{ "id": 4159017, "name": "CHARLES EGEN, Employee, Plaintiff v. EXCALIBUR RESORT PROFESSIONAL, Employer, TRAVELERS INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Egen v. Excalibur Resort Professional", "decision_date": "2008-08-05", "docket_number": "No. COA07-1204", "first_page": "724", "last_page": "734", "citations": [ { "type": "official", "cite": "191 N.C. App. 724" } ], "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": "650 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639480 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "824", "parenthetical": "citation, quotation marks, and ellipses omitted" }, { "page": "824" }, { "page": "824" }, { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0819-01" ] }, { "cite": "639 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637619, 12637620, 12637621 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/639/0652-01", "/se2d/639/0652-02", "/se2d/639/0652-03" ] }, { "cite": "630 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635993 ], "weight": 2, "pin_cites": [ { "page": "685" }, { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0681-01" ] }, { "cite": "590 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "162 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "year": 2004, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "520 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155793 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0092-01" ] }, { "cite": "515 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "pin_cites": [ { "page": "38" }, { "page": "38" }, { "page": "38" }, { "page": "38" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11216753 ], "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0093-01" ] }, { "cite": "349 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "555" }, { "page": "555" }, { "page": "555" }, { "page": "555" } ], "opinion_index": 0 }, { "cite": "318 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736107 ], "year": 1986, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0421-01" ] }, { "cite": "189 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "499" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547933 ], "year": 1972, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0120-01" ] }, { "cite": "337 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716956 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0127-01" ] }, { "cite": "450 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "572", "parenthetical": "citing Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477 (1985)" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525176 ], "year": 1994, "pin_cites": [ { "page": "291", "parenthetical": "citing Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0289-01" ] }, { "cite": "577 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511235, 1511365, 1511372, 1511567, 1511165 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0673-04", "/nc/356/0673-01", "/nc/356/0673-03", "/nc/356/0673-02", "/nc/356/0673-05" ] }, { "cite": "572 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "862-63", "parenthetical": "\"The AAA's[, American Arbitration Association,] Construction Industry Rule 40 . . . provided for service . . . [w]here all parties and the arbitrator agree, notices may be transmitted by electronic mail (E-mail), or other method of communication.\"" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 723", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251986 ], "year": 2002, "pin_cites": [ { "page": "725", "parenthetical": "\"The AAA's[, American Arbitration Association,] Construction Industry Rule 40 . . . provided for service . . . [w]here all parties and the arbitrator agree, notices may be transmitted by electronic mail (E-mail), or other method of communication.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0723-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 45-36.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)(2)", "parenthetical": "\"A person gives a notification by . . . [sjending it by facsimile transmission, electronic mail, or other electronic transmission to the recipient's address for giving a notification, but only if the recipient agreed to receive notification in that manner.