Gore v. Southwest Airlines Co.

*********** Upon review of the competent evidence of record, with reference to the errors assigned, and the briefs and oral arguments of the parties, the Full Commission finds that good grounds exist to remand this matter to the Deputy Commissioner level for an evidentiary hearing. *********** The proceedings before the Deputy Commissioner concerned two (2) different claims, North Carolina Industrial Commission File Number 025121, which involves an admittedly compensable work injury that occurred on March 13, 2000 to Plaintiff's right knee, and North Carolina Industrial Commission File Number 216175, which involves a denied workers' compensation claim to Plaintiff's left knee occurring on or about April 16, 2000. Following Plaintiff's *Page 2 March 13, 2000 work injury to her right knee, she returned to work for Defendant-Employer. However, in January 2001, Defendant-Employer terminated Plaintiff's employment due to various attendance issues. With respect to North Carolina Industrial Commission File Number 216175, on March 5, 2001, Plaintiff filed a Form 18 alleging a work injury to her left knee as a result of "over compensating" due to the original March 13, 2000 work injury to her right knee. Defendants denied this claim via a Form 61 and a Form 33R. The issues in contention are: (1.) Whether the record should be re-opened to hear additional evidence. (2.) Whether Plaintiff's claims should be dismissed with prejudice for failure to prosecute them in a timely manner. (3.) Whether attorney's fees should be assessed against Plaintiff under N.C. Gen. Stat. § 97-88.1. The Full Commission finds and concludes that the prior order of the Executive Secretary consolidating this claim with I.C. File Number 025121 should be vacated and a separate order should be entered in each case. The Full Commission further finds and concludes that an evidentiary hearing is necessary to determine the issues in this case (I.C. File Number 216175). Therefore, the Full Commission hereby ORDERS that this case be remanded to Chief Deputy Commissioner Wanda B. Taylor for assignment to a Deputy Commissioner for the taking of any evidence Plaintiff intends to present on this claim only (I.C. File Number 216175). At the hearing before the Deputy Commissioner, Defendants may present evidence on Defendants' Motion to Dismiss consistent with the requirements of Rule 613 of the Workers' Compensation Rules of the North Carolina Industrial Commission and Lee v. Roses, which requires evidence of the following factors: whether Plaintiff acted in a manner which deliberately or unreasonably delayed the matter; the amount of prejudice, if any, Defendants were caused by Plaintiff's failure *Page 3 to prosecute; and the reason, if one exists, that sanctions short of dismissal would not suffice. Lee v. Roses, 162 N.C. App. 129, 133,590 S.E.2d 404, 407 (2004). The Deputy Commissioner shall gather the evidence, order a transcript of the proceedings before her, and forward such transcript to the Full Commission for review and decision. Upon receipt of the transcript of the remanded proceedings, the Full Commission shall enter an Order setting forth a schedule for briefing and for further oral arguments, if necessary. All correspondence from the parties to the Full Commission concerning this matter shall be directed to Bernadine S. Ballance, Commissioner. It is further ORDERED that the consolidation order of the Executive Secretary in this claim is vacated. No costs are assessed at this time. This the ___ day of July 2009. S/___________________ BERNADINE S. BALLANCE COMMISSIONER CONCURRING: S/_____________ LAURA KRANIFELD MAVRETIC COMMISSIONER S/_____________ CHRISTOPHER SCOTT COMMISSIONER