{ "id": 4181635, "name": "ANDRE M. KEE, Employee, Plaintiff v. CAROMONT HEALTH, INC., Employer, SELF-INSURED, KEY RISK SERVICES, INC., Third-party Administrator, Carrier, Defendants", "name_abbreviation": "Kee v. Caromont Health, Inc.", "decision_date": "2011-01-04", "docket_number": "No. COA10-913", "first_page": "193", "last_page": "198", "citations": [ { "type": "official", "cite": "209 N.C. App. 193" } ], "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": "673 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642853 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "156", "parenthetical": "internal quotations and citation omitted" }, { "page": "158", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0149-01" ] }, { "cite": "663 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641508 ], "year": 2008, "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0322-01" ] }, { "cite": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "year": 2005, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0491-01" ] }, { "cite": "286 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "843" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 14", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519312 ], "year": 1982, "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0014-01" ] }, { "cite": "568 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "668-69" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 687", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251282 ], "year": 2002, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0687-01" ] }, { "cite": "604 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "317", "parenthetical": "\"When a contract contains provisions which are severable from an illegal provision and are in no way dependent upon the enforcement of the illegal provision for their validity, such provisions may be enforced.\" (internal quotations and citations omitted)" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410807 ], "year": 2004, "pin_cites": [ { "page": "101", "parenthetical": "\"When a contract contains provisions which are severable from an illegal provision and are in no way dependent upon the enforcement of the illegal provision for their validity, such provisions may be enforced.\" (internal quotations and citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0097-01" ] }, { "cite": "577 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "715", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 99", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185178 ], "year": 2003, "pin_cites": [ { "page": "103", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0099-01" ] }, { "cite": "581 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188153 ], "year": 2003, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0480-01" ] }, { "cite": "195 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165354 ], "year": 2009, "pin_cites": [ { "page": "470", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0463-01" ] }, { "cite": "191 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159481 ], "year": 2008, "pin_cites": [ { "page": "304-05" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0301-01" ] }, { "cite": "360 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788691 ], "year": 2005, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0041-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 546, "char_count": 11276, "ocr_confidence": 0.749, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33980996575476025 }, "sha256": "520695a62a15086fec14e67e9bd13287b7255e1edc204c19da53c263f0176bba", "simhash": "1:c6b2c47e4da6be4a", "word_count": 1716 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and ELMORE concur." ], "parties": [ "ANDRE M. KEE, Employee, Plaintiff v. CAROMONT HEALTH, INC., Employer, SELF-INSURED, KEY RISK SERVICES, INC., Third-party Administrator, Carrier, Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nCaromont Health, Inc. (\u201cCaromont\u201d) and Key Risk Services, Inc. (collectively \u201cdefendants\u201d) appeal an Opinion and Award of the North Carolina Industrial Commission (\u201cthe Commission\u201d) refusing to enforce defendants\u2019 mediated settlement agreement with Andre M. Kee (\u201cpaintiff\u2019). We affirm.\nI. Background\nPlaintiff was employed as a Certified Nursing Assistant for Caromont. On 15 January 2008, plaintiff reported to Caromont that she had injured her back while turning a patient in a hospital bed. Caromont reported plaintiff\u2019s injury to the Commission on 21 January 2008. After the injury, plaintiff continued to work under light duty restrictions until she was taken out of work by her doctor on 16 June 2008. On that same day, plaintiff filed a Form 33 request for hearing with the Commission.\nOn 18 September 2008, plaintiff and defendants conducted a mediated settlement conference regarding plaintiff\u2019s injury. At the conference, defendants offered plaintiff two options: defendants were willing to either (1) accept plaintiff\u2019s claim as compensable and have her return to a light duty job or (2) pay plaintiff a lump sum settlement and require her to resign and release all of her employment rights. Plaintiff agreed to accept the lump sum settlement offer, and the parties each executed a mediated settlement agreement. (\u201cthe settlement agreement\u201d).