\"" } ], "opinion_index": 0 }, { "cite": "191 S.E. 403", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "408" } ], "opinion_index": 0 }, { "cite": "211 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628163 ], "year": 1937, "pin_cites": [ { "page": "579-80" } ], "opinion_index": 0, "case_paths": [ "/nc/211/0571-01" ] }, { "cite": "599 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "921" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 875", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000585 ], "year": 2004, "pin_cites": [ { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0875-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-80", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(a)", "parenthetical": "\"The Commission may make rules, not inconsistent with this Article, for carrying out the provisions of this Article.\"" } ], "opinion_index": 0 }, { "cite": "590 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "298" }, { "page": "297-98" }, { "page": "297", "parenthetical": "determining notice of the opinion and award from deputy commissioner was proper when sent via fax" }, { "page": "297" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915005 ], "year": 2004, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0106-01" ] }, { "cite": "186 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8155241 ], "year": 2007, "pin_cites": [ { "page": "175", "parenthetical": "citation, quotation marks, and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0167-01" ] }, { "cite": "254 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "279" }, { "page": "279" }, { "page": "279" }, { "page": "279" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547645 ], "year": 1979, "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0028-01" ] }, { "cite": "361 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3745288, 3739688, 3741554, 3745749, 3740151, 3743896 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0168-05", "/nc/361/0168-06", "/nc/361/0168-04", "/nc/361/0168-03", "/nc/361/0168-01", "/nc/361/0168-02" ] }, { "cite": "178 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376121 ], "pin_cites": [ { "page": "29-30" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0025-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "parenthetical": "requiring that appeal to the Full Commission must be made \"within 15 days from the date when notice of the award shall have been given[.]\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "599 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "921" } ], "opinion_index": 1 }, { "cite": "165 N.C. App. 875", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000585 ], "year": 2004, "pin_cites": [ { "page": "878" } ], "opinion_index": 1, "case_paths": [ "/nc-app/165/0875-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-80", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)", "parenthetical": "\"[t]he Commission may make rules, not inconsistent with this Article, for carrying out the provisions of this Article\"" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 97-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 } ], "analysis": { "cardinality": 867, "char_count": 22735, "ocr_confidence": 0.745, "pagerank": { "raw": 9.707344401623222e-08, "percentile": 0.529988814019659 }, "sha256": "9646a2389a654bfaa48566951c027d017ad500f82ca0bcf3de1e2bcdfb3bcb6c", "simhash": "1:21096daa491e69fa", "word_count": 3753 }, "last_updated": "2023-07-14T16:44:10.260573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge HUNTER concurs in a separate opinion." ], "parties": [ "CHARLES EGEN, Employee, Plaintiff v. EXCALIBUR RESORT PROFESSIONAL, Employer, TRAVELERS INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nDeputy Commissioner Myra L. Griffin issued an opinion and award which, inter alia, denied plaintiff\u2019s claim for additional benefits. Plaintiff attempted to appeal the opinion and award to the Full Commission, and defendants filed a motion to dismiss the appeal as untimely. Plaintiff filed a motion for relief due to excusable neglect. Defendants\u2019 motion to dismiss was granted, and plaintiff filed a motion for reconsideration. Plaintiff\u2019s motion for reconsideration was denied. Plaintiff appeals both the granting of defendants\u2019 motion to dismiss and the denial of his motion for reconsideration. For the following reasons, we reverse and remand.\nI. Background\nOn or about 26 April 2007, Deputy Commissioner Myra L. Griffin issued an opinion and award which, inter- alia, denied plaintiff\u2019s claim for additional benefits. Deputy Commissioner Griffin\u2019s opinion and award was sent by email only to defendant\u2019s counsel and to a legal assistant in the office of plaintiff\u2019s counsel. The facts regarding the delivery of the opinion and award are not in dispute.