{ "id": 4362128, "name": "RICARDO DIAZ, Employee, Plaintiff v. JERRY MARK SMITH, d/b/a SMITH'S HOME REPAIR, Employer TRAVELERS INDEMNITY COMPANY, Carrier, Defendants", "name_abbreviation": "Diaz v. Smith", "decision_date": "2012-04-03", "docket_number": "No. COA10-694-2", "first_page": "570", "last_page": "580", "citations": [ { "type": "official", "cite": "219 N.C. App. 570" } ], "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": "645 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638641 ], "year": 2007, "pin_cites": [ { "page": "865", "parenthetical": "reviewing de novo determination of which of two competing statutes controlled in workers' compensation case" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0864-01" ] }, { "cite": "615 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633430 ], "year": 2005, "pin_cites": [ { "page": "912", "parenthetical": "\"[W]hile decisions from other jurisdictions may be instructive, they are not binding on the courts of this State.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0906-01" ] }, { "cite": "623 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634685 ], "year": 2005, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0045-01" ] }, { "cite": "664 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641630 ], "year": 2008, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0569-01" ] }, { "cite": "537 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "540-42", "parenthetical": "holding that premium finance company followed the provisions of N.C. Gen. Stat. \u00a7 58-35-85 and effectively cancelled the insured's policy" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12131779 ], "year": 2000, "pin_cites": [ { "page": "579-83", "parenthetical": "holding that premium finance company followed the provisions of N.C. Gen. Stat. \u00a7 58-35-85 and effectively cancelled the insured's policy" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0577-01" ] }, { "cite": "269 S.E.2d 117", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "124", "parenthetical": "\"An agent is one who acts for or in the place of another by authority from him.\"" } ], "opinion_index": 0 }, { "cite": "301 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561083 ], "year": 1980, "pin_cites": [ { "page": "56", "parenthetical": "\"An agent is one who acts for or in the place of another by authority from him.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0044-01" ] }, { "cite": "480 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53927 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0475-01" ] }, { "cite": "460 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "348" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917840 ], "year": 1995, "pin_cites": [ { "page": "793" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0790-01" ] }, { "cite": "382 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "748", "parenthetical": "\"In order to cancel a policy the carrier must comply with the procedural requirements of the statute . . . .\"" } ], "opinion_index": 0 }, { "cite": "325 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491345 ], "year": 1989, "pin_cites": [ { "page": "254", "parenthetical": "\"In order to cancel a policy the carrier must comply with the procedural requirements of the statute . . . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0246-01" ] }, { "cite": "284 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "719" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527091 ], "year": 1981, "pin_cites": [ { "page": "253-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0252-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-60", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "454 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557664, 2556706, 2559915, 2556493, 2558674 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0742-02", "/nc/339/0742-04", "/nc/339/0742-03", "/nc/339/0742-05", "/nc/339/0742-01" ] }, { "cite": "451 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "5", "parenthetical": "\"The procedure for cancellation of an insurance policy where the premium is financed by a premium financing company, and, where the insured defaults on the finance agreement, is governed by N.C. Gen. Stat. \u00a7 58-35-85[.]\"" }, { "page": "6", "parenthetical": "\"[C]ancellation requested by a finance company occurs in the same manner as if the insured requested the cancellation.\"" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525749 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "455-56", "parenthetical": "\"The procedure for cancellation of an insurance policy where the premium is financed by a premium financing company, and, where the insured defaults on the finance agreement, is governed by N.C. Gen. Stat. \u00a7 58-35-85[.]