\nIn the settlement agreement, defendants agreed to pay plaintiff $20,000.00, and in return, plaintiff agreed to execute a standard compromise settlement agreement that complied with N.C. Gen. Stat. \u00a7 97-17. In addition, defendant agreed to pay the costs of the mediation and plaintiff agreed to pay all of her medical expenses. Finally, the settlement agreement stated that plaintiff \u201cwill resign and execute an employment release with her share of the mediation cost being consideration.\u201d\nAfter the mediation conference was completed, defendants\u2019 counsel prepared a \u201cFinal Compromise Settlement Agreement and Release\u201d and presented it to plaintiff. However, plaintiff refused to sign this agreement. Consequently, defendants filed a request with the Commission to enforce the settlement agreement on 19 January 2009.\nA hearing on defendants\u2019 request to enforce the settlement agreement was conducted on 12 March 2009. After the hearing, Deputy Commissioner Phillip A. Holmes entered an Opinion and Award approving the settlement agreement on 27 May 2009. Plaintiff appealed to the Full Commission. On 23 April 2010, the Commission entered an Opinion and Award holding that the settlement agreement failed to comply with both statutory requirements and Industrial Commission rules. As a result, the Commission refused to enforce the settlement agreement. Defendants appeal.\nII. Standard of Review\nThis Court reviews an award from the Commission to determine: \u201c(1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact.\u201d Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005). \u201cWhere there is competent evidence to support the Commission\u2019s findings, they are binding on appeal even in light of evidence to support contrary findings.\u201d Starr v. Gaston Cty. Bd. of Educ., 191 N.C. App. 301, 304-05, 663 S.E.2d 322, 325 (2008). \u201cMoreover, findings of fact which are left unchallenged by the parties on appeal are presumed to be supported by competent evidence and are, thus conclusively established on appeal.\u201d Chaisson v. Simpson, 195 N.C. App. 463, 470, 673 S.E.2d 149, 156 (2009) (internal quotations and citation omitted). The Commission\u2019s conclusions of law are reviewed de novo. Griggs v. Eastern Omni Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).\nIII. Settlement Agreement\nDefendants argue that the Commission erred by refusing to enforce the settlement agreement. Specifically, defendants contend that the Commission should have severed the resignation and release provision of the settlement agreement. Defendants argue that once this portion of the settlement agreement was severed, the settlement agreement fully complied with all statutory and Industrial Commission rule requirements. We disagree.\nInitially,we note that \u201c[c]ompromise settlement agreements, including mediated settlement agreements, are governed by general principles of contract law.\u201d Lemly v. Colvard Oil Co., 157 N.C. App. 99, 103, 577 S.E.2d 712, 715 (2003) (internal quotations and citation omitted). Settlements between employers and employees in workers\u2019 compensation cases are authorized by N.C. Gen. Stat. \u00a7 97-17 (2009).\nTo make its purpose that the North Carolina Workmen\u2019s Compensation Act shall be administered exclusively by the North Carolina Industrial Commission effective, the General Assembly has empowered the said Industrial Commission to make rules, not inconsistent with this act, for carrying out the provisions of the act.... The North Carolina Industrial Commission also has the power to construe and apply such rules[, the construction and application of which] . . . 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.\nChaisson, 95 N.C. App. at 473, 673 S.E.2d at 158 (internal quotations and citations omitted). Pursuant to this authority, the Commission has adopted rules that govern compromise settlement agreements under N.C. Gen. Stat. \u00a7 97-17. At issue in the instant case is Rule 502 (2)(e), which states, in relevant part:\nNo compromise agreement will be approved unless it contains the following language or its equivalent:\n(e) That no rights other than those arising under the provisions of the Workers\u2019 Compensation Act are compromised or released.\nWorkers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 502(2)(e), 2010 Ann. R. N.C. 1030. In the instant case, the Commission made the following finding of fact:\n28. In addition to finding that the Final Compromise Settlement Agreement and Release is not fair and just and in the best interests of all parties, the Full Commission further finds that the Mediated Settlement Agreement is not enforceable as a compromise settlement agreement because it does not meet, the requirements of Industrial Commission Rule 502(2)(e) as \u201crights other than those arising under the provisions of the Workers\u2019 Compensation Act\u201d were compromised and released in this settlement agreement. The language contained in and constituting a part of the Mediated Settlement Agreement itself that, \u201cE-II (Employee-plaintiff) will resign and execute an employment release with her share of the mediation cost being consideration\u201d shows that \u201crights other than those arising under the provisions of the Workers\u2019 Compensation Act\u201d were compromised and released in this settlement agreement. The Full Commission is not waiving this Rule requirement.