              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-982

                                 Filed: 5 May 2020

North Carolina Industrial Commission, I.C. No. 15-048700

PAMELA LAUZIERE, Employee, Plaintiff,

             v.

STANLEY MARTIN COMMUNITIES, LLC, Employer, and AMERICAN ZURICH
INSURANCE COMPANY, Carrier, Defendants.


      Appeal by Plaintiff from Opinion and Award entered 22 May 2018 by the Full

North Carolina Industrial Commission. Heard in the Court of Appeals 10 April 2019.


      Lennon, Camak & Bertics, PLLC, by S. Neal Camak and Michael W. Bertics,
      for plaintiff-appellant.

      Lewis & Roberts, P.L.L.C., by Mallory E. Lidaka and Bryan L. Cantley, for
      defendants-appellees.


      MURPHY, Judge.


      The North Carolina Industrial Commission’s (“the Commission”) conclusions

of law must be justified by its findings of fact and its findings of fact must be

supported by competent evidence. As a sanction, the Full Industrial Commission

dismissed Pamela Lauziere’s (“Lauziere”) claim with prejudice for failure to prosecute

after it found that the “monetary damages incurred by [Stanley Martin Communities

(“Stanley Martin”) and Zurich American Insurance, (together, “Defendants”)] as a

result of [Lauziere’s] conduct could not be recouped by Defendants even if ordered by

the Commission.” This finding is unsupported by the evidence because no competent
                     LAUZIERE V. STANLEY MARTIN CMTYS, LLC

                                 Opinion of the Court



evidence suggests Lauziere is unable to pay monetary damages or the Defendants are

unable to recoup their losses.   Accordingly, we reverse and remand for further

proceedings.

                                 BACKGROUND

        Lauziere was a realtor for Stanley Martin. On 20 September 2015, Lauziere

allegedly sustained an injury while trying to manually shut a garage door at a model

home. Stanley Martin denied Lauziere’s claim for the alleged injuries.

        Lauziere filed her request for hearing with the Commission on 30 November

2015. On 7 January 2016, Defendants sent Lauziere pre-hearing interrogatories and

a Request for Production of Documents. This first set of discovery requests asked for

information including medical information or documentation detailing Lauziere’s

medical history before and after the alleged injury. In February 2016, Lauziere

responded to Defendants’ first set of discovery requests.      In part, her counsel

responded that certain medical records were unavailable and would be

“supplemented” at a later time. Following an impasse at a Commission ordered

mediation, Lauziere’s attorney was allowed to withdraw by order filed 10 March 2016.

On 16 March 2016, Defendants served a second set of discovery requests on the now

pro se Lauziere. The parties received notice the case was set for hearing on 3 May

2016.




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                                  Opinion of the Court



      On 22 April 2016, seven days after the 30-day deadline for Lauziere to file her

discovery responses, Defendants moved for an order compelling Lauziere to respond

to their second set of discovery requests. Three days later, Lauziere underwent major

lower back surgery, and she notified Defendants of her condition. Lauziere did not

file a response to Defendants’ Motion to Compel. On 28 April 2016, the deputy

commissioner continued the case off of his 3 May 2016 hearing docket. On 16 June

2016, in an email to Defendant’s counsel, Lauziere responded to Defendants’ second

set of discovery and requested her case be set on an expedited hearing docket. Six

days later, Lauziere emailed Defendants to confirm they received her 16 June 2016

correspondence, but Defendants responded alleging insufficiency.

      Over a year passed.

      On 13 June 2017, Defendants moved to dismiss with prejudice. Lauziere

responded to that motion within 24 hours. On 6 September 2017, a hearing was held

on the Motion to Dismiss with Prejudice, and Lauziere attended this hearing pro se.

Five days later, the Commission filed an Opinion and Award dismissing Lauziere’s

case with prejudice in accordance with Industrial Commission Rule 616(b).

      Lauziere obtained legal counsel and appealed to the Full Industrial

Commission on 18 September 2017. On 22 May 2018, the Full Industrial Commission

filed an Opinion and Award affirming the decision dismissing Lauziere’s case with

prejudice. Plaintiff timely appeals.