\nIn a letter to the Industrial Commission (\u201cCommission\u201d), dated 16 May 2007, plaintiff\u2019s attorney, Bobby L. Bollinger, described the circumstances regarding his receipt of the opinion and award, in pertinent part, as follows:\nPlease accept this letter as the Plaintiffs Notice of Appeal of the Opinion and Award filed on April 26, 2007 by Deputy Commissioner Griffin.\nPlease note that I did not personally see the Opinion and Award until May 14, although it was apparently served exclusively by email on April 26, with that email being sent directly to defense counsel Sam Barker. However, that email was not sent directly to me, but rather to a clerical employee in my office who did not understand the significance of the email. I believe that the email to the Plaintiff should have been sent directly to me, rather than to a clerical employee, as the rules generally prevailing as to service of process require service on the attorney of record, not upon his clerical support staff. Furthermore, it is unfair to serve it directly on the lawyer for one party and not serve it at the same time directly on the lawyer for the other party. In the past, we have received unfavorable Opinions from the Commission by certified mail, return receipt requested. This one has yet to arrive in that fashion.\nOn or about 22 May 2007, defendants filed a motion to dismiss plaintiff\u2019s appeal because it was untimely. On or about 25 May 2007, plaintiff filed a response to defendants\u2019 motion to dismiss and also filed a motion for relief due to excusable neglect. In a letter dated 30 May 2007, defendants wrote to Chairman Lattimore and requested their letter serve as their response to plaintiff\u2019s response to defendants\u2019 motion to dismiss and to plaintiff\u2019s motion for relief. On 7 June 2007, Chairman Buck Lattimore issued an order granting defendants\u2019 motion to dismiss.\nOn or about 18 June 2007, plaintiff filed a motion for reconsideration along with an affidavit from Janice A. Craig (\u201cMs. Craig\u201d) which read in pertinent part,\n1. I am a legal assistant employed by the law firm of Bollinger & Piemonte, PC.\n2. On Thursday, April 26, 2007, I received an email from Cheryl Powell at the Industrial Commission, which appeared to be sent to Bobby Bollinger and Sam Barker attaching the Opinion and Award for the above-referenced case. Please see the attached Exhibit \u201cA\u201d. The email stated that failure to acknowledge receipt will result in sanctions. I emailed back that we did, in fact, receive the email.\n3. It appeared to me that that [sic] the email was sent to Mr. Bollinger and I was simply \u201cblind copied\u201d with the email because my name did not appear on the \u201cTo\u201d line. Instead, the following are the only names that appear on the \u201cTo\u201d line: \u201cBobby Bollinger; Sam Barker\u201d. See attached Exhibit \u201cA\u201d.\n4. Because I thought I had simply been \u201cblind copied\u201d and that the email had gone directly to Mr. Bollinger, I did not notify him that I had received the email. I know that Mr. Bollinger checks his email frequently throughout the day. Furthermore, neither the body of the email nor the attachment to it mentioned any deadlines for appeal rights. The usual notice that the Commission includes when it mails Opinions and Awards to us, Exhibit \u201cC,\u201d was not included.\n5. On May 15, Mr. Bollinger asked me to pull up the April 26 email. We then used the \u201cproperties\u201d radio button to identify the email addresses to which the Commission had sent the email. This revealed that the email had been sent directly to Mr. Barker and directly to Janice Craig, but not to Mr. Bollinger. See Exhibit \u201cB\u201d attached hereto.\nI have worked with this firm for a decade. During this time, we have received many Opinions and Awards and other Orders from the Commission. This case is the only instance in the past ten (10) years that I am aware of in which we received an Opinion and Award by way of email.\nOn 23 July 2007, Chairman Buck Lattimore denied plaintiff\u2019s motion for reconsideration.\nPlaintiff appeals both the granting of defendants\u2019 motion to dismiss and the denial of his motion for reconsideration. The issues before this Court are (1) whether the Commission erred by emailing its opinion and award to plaintiff\u2019s attorney\u2019s employee, rather than emailing it directly to plaintiff\u2019s attorney or using some alternative reliable means of notification, and (2) whether the Commission erred in denying plaintiff\u2019s motions for appropriate relief and reconsideration due to excusable neglect.