\"" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0454-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "184 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8184791 ], "year": 2007, "pin_cites": [ { "page": "164", "parenthetical": "reviewing de novo determination of which of two competing statutes controlled in workers' compensation case" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0162-01" ] }, { "cite": "684 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "154" } ], "opinion_index": 0 }, { "cite": "363 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151122 ], "year": 2009, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0612-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-35-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 15, "year": 2009, "pin_cites": [ { "page": "(l)" }, { "page": "(3)", "parenthetical": "emphasis added" }, { "page": "(4)" }, { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "312 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400416, 2404356, 2397747, 2398868, 2394174 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0309-03", "/nc/310/0309-01", "/nc/310/0309-02", "/nc/310/0309-05", "/nc/310/0309-04" ] }, { "cite": "308 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522027 ], "year": 1983, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0069-01" ] }, { "cite": "172 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8318957 ], "year": 2005, "pin_cites": [ { "page": "127", "parenthetical": "\"[W]hile decisions from other jurisdictions may be instructive, they are not binding on the courts of this State.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0119-01" ] }, { "cite": "273 P.2d 450", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10496623 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "454" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/p2d/273/0450-01" ] }, { "cite": "206 P. 665", "category": "reporters:state_regional", "reporter": "P.", "year": 1922, "pin_cites": [ { "page": "666", "parenthetical": "holding that employee was a \"party aggrieved\" entitled to seek review of industrial accident commission's determination that employee's injury was outside the scope of employer's insurance coverage and thus could recover only from employer" } ], "opinion_index": 0 }, { "cite": "57 Cal. App. 105", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2081634 ], "year": 1922, "pin_cites": [ { "page": "107", "parenthetical": "holding that employee was a \"party aggrieved\" entitled to seek review of industrial accident commission's determination that employee's injury was outside the scope of employer's insurance coverage and thus could recover only from employer" } ], "opinion_index": 0, "case_paths": [ "/cal-app/57/0105-01" ] }, { "cite": "98 Cal. Rptr. 768", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "21 Cal. App. 3d 774", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6039261 ], "year": 1971, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/21/0774-01" ] }, { "cite": "493 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551087, 551279, 551189, 551093, 551382 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0266-05", "/nc/347/0266-03", "/nc/347/0266-01", "/nc/347/0266-02", "/nc/347/0266-04" ] }, { "cite": "486 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712879 ], "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0703-01" ] }, { "cite": "175 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350019 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/175/0066-01" ] }, { "cite": "398 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "327 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496339 ], "year": 1990, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0624-01" ] }, { "cite": "484 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11709668 ], "year": 1997, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0217-01" ] }, { "cite": "191 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159711 ], "year": 2008, "pin_cites": [ { "page": "262-63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0256-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-271", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "564 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080608 ], "year": 2002, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0197-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 58-36-105", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 18, "year": 2009, "pin_cites": [ { "page": "(a)" }, { "page": "(a)(l)" }, { "page": "(a)(2)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "709 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "429" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1003, "char_count": 