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                                   Opinion of the Court



                                      ANALYSIS

      “Appellate review of an award from the Industrial Commission is generally

limited to two issues: (i) whether the findings of fact are supported by competent

evidence, and (ii) whether the conclusions of law are justified by the findings of fact.”

Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) (citation

omitted).   However, “the choice of sanctions is a matter reviewed for abuse of

discretion only.” Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11,

16, 510 S.E.2d 388, 392 (1999). Factors we have considered include the exclusivity

provision of the Workers’ Compensation Act, “the appropriateness of alternative

sanctions under Rule 37, the proportionality of dismissal to the actions meriting

sanction, and whether other statutory powers, such as holding a person in contempt

. . . , can effectuate the result desired by the imposition of sanctions.” Id. at 17, 510

S.E.2d at 393. We held, “when viewed in light of policy concerns of the Workers’

Compensation Act, dismissing [the plaintiff’s] case was an abuse of discretion”

“because it effectively terminate[d the plaintiff’s] exclusive remedy when other

less-permanent sanctions, such as civil contempt, were available to [the] Deputy

Commissioner.” Id.

      The sole issue on appeal is whether the Commission erred in dismissing

Lauziere’s claim with prejudice. The Commission has “inherent judicial authority to

dismiss a claim with or without prejudice for failure to prosecute,” and this reflects



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                                   Opinion of the Court



its “power to efficiently administer the Workers’ Compensation Act.” Lee v. Roses,

162 N.C. App. 129, 131, 590 S.E.2d 404, 406 (2004). Under Rule 616(b) of the

Industrial Commission Rules,

             [u]pon notice and opportunity to be heard, any claim may
             be dismissed with or without prejudice by the Commission
             on its own motion or by motion of any party if the
             Commission finds that the party failed to prosecute or to
             comply with the rules in this Subchapter or any Order of
             the Commission.

11 N.C.A.C. 23A.0616(b) (2019).

      Neither the Workers’ Compensation Act nor the Commission’s Rules provide

much direction as to when a finding of failure to prosecute is proper or what types of

sanctions are appropriate under the circumstances. Lentz v. Phil’s Toy Store, 228

N.C. App. 416, 421, 747 S.E.2d 127, 131 (2013). As a result, we look to Civil Procedure

Rule 41(b) for guidance. Id. Rule 41(b) “allows a defendant to move for dismissal of

a case for failure of plaintiff to prosecute, and requires a determination that ‘plaintiff

or his attorney manifests an intent to thwart the progress of the action or engages in

some delaying tactic.’” Id. (internal marks and alterations omitted) (quoting Lee, 162

N.C. App. at 132, 590 S.E.2d at 407).           We have determined that, before the

Commission can dismiss with prejudice a workers’ compensation claim for failure to

prosecute under Rule 616(b), the Commission “must address . . . three factors in its

order.” Lee, 162 N.C. App. at 132-33, 590 S.E.2d at 407.




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                                   Opinion of the Court



      First, “whether the plaintiff acted in a manner which deliberately or

unreasonably delayed the matter.” Id. at 133, 590 S.E.2d at 407 (quoting Wilder v.

Wilder, 146 N.C. App. 574, 578, 553 S.E.2d 425, 428 (2001)). Second, “the amount of

prejudice, if any, to the defendant caused by the plaintiff’s failure to prosecute.” Id.

(internal alterations omitted). Third, “the reason, if one exists, that sanctions short

of dismissal would not suffice.” Id. at 133, 590 S.E.2d at 407. The Commission’s

“findings of fact on these factors are conclusive on appeal if there is competent

evidence to support its findings.” Lentz, 228 N.C. App. at 421, 747 S.E.2d at 131-32.

