Martin v. Piedmont Asphalt & Paving Co.

437 S.E.2d 696 (1993)

113 N.C. App. 121

William D. MARTIN, Employee-Plaintiff, Appellant, v. PIEDMONT ASPHALT & PAVING CO., Employer-Defendant, and The PMA Group, Carrier-Defendant, Appellees.

No. 9210IC1319.

Court of Appeals of North Carolina.

December 21, 1993.

*697 Walden & Walden by Daniel S. Walden and Margaret D. Walden, Winston-Salem, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe by Mel J. Garofalo and Paige E. Williams, Charlotte, for carrier defendants-appellees.

WELLS, Judge.

Plaintiff's attempted appeal is from an order of a Deputy Commissioner, and not from a final order of the Full Commission, and is therefore not an appeal of right. See G.S. § 7A-29; G.S. § 97-86. Simultaneously with the docketing of his attempted appeal, plaintiff properly filed with this Court a Petition for a Writ of Certiorari to review the questions presented in his attempted appeal. Because there are matters of important public policy presented by the record in this case, pursuant to the provisions of G.S. § 7A-32(c) and Rule 21(a)(1) of the Rules of Appellate Procedure, we deem it appropriate to issue certiorari to review the actions and proceedings of the Industrial Commission presented by this record.

We begin by reiterating that subsequent to his work-related injuries, plaintiff's employer agreed to pay him compensation of $220.00 per week beginning 14 September 1989 and continuing for "necessary" weeks. This agreement was approved by the Industrial Commission, and thereby became an award of the Commission. See G.S. § 97-17; see also Buchanan v. Mitchell County, 38 N.C.App. 596, 248 S.E.2d 399 (1978), disc. review denied, 296 N.C. 583, 254 S.E.2d 35 (1979). Such an award has the same binding effect as if plaintiff's claim had been adjudicated by a Commission hearing and award. Brookover v. Borden, Inc., 100 N.C.App. 754, 398 S.E.2d 604 (1990), disc. review denied, 328 N.C. 270, 400 S.E.2d 450 (1991).

The record before us reflects that the Industrial Commission has established an administrative procedure which allows and condones *698 the termination of compensation by an employer and the employer's insurance carrier by the mere filing of an Industrial Commission created form (Form 24) notifying the "Commission" and the employee that compensation is being terminated.

In this case, the Form 24 Application to Stop Compensation was "on the grounds that claimant was seen working with no difficulty: see attached." What was "attached" to the Form 24 was a type-written, unsigned document which purported to be a report of observation of plaintiff working on the engine of a used motor vehicle located in the yard of plaintiff's residence, and the observation that there were numerous used motor vehicles, along with "engine parts," scattered about the premises.

The record reflects that the Industrial Commission receives about 150 such Form 24s each week. When these are received at the Commission, they go to the desk of the Chief Claims Examiner, who, at the time pertinent to this case, was Ms. Martha Barr. The Form 24 applications are "processed" by the Chief Claims Examiner without reference to any other proceedings. Some are "approved," some are "denied." In this case, the Form 24 bears a stamp noting "APPROVEDAugust 23 1990NORTH CAROLINA INDUSTRIAL COMMISSION." The stamp also reflects the handwritten date of 8-23-90 and Ms. Barr's initials. Pursuant to this application, defendants stopped payment of plaintiff's compensation as of 7 August 1990.

The Form indicates on its face that a copy was mailed to plaintiff at his home address. The bottom of the form bears the following:

NOTICE TO EMPLOYEE: IF THERE IS ANY REASON WHY PAYMENT OF COMPENSATION TO YOU SHOULD NOT CEASE, YOU SHOULD NOTIFY THE INDUSTRIAL COMMISSION STATING SUCH REASON IN WRITING IMMEDIATELY UPON RECEIPT OF THIS NOTICE.

The Form 24 practice at the Commission is apparently carried out pursuant to Commission rules:

RULE 404. TERMINATION OF COMPENSATION (1) Payments of compensation undertaken pursuant to an award of the Industrial Commission shall continue until the terms of the award have been fully satisfied; provided, however, that in cases where the award is to pay compensation during disability, there is a rebuttable presumption that disability continues until the employee returns to work. (2) No insurance carrier or employer shall cease payment of compensation before the terms of the award have been fully complied with, unless and until such insurance carrier or employer has received approval of a proper request filed with the Industrial Commission. The reasons supporting such request shall be stated in full on the form prescribed, with supporting documents attached. A copy of the form, together with all attachments and supporting documents shall be mailed to or served upon the employee or his current attorney of record, if any. If defendant seeks to terminate compensation through a Form 24 application, it shall file it within twenty-one (21) days of the date defendant contends it was entitled to terminate compensation, or within a reasonable time of receipt of evidence alleged in support of the application. The request must be mailed to the Commission within five days of said date. The request and any response shall be addressed to the Commission's Chief Claims Examiner. (3) The Chief Claims Examiner will await a response from the plaintiff for 14 days from the date the request is received, and will take such action with reference thereto as appears to be proper under the circumstances; and, where indicated, will place the case upon the hearing docket to be heard in the usual manner. The disappointed party may seek relief as provided in Rule 703, Appeals from Administrative Decisions. (4) No request to discontinue the payment of compensation shall be approved without a hearing if the effect of such approval is to set aside the provisions of the agreement *699 under which compensation is being paid.

It is clear from the record in this case and the wording of the foregoing Rule that the Commission has exceeded its authority. Once an award is made by the Commission, it can be changed only upon statutory grounds. For example, under G.S. § 97-27, payment of awarded compensation may be suspended for the period an employee refuses to submit to an employer-requested or a Commission-ordered medical examination. See also G.S. § 97-32 (refusal to accept suitable employment). More pertinent to the question in this case, pursuant to the terms of G.S. § 97-47, an employer may seek to have an award amended based upon a change of the employee's disability condition.

There is, however, no statutory authority for the "Administrative" termination of an award, and we therefore hold that the Commission's "Form 24" proceedings in this case were unlawful, and that the termination of plaintiff's compensation was unlawful and therefore invalid.

Plaintiff has raised other questions which we deem inappropriate or not necessary to address for resolution of this case under our writ.

In conclusion, we treat the "Approval" of the Form 24 on 23 August 1990 as an invalid order of the Commission and hold that plaintiff is entitled to the payment of his previously awarded compensation. Upon remand, the Commission shall issue such further order as may be appropriate to secure payment of plaintiff's previously awarded compensation, consistent with this opinion.

We have carefully weighed and considered the impact of our decision upon those affected injured workers, employers and their insurance carriers. It is our judgment that our decision shall have prospective operation. See generally, Insurance Co. v. Ingram, Comr. of Insurance, 301 N.C. 138, 271 S.E.2d 46 (1980), reh'g denied, 301 N.C. 728, 274 S.E.2d 227 (1981). Form 24 proceedings pending before the Commission as of the date of certification of our opinion shall be terminated consistently with our opinion. Form 24 applications received on and after the date of certification of our opinion shall be rejected.

Reversed and remanded.

ARNOLD, C.J., and JOHNSON, J., concur.