26542, "ocr_confidence": 0.737, "pagerank": { "raw": 4.7817273071113374e-08, "percentile": 0.3005347029884754 }, "sha256": "b4e303dbd67a50c50a089399e12e4269b12e6c7f668067652d961ae4626748a7", "simhash": "1:c9b5356bf1397800", "word_count": 4185 }, "last_updated": "2023-07-14T22:16:59.313771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge THIGPEN concur." ], "parties": [ "RICARDO DIAZ, Employee, Plaintiff v. JERRY MARK SMITH, d/b/a SMITH\u2019S HOME REPAIR, Employer TRAVELERS INDEMNITY COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nPlaintiff Ricardo Diaz (\u201cplaintiff\u2019) appeals from the Industrial Commission\u2019s opinion and award in which it awarded plaintiff workers\u2019 compensation benefits, but concluded that defendant-employer Jerry Mark Smith\u2019s (\u201cSmith\u201d) workers\u2019 compensation insurance policy had been effectively cancelled by defendant-carrier Travelers Indemnity Company (\u201cTravelers\u201d). This case was originally decided 5 April 2011. See Diaz v. Smith, _ N.C. App. _, 709 S.E.2d 424 (2011). We held that the Commission applied the notice requirements of the incorrect statute in determining whether Smith\u2019s insurance policy was properly cancelled. Consequently, we reversed and remanded the Commission\u2019s opinion and award. On 6 May 2011, Travelers\u2019 Petition for Rehearing was granted. After careful review upon rehearing, we affirm the Commission\u2019s opinion and award.\nFacts\nSmith began Smith\u2019s Home Repair in the summer of 2006. After submitting an application with the North Carolina Rate Bureau, Smith obtained a workers\u2019 compensation insurance policy with Travelers as an assigned risk policy. Because Smith could not afford to pay his premium in full, he financed the premium through a third party known as Monthly Payment Plan, Inc. (\u201cMPP\u201d). MPP\u2019s financing agreement included a power of attorney provision authorizing MPP to cancel Smith\u2019s policy if he failed to make timely payments. Smith signed neither the Travelers\u2019 policy nor the MPP financing agreement; both were signed in Smith\u2019s name by his insurance agent, David Cantwell. An acknowledgment page, not normally contained in \u201cregular policies,\u201d was included at the end of Smith\u2019s policy with Travelers, notifying him that, pursuant to the power of attorney clause in the financing agreement, MPP could cancel his policy for non-payment.\nIn November 2006, MPP cancelled Smith\u2019s policy for nonpayment of premiums. The policy was reinstated, however, after MPP received Smith\u2019s monthly premium payment. After Smith failed to make his premium payment for January 2007, MPP sent Smith a letter dated 2 January 2007, titled \u201cTen Day Notice,\u201d advising Smith that \u201cunless payment is made within ten days from the date of th[e] letter,\u201d his workers\u2019 compensation policy would be \u201ccancelled through the use of [the] power of attorney that [he] signed.\u201d MPP sent copies of this letter by regular mail to Smith\u2019s correct address in Asheville, North Carolina, as well as to Cantwell\u2019s office. Both Smith and Cantwell received their respective copy of the letter.\nAfter MPP did not receive payment from Smith, MPP sent a \u201cNotice of Cancellation\u201d letter, dated 15 January 2007, notifying Smith of MPP\u2019s intent to cancel his policy through the power of attorney provision in the finance agreement. Copies of this notice were sent to Smith\u2019s address and Cantwell\u2019s; both received the notice. A copy of the notice of intent also was sent to Travelers, notifying the insurer of MPP\u2019s intent to cancel Smith\u2019s policy through its power of attorney.\nBy certified mail, Traveler\u2019s sent a letter headed \u201cNotice of Cancellation\u2014Nonpayment of Premium Financed Policy,\u201d explaining that MPP had \u201cexercised its right to cancel th[e] policy as provided in its agreement with [Smith], due to [Smith]\u215b delinquent payment status.\u201d Although the notice of cancellation stated that it was \u201cissue [d]\u201d on 1 February 2007, it back-dated the cancellation to be effective 25 January 2007. Travelers\u2019 notice of cancellation was sent to Smith at the last known address in its file, which was not Smith\u2019s then-current address. Smith did not receive the notice; the certified letter was returned undelivered to Travelers on 12 February 2007.\nAfter conducting an audit on 5 March 2007, Travelers returned $317.00 in unearned premiums to MPP. MPP issued Smith a refund check of $225.00. Smith cashed the check without contacting anyone but his insurance agent for an explanation of the refund.