      “Our courts,” however, “have stated that dismissal with prejudice is the most

severe sanction available to the court in a civil case, and thus, it should not be readily

granted.” Lee, 162 N.C. App. at 132, 590 S.E.2d at 407. “This principle applies

equally to the dismissal of a workers’ compensation claim at the Industrial

Commission since prosecution pursuant to the Workers’ Compensation Act is an

injured worker’s exclusive remedy.” Id. “Accordingly, the Full Commission err[s] as

a matter of law when it . . . affirm[s] the deputy commissioner’s order dismissing

plaintiff’s claim with prejudice for failure to prosecute without . . . the necessary

findings of fact and conclusions of law to support its order[,]” Id. at 133, 590 S.E.2d

at 408, and is an abuse of the Commission’s discretion. See Matthews, 132 N.C. App.

at 17, 510 S.E.2d at 393.




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                                   Opinion of the Court



      Further, a finding of the Commission based on legally incompetent evidence is

not conclusive. Penland v. Bird Coal Co., 246 N.C. 26, 30, 97 S.E.2d 432, 436 (1957);

see Ballenger v. Burris Indus., Inc., 66 N.C. App. 556, 568, 311 S.E.2d 881, 888 (1984)

(providing that we can declare when proffered evidence “does not constitute any

sufficient competent evidence on which to base a denial of” a workers’ compensation

claim). Upon our review of the Record—a record devoid of an evidentiary hearing—

the Commission erred on three grounds due to a lack of competent evidence.

      To begin, Finding of Fact 24 is unsupported by evidence. The finding states,

             [b]ased upon a preponderance of the evidence in view of the
             entire record, the Full Commission finds that Defendants
             have been materially prejudiced by [Lauziere]’s failure to
             respond to discovery or otherwise prosecute her claim for a
             year. [Lauziere] has thereby delayed adjudication of this
             matter and deprived Defendants of any meaningful
             opportunity to investigate or present defenses to
             [Lauziere]’s claim or to direct care if the claim is ultimately
             determined on the merits and found to be compensable.

(Emphasis added). No competent evidence in the Record supports that Defendants

have been materially prejudiced. For instance, Defendants proffered nothing to show

how the delay impaired their ability to locate witnesses, medical records, treating

physicians, or any other data. As to the argument Defendants were prejudiced by

being unable to direct medical care, we have “long held that the right to direct medical

treatment is triggered only when the employer has accepted the claim as

compensable.” Yingling v. Bank of Am., 225 N.C. App. 820, 838, 741 S.E.2d 395, 407

(2013) (internal marks omitted). This principle still applies when an employer denies

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                                 Opinion of the Court



a claim and then seeks dismissal with prejudice for failure to prosecute; an employer

cannot with one breath deny a worker’s compensation claim and with the next breath

cry prejudice. See id. at 839, 741 S.E.2d at 407; Kanipe v. Lane Upholstery, 141 N.C.

App. 620, 624, 540 S.E.2d 785, 788 (2000) (“But until the employer accepts the

obligations of its duty, i.e., paying for medical treatment, it should not enjoy the

benefits of its right, i.e., directing how that treatment is to be carried out.”).

Defendants denied Lauziere’s claim and had no right to direct her medical care.

Finding of Fact 24 is not supported by evidence.

      Next, Finding of Fact 25 also lacks evidentiary support. The finding states,

             [b]ased upon a preponderance of the evidence in view of the
             entire record, the Full Commission finds that Defendants
             have borne substantial monetary expenses as a result of
             [Lauziere]’s behavior in this matter. Among other things,
             Defendants have been forced to maintain an open file and
             prepare and travel for anticipated litigation, including
             mediation and scheduled hearings.

(Emphasis added). Defendants may have maintained an open file as well as prepared

and traveled for anticipated litigation. But no evidence in the Record provides how

much money Defendants expended, how often they traveled, or how far they traveled,

let alone the unsupported conclusion Defendants bore “substantial” expenses. We do

not assume mere motions, orders, correspondence, or hearing transcripts can show

prejudice. These documents, standing alone, do not shed light on how much time or

money was expended. Contrast this with Lentz where “[c]ompetent evidence in the

record support[ed] the Commission’s finding that the file in plaintiff’s case [was]

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                                          Opinion of the Court



‘replete with motions, correspondence, and hearing transcripts documenting the time

and effort defendants have expended related to defending plaintiff’s claim and

preparing for multiple hearings.’” Lentz, 228 N.C. App. at 424, 747 S.E.2d at 133

(emphasis added). The Record here, by contrast, is bereft of anything “documenting

the time and effort” Defendants expended over defending Lauziere’s claim. Id. No

evidence is referenced competent to provide an inference for the amounts of time,

effort, or money Defendants expended. Thus, Finding of Fact 25 is also unsupported

by evidence.