\nDefendants do not dispute this finding of fact; instead, they argue that it is inconsequential that the settlement agreement violated Rule 502(2)(e). Defendants contend that the offending portion of the settlement agreement is severable from the agreement as a whole and \u201cthe Industrial Commission may still enforce those provisions over which it does have jurisdiction under general contract principles allowing unenforceable provisions of a contract to be severed from those provisions which are unenforceable.\u201d In support of their argument, defendants cite this Court\u2019s holding in Am. Nat\u2019l Elec. Corp. v. Poythress Commer. Contr\u2019rs., Inc., 167 N.C. App. 97, 101, 604 S.E.2d 315, 317 (2004) (\u201cWhen a contract contains provisions which are severable from an illegal provision and are in no way dependent upon the enforcement of the illegal provision for their validity, such provisions may be enforced.\u201d (internal quotations and citations omitted)) and Restatement (Second) of Contracts \u00a7 184 (1981) (\u201cIf less than all of an agreement is unenforceable . . . a.court may nevertheless enforce the rest of the agreement ... if the performance as to which the agreement is unenforceable is not an essential part of the agreed exchange.\u201d).\nWhile defendants have cited to a correct principle of contract law, this severability principle is immaterial to the instant case. Even assuming, arguendo, that the resignation and release provision was severable from the remainder of the settlement agreement, the agreement would still not comply with Rule 502(2)(e). Rule 502(2)(e) explicitly states that a settlement agreement must contain language that \u201cno rights other than those arising under the provisions of the Workers\u2019 Compensation Act are compromised or released.\u201d Workers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 502(2)(e), 2010 Ann. R. N.C. 1030. This language does not appear anywhere within the settlement agreement, whether or not it contains the resignation and release provision. In order to hold that the settlement agreement complied with Rule 502(2)(e), this Court \u201cwould be required to add language, rather than simply excise portions of the agreement]] which violate the [rule,]\u201d and that is not the role of our courts. Jackson v. Associated Scaffolders & Equip. Co., 152 N.C. App. 687, 691, 568 S.E.2d 666, 668-69 (2002).\nThe settlement agreement did not comply with Rule 502(2)(e). Although the Commission \u201chas discretionary authority to waive its rules where such action does not controvert the provisions of the statute[,]\u201d Hyatt v. Waverly Mills, 56 N.C. App. 14, 25, 286 S.E.2d 837, 843 (1982), it did not waive the enforcement of Rule 502(2)(e) in the instant case. Therefore, the Commission appropriately refused, under its rules, to enforce the settlement agreement. This argument is overruled.\nIV. Conclusion\nThe settlement agreement did not comply with the rules established by the Commission, even if the resignation and release provision was severed from the settlement agreement. Consequently, the Commission correctly refused to enforce the agreement. Since the Commission\u2019s decision can be affirmed on this basis alone, it is unnecessary to address defendants\u2019 remaining arguments. The Commission\u2019s Opinion and Award is affirmed.\nAffirmed.\nJudges HUNTER, Robert C. and ELMORE concur.\n. This provision will subsequently be referred to as \u201cthe resignation and release provision.\u201d", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "The Sumwalt Law Firm, by Vernon Sumwalt, for plaintiffappellee.", "Cranfill Sumner & Hartzog LLP, by Lawrence M. Baker, for defendant-appellants." ], "corrections": "", "head_matter": "ANDRE M. KEE, Employee, Plaintiff v. CAROMONT HEALTH, INC., Employer, SELF-INSURED, KEY RISK SERVICES, INC., Third-party Administrator, Carrier, Defendants\nNo. COA10-913\n(Filed 4 January 2011)\nWorkers\u2019 Compensation\u2014 settlement agreement \u2014 required language omitted \u2014 not enforceable\nA workers\u2019 compensation settlement agreement did not comply with the Industrial Commission rules where it did not contain explicit language that \u201cno rights other than those arising under the provisions of the Workers\u2019 Compensation Act are compromised or released.\u201d Even if a resignation and release provision was severable from the agreement as a whole, as defendant contended, the Commission correctly refused to enforce the agreement.\nAppeal by defendants from opinion and award entered 23 April 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 15 December 2010.\nThe Sumwalt Law Firm, by Vernon Sumwalt, for plaintiffappellee.\nCranfill Sumner & Hartzog LLP, by Lawrence M. Baker, for defendant-appellants." }, "file_name": "0193-01", "first_page_order": 203, "last_page_order": 208 }