\nPlaintiff began working for Smith around 17 April 2007 as a framer and roofer, working approximately 40 hours a week at $10.00 an hour. On 20 July 2007, plaintiff fell off the roof on which he was working and injured his left arm. Plaintiff was seen in Mission Hospital\u2019s emergency room, where x-rays showed that he had fractured his left humerus and dislocated his left elbow. His elbow was splinted and reduced. On 1 August 2007, plaintiff underwent \u201copen reduction, internal fixation of the humerus, and exploration of the radial nerve.\u201d\nPlaintiff was released by his doctor to return to sedentary work, without any use of his left arm, on 17 September 2007. On that day, plaintiff filed his claim for workers\u2019 compensation benefits. Defendants denied plaintiff\u2019s claim \u201cfor lack of coverage\u201d on 28 September 2007. Plaintiff did not return to work until 3 January 2008, when he started working for another employer at the same or greater average weekly wage. Plaintiffs doctor assigned a 20% permanent partial impairment rating to his left arm, with lifting restrictions of no more than 40 pounds with his left arm.\nAfter conducting an evidentiary hearing on plaintiffs claim on 29 May 2008, the deputy commissioner entered an opinion and award on 23 December 2008, in which he concluded that plaintiff had sustained a compensable injury on 20 July 2007, and, as a result, was entitled to disability as well as ongoing medical benefits. The deputy commissioner also determined that Travelers had failed to comply with the notice requirements of N.C. Gen. Stat. \u00a7 58-36-105 (2009) in attempting to cancel Smith\u2019s workers\u2019 compensation policy. Thus, the deputy commissioner concluded, Travelers\u2019 cancellation was ineffective and the policy was \u201cin full effect\u201d on 20 July 2007.\nDefendants appealed to the Full Commission, which issued an amended opinion and award on 19 March 2010, in which the Commission upheld the deputy commissioner\u2019s conclusion that plaintiff was entitled to disability and medical benefits as a result his compensable injury. The Commission ruled, however, that N.C. Gen. Stat. \u00a7 58-36-105 did not govern the cancellation of Smith\u2019s policy and that \u201cDefendant Smith\u2019s policy was effectively and properly cancelled pursuant to the power of attorney held by MPP and in accordance with \u00a7 58-35-85.\u201d Based on this determination, the Commission held that Smith, not Travelers, was liable for plaintiff\u2019s benefits. Plaintiff timely appealed to this Court.\nI\nBefore reaching plaintiff\u2019s argument for reversal of the Commission\u2019s opinion and award, we address Travelers\u2019 contention that plaintiff, as he was awarded all workers\u2019 compensation benefits that he claimed, is not a \u201cparty aggrieved\u201d by the Commission\u2019s decision. The Workers\u2019 Compensation Act provides that an appeal from an opinion and award of the Industrial Commission is subject to the \u201csame terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions.\u201d N.C. Gen. Stat. \u00a7 97-86 (2009); Ratchford v. C.C. Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002). Under N.C. Gen. Stat. \u00a7 1-271 (2009), \u201c \u2018[a]ny party aggrieved\u2019 is entitled to appeal in a civil action.\u201d Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 262-63, 664 S.E.2d 569, 574 (2008). A \u201cparty aggrieved\u201d is one whose legal rights have been denied or directly and injuriously affected by the action of the trial tribunal. Selective Ins. Co. v. Mid Carolina Insulation Co., 126 N.C. App. 217, 219, 484 S.E.2d 443, 445 (1997). If the party seeking appeal is not an aggrieved party, the party lacks standing to challenge the lower tribunal\u2019s action and any attempted appeal must be dismissed. Culton v. Culton, 327 N.C. 624, 626, 398 S.E.2d 323, 325 (1990), superseded by statute on other grounds as recognized in In re J.A.A., 175 N.C. App. 66, 72 73, 623 S.E.2d 45, 49 (2005).\nGenerally, when an employee has been awarded the benefits to which he or she claimed entitlement under the Workers\u2019 Compensation Act, the employee is not aggrieved and lacks standing to appeal the Industrial Commission\u2019s decision. See Henke v. First Colony Builders, Inc., 126 N.C. App. 703, 705, 486 S.E.2d 431, 432 (concluding claimant, who had been \u201cgranted workers\u2019 compensation benefits, as well as attorney\u2019s fees\u201d was not aggrieved by Commission\u2019s denial of request for interest to be included in payment to her attorney as \u201c [pjlaintiff suffer[ed] no direct legal injury in the denial of interest payments to her attorney\u201d), appeal dismissed, disc. review denied, and cert. denied, 347 N.C. 266, 493 S.E.2d 455 (1997). Plaintiff acknowledges that the Commission\u2019s decision awards him all the benefits he requested, but contends that he is a \u201cparty aggrieved\u201d in that \u201c [t]he decision by the Full Commission adversely affects [his] ability to collect his monetary benefits and all but negates his ability to receive further treatment.