\nII. Motion to Dismiss\nPlaintiff argues that the Commission erred\nby serving the unfavorable Deputy Commissioner Opinion and Award upon a clerical employee in plaintiffs counsel\u2019s office by email transmission, rather than directly to plaintiff\u2019s counsel or to plaintiff\u2019s counsel\u2019s office by certified mail, return receipt requested or some other obvious, reliable and effective means.\nChairman Buck Lattimore determined in his order granting defendants\u2019 motion to dismiss plaintiff\u2019s appeal that\nJanice Craig, plaintiff\u2019s attorney\u2019s legal assistant, received notice of the Opinion and Award by email on April 26, 2007[, and that] [plaintiff\u2019s notice of appeal to the Full Commission was made twenty (20) days after receiving notice of the deputy commissioner\u2019s Opinion and Award. Therefore plaintiff\u2019s appeal to the Full Commission was not timely made pursuant to N.C. Gen. Stat. \u00a7 97-85.\nPlaintiff did not assign error to the determinations, noted supra, in the order, but rather argues that the Commission erred in the manner in which it served notice upon him, specifically by (1) notifying plaintiff\u2019s attorney\u2019s employee, rather than plaintiff\u2019s attorney directly and (2) using email as the means of providing notice.\nA. Standard of Review\nOur review of a decision of the Industrial Commission is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law. The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings. This Court reviews the Commission\u2019s conclusions of law de novo.\nRamsey v. Southern Indus. Constructors Inc., 178 N.C. App. 25, 29-30, 630 S.E.2d 681, 685 (internal citations and internal quotation marks omitted), disc. rev. denied, 361 N.C. 168, 639 S.E.2d 652 (2006).\nB. Notice to Plaintiff\u2019s Attorney\u2019s Employee\n\u201cAn agent is one who, by the authority of another, undertakes to transact some business or manage some affairs on account of such other, and to render an account of it. He is a substitute, or deputy, appointed by his principal primarily to bring about business relations between the latter and third persons.\u201d SNML Corp. v. Bank, 41 N.C. App. 28, 36, 254 S.E.2d 274, 279 (1979). \u201c[T]he general agency doctrine holds the principal responsible for the acts of his agent[.]\u201d Ellison v. Gambill Oil Co., Inc., 186 N.C. App. 167, 175, 650 S.E.2d 819, 824 (2007) (citation, quotation marks, and ellipses omitted). Furthermore, in Cornell v. Western and S. Life Ins. Co., this Court determined that notice of the deputy commissioner\u2019s opinion and award was effective when received via fax by the law firm, not by the individual attorney assigned to the ease. 162 N.C. App. 106, 111, 590 S.E.2d 294, 298 (2004). As plaintiff does not argue that Ms. Craig was not his agent, but only that it was not proper to serve notice upon her, we conclude that the Commission could properly serve notice upon plaintiff\u2019s attorney through his employee, his agent. See Ellison at-, 650 S.E.2d at 824; Cornell at 111, 590 S.E.2d at 297-98; SNML Corp. at 36, 254 S.E.2d at 279.\nC. Notice via Email\nOur research of relevant law reveals that plaintiff is correct in noting that \u201c[t]here is nothing in the Worker\u2019s Compensation Act, or in the Industrial Commission\u2019s Rules for Workers\u2019 Compensation cases, that allows the Industrial Commission to serve Opinions and Awards on parties or their counsel by way of email.\u201d However, defendants are also correct in noting that \u201cthere is no rule prohibiting transmission of an Opinion and Award by way of email[.]\u201d\n\u201cN.C. Gen. Stat. \u00a7 97-80(a) . . . grants the Industrial Commission the power to make rules consistent with the Workers\u2019 Compensation Act in order to carry out the Act\u2019s provisions.\u201d Jackson v. Flambeau Airmold Corp., 165 N.C. App. 875, 878, 599 S.E.2d 919, 921 (2004); see N.C. Gen. Stat. \u00a7 97-80(a) (2001) (\u201cThe Commission may make rules, not inconsistent with this Article, for carrying out the provisions of this Article.\u201d).\nThe North Carolina Industrial Commission has the power not only to make rules governing its administration of the act, but also to construe and apply such rules. Its construction and application of its rules, duly made and promulgated, in proceedings pending before the said Commission, ordinarily are final and conclusive and not subject to review by the courts of this State, on an appeal from an award made by said Industrial Commission.