        Finally, the Commission considered the sanctions prong of the Lee test and

listed another finding1 in Conclusion of Law 5:

                A sanction short of dismissal with prejudice will not suffice
                in this case because no other sanction is appropriate given
                that: (1) [Lauziere] delays and continues to delay this
                matter, (2) Defendants’ ability to litigate and defend this
                claim has been irrevocably degraded by [Lauziere]’s actions
                and inactions, and (3) monetary damages incurred by
                Defendants as a result of [Lauziere]’s conduct could not be
                recouped by Defendants even if ordered by the Commission.
                Given the foregoing, sanctions short of dismissal could not
                provide appropriate or proportional relief to Defendants.




        1“Whether a statement is an ultimate fact or a conclusion of law depends upon whether it is
reached by natural reasoning or by an application of fixed rules of law.” Brown v. Charlotte-
Mecklenburg Bd. of Ed., 269 N.C. 667, 670, 153 S.E.2d 335, 338 (1967). Although the Commission
designated this statement a conclusion of law, it is a finding of fact. See Martinez v. W. Carolina Univ.,
49 N.C. App. 234, 239, 271 S.E.2d 91, 94 (1980) (“[T]he designations ‘Finding of Fact’ or ‘Conclusion of
Law’ by the commission” are not conclusive).

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                                  Opinion of the Court



(Emphasis added). This suggests the Commission had evidence that Lauziere, if so

ordered, could not pay a monetary sanction. Such evidence does not exist in the

Record. At best, the Commission found that “Defendants have borne substantial

monetary expenses as a result of [Lauziere’s] behavior in this matter.” This may be

so, but neither this finding nor any evidence in the Record concerns Lauziere’s ability

to pay a monetary sanction or how costs to Defendants are otherwise un-recoupable.

Thus, the finding that Defendants’ “monetary damages . . . could not be recouped” is

unsupported by the evidence in the Record.

      Additionally, there is no finding of fact, nor any competent evidence,

supporting the contention that “Defendants’ ability to litigate and defend this claim

has been irrevocably degraded.” This claim has not yet been reached on the merits,

and as outlined above there is no indication that Defendants cannot fully investigate

and defend this claim with the same ferocity that they otherwise would have upon

timely receiving the requested discovery. They seemingly will have the same access

to evidence, witnesses, and medical records they otherwise would have had if

discovery had been timely provided.          The only irrevocably lost opportunity

Defendants have suffered that is discussed by the Commission is the potential “to

direct care if the claim is ultimately determined on the merits and found to be

compensable.” However, as discussed above, this is not a loss that could be properly

considered by the Commission as an employer has no right to direct care until they



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                                   Opinion of the Court



accept the underlying claim as compensable. Even monetary losses in the form of

legal expenses as a result of Plaintiff’s delay seemingly could be recouped, as there is

no evidence suggesting otherwise. As a result, there are no findings of fact to support

the conclusion that the harm done to Defendants by Lauziere’s delay was irrevocable.

      Ultimately, this means the only finding the Commission used to support its

conclusion that “[a] sanction short of dismissal with prejudice will not suffice” was

“[Lauziere] delays and continues to delay this matter[.]” This finding alone does not

support the conclusion that other sanctions would not have sufficed. The test in Lee

requires the analysis of all three factors, the first of which is there was an

unreasonable delay, and the third of which is sanctions short of dismissal with

prejudice are inadequate. If the Commission could satisfy this third factor simply by

stating that the Plaintiff has delayed the matter, essentially restating a part of the

first factor of the Lee test, then the third factor would be rendered mere surplusage.