\u201d\nAlthough the parties fail to point to any North Carolina authority\u2014and we have found none\u2014directly on point, other appellate courts that have addressed this issue have held that an employee is \u201caggrieved\u201d by a workers\u2019 compensation tribunal\u2019s determination regarding workers\u2019 compensation insurance coverage. See, e.g., Shope v. Workmen\u2019s Comp. Appeals Bd., 21 Cal. App. 3d 774, 777, 98 Cal. Rptr. 768, 770 (1971) (\u201cPetitioner was affected by the decision of the Board determining that he had no recovery against Carrier and that he would have to look for recompense to an employer who was no longer in business and whose financial ability to pay the award was problematical. We, therefore, hold that petitioner has standing to have this court review the Board\u2019s determination as to the insurance coverage.\u201d); Associated Theaters v. Industrial Acc. Commission, 57 Cal. App. 105, 107, 206 P. 665, 666 (1922) (holding that employee was a \u201cparty aggrieved\u201d entitled to seek review of industrial accident commission\u2019s determination that employee\u2019s injury was outside the scope of employer\u2019s insurance coverage and thus could recover only from employer); In re Hughes, 273 P.2d 450, 454 (Okla. 1954) (holding that where benefits for injuries to employee was awarded against employer by an order of the state\u2019s industrial commission relieving insurer from liability and there was a possibility that employer would not be able to satisfy award due to lack of assets, employee was a \u201cparty aggrieved\u201d with standing to challenge order). Although not controlling, see Morton Bldgs., Inc. v. Tolson, 172 N.C. App. 119, 127, 615 S.E.2d 906, 912 (2005) (\u201c[W]hile decisions from other jurisdictions may be instructive, they are not binding on the courts of this State.\u201d), we find these authorities persuasive and conclude that plaintiff is a \u201cparty aggrieved\u201d by the Commission\u2019s determination that Smith\u2019s workers\u2019 compensation insurance was properly cancelled.\nThis conclusion is, moreover, consistent with the long-standing principle that courts \u201cmust construe the Workers\u2019] Compensation Act liberally so as to effectuate its human purpose of providing compensation for injured employees.\u201d Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 73, 308 S.E.2d 485, 488 (1983), disc. review denied, 310 N.C. 309, 312 S.E.2d 652 (1984); see also Hughes, 273 P.2d at 454 (\u201cWe think that, under the proper interpretation of our Workmen\u2019s Compensation Law, which we are bound to liberally construe in favor of the employee, when the protection of industrial insurance contemplated in the Act is denied such employee by a final order of the State Industrial Commission he certainly is an \u2018aggrieved\u2019 party ....\u201d).\nII\nTurning to plaintiff\u2019s contention on appeal, he argues that the Commission erroneously applied N.C. Gen. Stat. \u00a7 58-35-85 (2009), which provides the procedures for cancelling an insurance policy financed by a premium finance agreement, in determining whether Smith\u2019s workers\u2019 compensation insurance policy was effectively can-celled. Plaintiff contends that the procedures set out in N.C. Gen. Stat. \u00a7 58-36-105 (2009) for cancelling workers\u2019 compensation insurance policies governed the cancellation of Smith\u2019s insurance policy. Because, plaintiff argues, Travelers failed to follow; N.C. Gen. Stat. \u00a7 58-36-105\u2019s requirements in cancelling Smith\u2019s policy, the cancellation was ineffective and Smith\u2019s workers\u2019 compensation policy was in effect on the date of his compensable injury.\nIssues involving statutory interpretation are questions of law, reviewed de novo on appeal. In re Ernst & Young, LLP, 363 N.C. 612, 616, 684 S.E.2d 151, 154 (2009); see Oxendine v. TWL, Inc., 184 N.C. App. 162, 164, 645 S.E.2d 864, 865 (2007) (reviewing de novo determination of which of two competing statutes controlled in workers\u2019 compensation case).\nN.C. Gen. Stat. \u00a7 58-36-105, titled \u201cCertain workers\u2019 compensation insurance policy cancellations prohibited,\u201d provides in pertinent part:\n(a) No policy of workers\u2019 compensation insurance or employers\u2019 liability insurance written in connection with a policy of workers\u2019 compensation insurance shall be cancelled by the insurer before the expiration of the term or anniversary date stated in the policy and without the prior written consent of the insured, except for any one of the following reasons:\n(1) Nonpayment of premium in accordance with the policy terms.