\nWinslow v. Carolina Conference Ass\u2019n, 211 N.C. 571, 579-80, 191 S.E. 403, 408 (1937). As the statutory language only requires notice of the opinion and award, see N.C. Gen. Stat. \u00a7 97-85, see generally Cornell at 111, 590 S.E.2d at 297 (determining notice of the opinion and award from deputy commissioner was proper when sent via fax), and as there is no rule expressly prohibiting the use of email for notification purposes, we conclude that the Industrial Commission did not err in notifying plaintiff\u2019s attorney of the opinion and award through email.\nHowever, we also note that when email is used as the means of communication for important documents within our judicial system and administrative bodies, there are normally clearly delineated rules or guidelines for its use, which often require acquiescence to email as a method of communication. See, e.g., N.C. Gen. Stat. \u00a7 45-36.5(a)(2) (2007) (\u201cA person gives a notification by . . . [sjending it by facsimile transmission, electronic mail, or other electronic transmission to the recipient\u2019s address for giving a notification, but only if the recipient agreed to receive notification in that manner.\u201d); Marolf Constr. Inc. v. Allen\u2019s Paving Co., 154 N.C. App. 723, 725, 572 S.E.2d 861, 862-63 (2002) (\u201cThe AAA\u2019s[, American Arbitration Association,] Construction Industry Rule 40 . . . provided for service . . . [w]here all parties and the arbitrator agree, notices may be transmitted by electronic mail (E-mail), or other method of communication.\u201d), cert. denied, 356 N.C. 673, 577 S.E.2d 625 (2003). At the very least, rules governing permissible means of notification usually state whether and under what circumstances email may be used. See, e.g., N.C. Gen. Stat. \u00a7\u00a7 47C-3-108, 58-35-85(a)-(b) (2007). Therefore, if the Commission has begun a practice of using email for purposes of notification regarding opinion and awards upon which appeal rights will depend, we strongly encourage the Commission to establish rules for the use of email, so that all parties and counsel can be aware of the possibility that they may receive important, time-sensitive documents in this manner.\nD. Excusable Neglect\nThe order granting defendants\u2019 motion to dismiss stated it did not find excusable neglect. \u201c[T]he Commission has the inherent power and authority, in its discretion, to consider defendant\u2019s motion for relief due to excusable neglect.\u201d Allen v. Food Lion, Inc., 117 N.C. App. 289, 291, 450 S.E.2d 571, 572 (1994) (citing Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477 (1985)); see generally N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(1) (2001). \u201cWhether excusable neglect has been shown is a question of law, not a question of fact.\u201d Equipment, Inc. v. Lipscomb, 15 N.C. App. 120, 122, 189 S.E.2d 498, 499 (1972). \u201cThis Court reviews the Commission\u2019s conclusions of law de novo.\" Ramsey at 29-30, 630 S.E.2d at 685. \u201c[W]hat constitutes excusable neglect depends upon what, under all the surrounding circumstances, may be reasonably expected of a party in paying proper attention to his case.\u201d Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 425, 349 S.E.2d 552, 555 (1986). \u201cDeliberate or willful conduct cannot constitute excusable neglect, . . . nor does inadvertent conduct that does not demonstrate diligence[.]\u201d Couch v. Private Diagnostic Clinic, 133 N.C. App. 93, 103, 515 S.E.2d 30, 38 (internal citation omitted), affd, 351 N.C. 92, 520 S.E.2d 785 (1999).\nConsidering \u201call the surrounding circumstances . . . [and what] may be reasonably expected of a party in paying proper attention to his case\u201d we conclude that it was excusable neglect for Ms. Craig (1) to assume she was blind copied in the email because her \u201cname did not appear on the \u2018To\u2019 line,\u201d and (2) to assume that Mr. Bollinger had actually been emailed the opinion and award as the \u2018To\u2019 line was addressed to Bobby Bollinger and Sam Barker. See Couch at 103, 515 S.E.2d at 38; Thomas M. McInnis & Assoc., Inc. at 425, 349 S.E.2d at 555. Furthermore, Ms. Craig stated in her affidavit,\nI have worked with this firm for a decade. During this time, we have received many Opinions and Awards and other Orders from the Commission. This case is the only instance in the past ten (10) years that I am aware of in which we received an Opinion and Award by way of email.