertainty inherent in discerning the date of delivery is evidenced further by the facts of this case, where defendants mailed two checks on 1 June 2004, with plaintiff receiving one check on 2 June 2004 and the other check on 3 June 2004..\nWhen the rule set forth herein is applied to facts in the present case, we hold that defendants tendered or made the settlement payment within the twenty-four days as required by statute. The Industrial Commission entered an order on 5 May 2004 approving the parties\u2019 settlement agreement, and thus, defendants were required to make payment on or before 29 May 2004. 29 May 2004 was a Saturday, however, and the following Monday was Memorial Day. Thus, the payment deadline was extended to 1 June 2004. See Morris v. L.G. Dewitt Trucking, Inc., 143 N.C. App. 339, 343, 545 S.E.2d 474, 476 (2001) (noting that pursuant to Workers\u2019 Compensation Rule 609(8), when the last day of the payment period falls on a weekend or legal holiday, the payment period is tolled until the next day that is not a Saturday, Sunday, or legal holiday). It is uncontested that defendants mailed payment to plaintiff on 1 June 2004. Therefore, as defendants tendered or made payment within the twenty-four day period, the Full Commission did not err in denying plaintiffs motion for the imposition of a late payment penalty. Accordingly, we affirm the Opinion and Award of the Full Commission.\nAffirmed.\nJudges CALABRIA and GEER concur.\n. This Court in Carroll held that as a result of an amendment to section 97-17, \u201cthe statute eliminates the right to appeal within fifteen (15) days, thereby shortening the time for payment from 39 to 24 days.\u201d Carroll, 157 N.C. App. at 119, 557 S.E.2d at 928.",
        "type": "majority",
        "author": "JACKSON, Judge."
      }
    ],
    "attorneys": [
      "Scudder & Hedrick, by Alice Tejada, for plaintiff-appellant.",
      "Smith Law Firm, P.C., by John Brem Smith; and Teague, Campbell, Dennis & Gorham, L.L.P., by Bruce A. Hamilton and Tara D. Muller, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "ROBERT MORRISON, Employee, Plaintiff-Appellant v. PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INC., Employer, and KEY RISK MANAGEMENT SERVICES, Servicing Agent, Defendants-Appellees\nNo. COA06-749\n(Filed 17 April 2007)\nWorkers\u2019 Compensation\u2014 settlement agreement \u2014 payment\u2014 timeliness\nPayment pursuant to a workers\u2019 compensation compromise settlement agreement is made when tendered, and must be tendered within 24 days to avoid a late payment penalty. The Industrial Commission in this case correctly denied plaintiffs motion for imposition of a late payment penalty where the payment was mailed within the required period (with the last day tolled for the Memorial Day weekend).\nAppeal by plaintiff from opinion and award of the North Carolina Industrial Full Commission entered 20 April 2006 by Commissioner Dianne C. Sellers. Heard in the Court of Appeals 25 January 2007.\nScudder & Hedrick, by Alice Tejada, for plaintiff-appellant.\nSmith Law Firm, P.C., by John Brem Smith; and Teague, Campbell, Dennis & Gorham, L.L.P., by Bruce A. Hamilton and Tara D. Muller, for defendants-appellees."
  },
  "file_name": "0707-01",
  "first_page_order": 739,
  "last_page_order": 746
}