\n(b) Any cancellation permitted by subsection (a) of this section is not effective unless written notice of cancellation has been given by registered or certified mail, return receipt requested, to the insured not less than 15 days before the proposed effective date of cancellation. . . . Whenever notice of intention to cancel is required to be given by registered or certified mail, no cancellation by the insurer shall be effective unless and until such method is employed and completed. . . .\nN.C. Gen. Stat. \u00a7 58-36-105(a)-(b). N.C. Gen. Stat. \u00a7 58 35 85 sets out the procedure for cancellation of an insurance policy by an insurance premium finance company:\nWhen an insurance premium finance agreement contains a power of attorney or other authority enabling the insurance premium finance company to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be cancelled unless the cancellation is effectuated in accordance with the following provisions:\n(1) Not less than 10 days\u2019 written notice is sent by personal delivery, first class mail, electronic mail, or facsimile transmission to the last known address of the insured or insureds shown on the insurance premium finance agreement of the intent of the insurance premium finance company to cancel his or their insurance contract or contracts unless the defaulted installment payment is received. Notification thereof shall also be provided to the insurance agent.\n(2) After expiration of the 10-day period, the insurance premium finance company shall send the insurer a request for cancellation and shall send notice of the requested cancellation to the insured by personal delivery, first-class mail, electronic mail, electronic transmission, or facsimile transmission at his last known address as shown on the records of the insurance premium finance company and to the agent....\n(3) Upon receipt of a copy of the request for cancellation notice by the insurer, the insurance contract shall be can-celled with the same force and effect as if the request for cancellation had been submitted by the insured, without requiring the return of the insurance contract or contracts.\n(4) All statutory, regulatory, and contractual restrictions providing that the insured may not cancel the insurance contract unless the insurer first satisfies the restrictions by giving a prescribed notice to a governmental agency, the insurance carrier, an individual, or a person designated to receive the notice for said governmental agency, insurance carrier, or individual shall apply where cancellation is effected under the provisions of this section.\nN.C. Gen. Stat. \u00a7 58-35-85(l)-(4).\nWe previously held in this case that N.C. Gen. Stat. \u00a7 58-36-105 and N.C. Gen. Stat. \u00a7 58-35-85 overlap with regard to cancellation of a workers\u2019 compensation insurance policy, but that N.C. Gen. Stat. \u00a7 58-36-105 is the more specific statute and is, therefore, controlling. Diaz, _ N.C. App. at _, 709 S.E.2d at 429. Upon re-examination, we hold that only N.C. Gen. Stat. \u00a7 58-35-85 applies in situations, such as in the case sub judice, where a premium finance company with power of attorney initiates cancellation of a workers\u2019 compensation insurance policy.\nThe clear language of N.C. Gen. Stat. \u00a7 58-36-105 states that without written consent from the insured, a policy of workers\u2019 compensation insurance \u201cshall not be cancelled by the insurer before the expiration of the term or anniversary dates stated in the policy[,]\u201d subject to 10 enumerated exceptions. N.C. Gen. Stat. \u00a7 58-36-105(a)(l)-(10). This statute clearly applies to situations where the insurer seeks to cancel the insured\u2019s policy prior to expiration of the policy. It follows that this statute does not apply where the insured requests cancellation of the policy. Rather, N.C. Gen. Stat. \u00a7 58-35-85 applies where a premium finance company with power of attorney, such as MPP, steps into the shoes of the insured and requests cancellation of an insurance policy due to a breach of the financing agreement. Unisun Ins. Co. v. Goodman, 117 N.C. App. 454, 455-56, 451 S.E.2d 4, 5 (1994) (\u201cThe procedure for cancellation of an insurance policy where the premium is financed by a premium financing company, and, where the insured defaults on the finance agreement, is governed by N.C. Gen. Stat. \u00a7 58-35-85[.]