\n(Emphasis in original). Based on her ten years of experience, the lack of any Commission rules regarding the use of email which could have put her on notice that an opinion and award may arrive by email, and the appearance of the email, it was excusable neglect for Ms. Craig to conclude that Mr. Bollinger had also been sent a copy of the email and for her not to realize that plaintiff\u2019s right to appeal would depend upon her delivery of the email to Mr. Bollinger. See Couch at 103, 515 S.E.2d at 38; Thomas M. McInnis & Assoc., Inc. at 425, 349 S.E.2d at 555. Therefore, the failure of Mr. Bollinger to file the appeal within the 15 day period required by statute was excusable neglect due to the actions of his agent. See Ellison at 175, 650 S.E.2d at 824; Couch at 103, 515 S.E.2d at 38; Thomas M. Mclnnis & Assoc., Inc. at 425, 349 S.E.2d at 555; SNML Corp. at 36, 254 S.E.2d at 279.\nIII. Conclusion\nThough it was not error for the Commission to serve notice on plaintiff\u2019s attorney of the opinion and award of the deputy commissioner by email and through plaintiff\u2019s attorney\u2019s agent, see N.C. Gen. Stat. \u00a7 97-85; Ellison at 175, 650 S.E.2d at 824; Cornell at 111, 590 S.E.2d at 297; SNML Corp. at 36, 254 S.E.2d at 279, we do conclude that the Commission erred in not finding excusable neglect on the part of plaintiff\u2019s attorney for the reasons as stated above. Therefore, we reverse the order granting defendants\u2019 motion to dismiss and remand this case to the Full Commission for further proceedings not inconsistent with this opinion. As we are reversing the granting of defendants\u2019 motion to dismiss we need not address plaintiff\u2019s argument as to his motion for reconsideration.\nREVERSED AND REMANDED.\nJudge ELMORE concurs.\nJudge HUNTER concurs in a separate opinion.\n. See N.C. Gen. Stat. \u00a7 97-85 (2001) (requiring that appeal to the Full Commission must be made \u201cwithin 15 days from the date when notice of the award shall have been given[.]\u201d).\n. N.C. Gen. Stat. \u00a7 97-86 requires that awards from the Full Commission \u201cbe sent by registered mail or certified mail[.]\u201d N.C. Gen. Stat. \u00a7 97-86 (2001).\n. No rule permits or prohibits the use of fax to provide notice of an opinion and award from a Deputy Commissioner, but such notice was approved by this Court in Cornell. See Cornell at 162 N.C. 111, 590 S.E.2d 297 (2004).", "type": "majority", "author": "STROUD, Judge." }, { "text": "HUNTER, Judge,\nconcurring.\nI agree that the Industrial Commission\u2019s award and opinion must be reversed, but write separately because I would do so on different grounds.\nAs the majority notes, the two issues this appeal brought before us were (1) whether the Commission erred by emailing its opinion and award to plaintiffs attorney\u2019s employee, rather than emailing it directly to plaintiff\u2019s attorney or using some alternative reliable means of notification, and (2) whether the Commission erred in denying plaintiff\u2019s motions for appropriate relief and reconsideration due to excusable neglect. The majority reverses this case on the basis of the second issue; I would not reach the second, but rather reverse on the basis that email was not a valid form of communicating the Industrial Commission\u2019s ruling.\nAs the majority states, the Industrial Commission does have \u201cthe power to make rules consistent with the Workers\u2019 Compensation Act in order to carry out the Act\u2019s provisions.\u201d Jackson v. Flambeau Airmold Corp., 165 N.C. App. 875, 878, 599 S.E.2d 919, 921 (2004); N.C. Gen. Stat. \u00a7 97-80(a) (2007) (\u201c[t]he Commission may make rules, not inconsistent with this Article, for carrying out the provisions of this Article\u201d). Rule 803 of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission governs the procedure for any such new rule making:\nPrior to adopting, deleting, or amending any Workers\u2019 Compensation Rule of the Industrial Commission which affects the substantive rights of parties, the Industrial Commission will give at least SO days\u2019 notice of the proposed change in rules. Such notice will be given by publishing, in a newspaper or newspapers of general circulation in North Carolina, notice of such proposed change. Such notice will include an invitation to any interested party to submit in writing any objection, suggestion or other comment with respect to the proposed rule change or to appear before the Full Commission at a time and place designated in the notice for the purpose of being heard with respect to the proposed rule change.