\u201d), disc. review denied, 339 N.C. 742, 454 S.E.2d 662 (1995). While N.C. Gen. Stat. \u00a7 58-35-85 refers to \u201cinsurance contracts\u201d generally and does not specifically refer to workers\u2019 compensation insurance policies, this Court has held that N.C. Gen. Stat. \u00a7 58-35-85\u2019s predecessor, N.C. Gen. Stat. \u00a7 58-60, applied to workers\u2019 compensation policies. Graves v. ABC Roofing Co., 55 N.C. App. 252, 253-55, 284 S.E.2d 718, 719 (1981).\nHere, it does not appear that Travelers had any reason to attempt to cancel Smith\u2019s workers\u2019 compensation insurance policy, and did not attempt to do so. The premiums for the Travelers policy had been paid by MPP on Smith\u2019s behalf. MPP, however, was not receiving payment from Smith in violation of the financing agreement, and, therefore, had the ability through the power of attorney clause in the financing agreement to cancel Smith\u2019s policy with Travelers. MPP was bound to follow the provisions of N.C. Gen. Stat. \u00a7 58-35-85 regarding notice and return of unearned premiums, which it did. Pearson v. Nationwide Mutual Ins. Co., 325 N.C. 246, 254, 382 S.E.2d 745, 748 (1989) (\u201cIn order to cancel a policy the carrier must comply with the procedural requirements of the statute . . . .\u201d).\nStill, plaintiff contends that MPP is not the insured, and, therefore, it could not cancel the policy. Plaintiff claims that if MPP could not step into the shoes of the insured and cancel the policy, then Travelers was effectively canceling the policy without consent of the insured and in violation of N.C. Gen. Stat. \u00a7 58-36-105. Plaintiff points to the fact that N.C. Gen. Stat. \u00a7 58-36-105 refers to \u201cthe insured\u201d in section (a), but then refers to \u201cthe insured or the insured\u2019s representative\u201d in subsections (a)(2), (a)(5), and (a)(6). Plaintiff argues that the insured and the insured\u2019s representative are not one in the same. In the subsections mentioned by plaintiff, the legislature was setting forth the circumstances by which the insurer could cancel the insured\u2019s policy without consent of the insured. It is clear that the legislature wished to set out that wrongdoing by an insured or an insured\u2019s representative, whomever that might be, could potentially justify cancellation of the contract. In certain situations, the insured and the insured\u2019s representative may not be one in the same for purposes of N.C. Gen. Stat. \u00a7 58-36-105(a)(2), (a)(5), (a)(6); however, we do not interpret this language to mean that a premium finance company cannot step into the shoes of the insured and cancel the policy under the power of attorney provision. While Smith and MPP are not the same entity, \u201c[a] power of attorney creates an agency relationship between one who gives the power, the principal, and one who exercises authority under the power of attorney, the agent.\u201d Whitford v. Gaskill, 119 N.C. App. 790, 793, 460 S.E.2d 346, 348 (1995), rev\u2019d on other grounds, 345 N.C. 475, 480 S.E.2d 690 (1997); see Branch Banking and Trust Co. v. Creasy, 301 N.C. 44, 56, 269 S.E.2d 117, 124 (1980) (\u201cAn agent is one who acts for or in the place of another by authority from him.\u201d). MPP was Smith\u2019s agent and was acting in the place of Smith by authority from him.\nMoreover, N.C. Gen. Stat. \u00a7 58-35-85(3) (emphasis added), which we hold is controlling, states: \u201cUpon receipt of a copy of the request for cancellation notice by the insurer, the insurance contract shall be cancelled with the same force and effect as if the request for cancellation had been submitted by the insured, without requiring the return of the insurance contract or contracts.\u201d This Court has interpreted this provision and recognized that a premium finance company has the authority under the power of attorney provision of the financing agreement to cancel an insurance policy on behalf of the insured. See Cahoon v. Canal Ins. Co., 140 N.C. App. 577, 579-83, 537 S.E.2d 538, 540-42 (2000) (holding that premium finance company followed the provisions of N.C. Gen. Stat. \u00a7 58-35-85 and effectively cancelled the insured\u2019s policy); Unisun Inc. Co., 117 N.C. App. at 457, 451 S.E.2d at 6 (\u201c[C]ancellation requested by a finance company occurs in the same manner as if the insured requested the cancellation.\u201d). While Cahoon and Unisun were decided prior to the enactment of N.C. Gen. Stat. \u00a7 58-36-105, they are nevertheless controlling with regards to N.C. Gen. Stat. \u00a7 58-35-85, which is the applicable statute in this case. Based on this statute and the relevant caselaw, we hold that MPP was permitted to invoke the power of attorney provision in the financing agreement and cancel Smith\u2019s policy with Travelers. Effectively, Smith, the insured, was initiating cancellation of the policy through his agent. Because Travelers was not cancelling the policy on its own initiative, N.C. Gen. Stat. \u00a7 58-36-105 simply does not apply.