\nWorkers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 803, 2008 Ann. R. N.C. 1063, 1092 (emphasis added). There is no question that such a process did not occur in this case. No formal rule was promulgated authorizing this previously unused method of communication; rather, this new method was employed with no prior notice to anyone, including the parties to whom it was sent. As such, no valid rule authorizing the use of email as a method of communication exists, and thus the Commission\u2019s authority to create such rules is irrelevant.\nIt is worth noting too that, N.C. Gen. Stat. \u00a7 97-86 (2007), which governs appeals from the Full Commission to this Court, allows thirty days from notice of the award and specifies that such notice must be \u201csent by registered mail or certified mail[.]\u201d In contrast, per N.C. Gen. Stat. \u00a7 97-85 (2007), any appeal from the opinion and award of a deputy commissioner \u2014 as in this case \u2014 must be taken within fifteen days of the notice of the award. With the turnaround time between receipt and appeal halved, surely it is doubly important that the opinion and award from a deputy commissioner be communicated to the parties in the most reliable manner possible. The sudden use of a new method of communication \u2014 particularly one in which, as evidenced by this case, messages can so easily go astray \u2014 does not fit that description.\nThe majority states that, if emailing such opinions has become standard practice, \u201cwe strongly encourage the Commission to establish rules for the use of email[.]\u201d Until such a rule is promulgated, however, the Full Commission may not simply select any method of communication available and use it to convey the time-sensitive information contained in its opinion and award.\nThus, I would reverse this case based on the fact that the Industrial Commission has not promulgated a rule authorizing the use of email as a method of notifying parties of opinions and awards; I would therefore not reach the issue of excusable neglect.", "type": "concurrence", "author": "HUNTER, Judge," } ], "attorneys": [ "Bollinger & Piemonte, PC, by Bobby L. Bollinger, Jr., for plaintiff-appellant.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Samuel E. Barker, for defendant-appellees." ], "corrections": "", "head_matter": "CHARLES EGEN, Employee, Plaintiff v. EXCALIBUR RESORT PROFESSIONAL, Employer, TRAVELERS INSURANCE COMPANY, Carrier, Defendants\nNo. COA07-1204\n(Filed 5 August 2008)\nWorkers\u2019 Compensation\u2014 notice sent by email \u2014 sending to agent rather than directly to attorney \u2014 excusable neglect\nThe Industrial Commission erred in a workers\u2019 compensation case by granting defendants\u2019 motion to dismiss and denying plaintiff\u2019s motion for reconsideration based on excusable neglect for failure to file the appeal within the fifteen-day period required by statute when the Commission emailed its opinion and award to plaintiff\u2019s attorney\u2019s employee rather than emailing it directly to \u2022 plaintiff\u2019s attorney because: (1) although it was permissible for the Commission to serve notice to plaintiff\u2019s employee as his agent and to use email, all the surrounding circumstances showed that it was excusable neglect for the employee to assume she was blind copied in the email since her name did not appear on the \u201cTo\u201d line, and to assume that her boss had actually been emailed the opinion and award as the \u201cTo\u201d line was addressed to her boss and another attorney; and (2) based on the employee\u2019s ten years of experience, the lack of any Commission rules regarding the use of email which could have put her on notice that an opinion and award may arrive by email, and the appearance of the email, it was excusable neglect for the employee to conclude that her boss had also been sent a copy of the email and for her not to realize that plaintiff\u2019s right to appeal would depend upon her delivery of the email to her boss.\nJudge HUNTER concurring.\nAppeal by plaintiff from orders entered 7 June and 23 July 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 March 2008.\nBollinger & Piemonte, PC, by Bobby L. Bollinger, Jr., for plaintiff-appellant.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Samuel E. Barker, for defendant-appellees." }, "file_name": "0724-01", "first_page_order": 756, "last_page_order": 766 }