\nPlaintiff also contends that even if MPP was permitted to request cancellation, N.C. Gen. Stat. \u00a7 58-35-85(4) \u201ccontemplates the additional restrictions contained in N.C. Gen. Stat. \u00a7 58-36-105(b).\u201d Plaintiff argues that \u201cthe legislature wanted the insured employer to receive a Notice of Cancellation that stated the reason for cancellation even when the insured himself had consented to such a cancellation.\u201d This interpretation would create an untoward result. Reading the statutes together, it is apparent that the legislature did not intend to require the insurer to notify the insured of the reason for cancellation pursuant to N.C. Gen. Stat. \u00a7 58-36-105(b) where the insured, either personally or through his agent, has provided a written notice of cancellation pursuant to N.C. Gen. Stat. \u00a7 58-35-85. We note that N.C. Gen. Stat. \u00a7 58-35-85(2) states that the premium finance company must provide notice to the insured that a request for cancellation has been made. This provision guarantees that the insured is made aware that his agent has requested cancellation. Smith received the Notice of Cancellation sent to Travelers on 15 January 2007.\nConclusion\nBased on the foregoing, we hold that MPP was authorized by the power of attorney clause of the financing agreement to cancel Smith\u2019s policy with Travelers and that MPP properly did so via the \u201cNotice of Cancellation\u201d sent on 15 January 2007. Consequently, because Travelers had received prior written consent of the insured and was not unilaterally attempting to cancel Smith\u2019s policy, N.C. Gen. Stat. \u00a7 58-36-105 is inapplicable in this case. We hold that the Industrial Commission properly concluded that \u201cDefendant Smith\u2019s policy was effectively and properly cancelled pursuant to the power of attorney held by MPP and in accordance with \u00a7 58-35-85.\u201d We affirm the opinion and award of the Full Commission.\nAffirmed.\nChief Judge MARTIN and Judge THIGPEN concur.\n. Due to an oversight at the Court, this opinion was delayed. We apologize for this delay.\n. Plaintiff argues that Smith\u2019s agent endorsed the power of attorney on Smith\u2019s behalf without authorization. Plaintiff did not argue before the Industrial Commission that the power of attorney was forged and therefore invalid. We decline to address this argument on appeal. N.C. R. App. P. 10(a)(1).", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "The Olive Law Firm, PA, by Juan A. Sanchez, for plaintiff-appellant.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Kelli A. Bums, M. Duane Jones, and Shelley W. Coleman, for defendant-appellee Travelers Indemnity Company." ], "corrections": "", "head_matter": "RICARDO DIAZ, Employee, Plaintiff v. JERRY MARK SMITH, d/b/a SMITH\u2019S HOME REPAIR, Employer TRAVELERS INDEMNITY COMPANY, Carrier, Defendants\nNo. COA10-694-2\n(Filed 3 April 2012)\n1. Workers\u2019 Compensation\u2014 party aggrieved\u2014determination of insurance coverage\u2014standing\nPetitioner employee in a workers\u2019 compensation case was a party aggrieved, even though he was awarded all the benefits that he claimed, and had standing to challenge the Industrial Commission\u2019s determination that defendant employer\u2019s workers\u2019 compensation insurance policy was properly cancelled. An employee is \u201caggrieved\u201d by a workers\u2019 compensation tribunal\u2019s determination regarding workers\u2019 compensation insurance coverage.\n2. Workers\u2019 Compensation\u2014cancellation of insurance policy \u2014premium finance agreement\u2014proper procedure for cancellation\nThe Industrial Commission did not erroneously apply N.C.G.S. \u00a7 58-35-85, which provides the procedures for cancelling an insurance policy financed by a premium finance agreement, in determining that plaintiff employee\u2019s workers\u2019 compensation insurance policy was effectively cancelled. The third-party financing company was authorized by the power of attorney clause of the financing agreement to cancel plaintiff\u2019s policy with Travelers and the financing company properly did so via the \u201cNotice of Cancellation\u201d sent on 15 January 2007.\nAppeal by plaintiff from opinion and award entered 19 March 2010 by the North Carolina Industrial Commission. Originally heard in the Court of Appeals 10 January 2011. Petition for Rehearing granted 6 May 2011.\nThe Olive Law Firm, PA, by Juan A. Sanchez, for plaintiff-appellant.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Kelli A. Bums, M. Duane Jones, and Shelley W. Coleman, for defendant-appellee Travelers Indemnity Company." }, "file_name": "0570-01", "first_page_order": 580, "last_page_order": 590 }