      “[T]he Commission’s findings are conclusory and not supported by competent

evidence.” See Shaw v. United Parcel Serv., 116 N.C. App. 598, 602, 449 S.E.2d 50,

53 (1994), aff’d, 342 N.C. 189, 463 S.E.2d 78 (1995). No competent evidence in the

Record implies that Defendants were prejudiced by the delay, were wrongfully

deprived of a right to direct care, were burdened with substantial monetary expenses

or were unable to recoup the same.




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                                   Opinion of the Court



      To prevent future inefficiency, delay, or harm to the parties, we address the

utility of available sanctions under the Workers’ Compensation Act in these

circumstances. Failure to comply with an order to compel is not the same as failure

to prosecute, and evidence applicable to the former may be inapplicable to the latter.

Without the necessary evidence or findings, other less-permanent sanctions remained

available, such as civil contempt. See N.C.G.S. § 97-80(g) (2019) (“The Commission

or any member or deputy thereof shall have the same power as a judicial officer . . .

to hold a person in civil contempt . . . for failure to comply with an order of the

Commission, Commission member, or deputy”); see, e.g., In re Hayes, 200 N.C. 133,

141, 156 S.E. 791, 795 (1931) (discussing “the power to adjudge [a] witness in

contempt and to punish for such contempt”). This is not to say that an order for civil

contempt is needed before the Commission can dismiss with prejudice for failure to

prosecute.   However, “in light of the policy behind North Carolina’s Workers’

Compensation Act, to provide a swift and certain remedy to an injured worker[,] to

ensure a limited and determinate liability for employers[,]” and to furnish Lauziere’s

“exclusive remedy,” id. at 16-17, 510 S.E.2d at 393, the Commission, when applying

the Lee test, must ensure its conclusions are justified by the findings of fact and those

findings of fact are supported by competent evidence. See Chambers, 360 N.C. at 611-

12, 636 S.E.2d at 555 (declaring that “[i]f the conclusions of the Commission are based

upon a deficiency of evidence or misapprehension of the law, the case should be



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                                   Opinion of the Court



remanded so that the evidence may be considered in its true legal light”) (internal

marks, alterations, and citations omitted).

                                   CONCLUSION

      “[T]he Full Commission erred as a matter of law when it . . . affirmed the

deputy commissioner’s order dismissing plaintiff’s claim with prejudice for failure to

prosecute without . . . the necessary findings of fact and conclusions of law to support

its order.” Lee, 162 N.C. App. at 133, 590 S.E.2d at 408. “The order of dismissal is

reversed and this cause remanded to the Industrial Commission for proceedings

consistent with this opinion.” Id. at 133-34, 590 S.E.2d at 408.

      REVERSED AND REMANDED.

      Judge DILLON concurs in part, dissents in part, with separate opinion.

      Judge HAMPSON concurs.




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 No. COA18-982 – Lauziere v. Stanley Martin Cmtys, LLC


        DILLON, Judge, concurring in part and dissenting in part.


        The Full Commission has entered an order dismissing Plaintiff’s workers’

compensation claim. The majority concludes that the Full Commission’s order must

be reversed and remanded because several of the Commission’s findings are not

supported by the evidence and that the remaining findings do not support an order

of dismissal. I conclude, however, that the appropriate mandate is for the Full

Commission’s order to be vacated and remanded for further proceedings.2 I believe

that it would not be an abuse of discretion for the Full Commission to have ordered

the dismissal based on its findings that I conclude are supported by the evidence.

(The majority concludes that several of the Commission’s findings are not supported

by the evidence. I, however, agree with the majority only with respect to some of

these findings.)

        In any event, I do not believe it would be appropriate for our Court to simply

affirm the Full Commission based on the supported findings because we cannot know


        2 The majority’s mandate is “reversed and remanded.” “Reverse” and “vacate” are often used
interchangeably by appellate judges. There is, indeed, some gray areas as to when “reverse” is the
appropriate mandate and when “vacate” may be more appropriate. To me, “vacate” generally suggests
(absent any clearer instructions in the opinion) that an order is being eliminated but not being replaced
with a contrary order, so that “vacate and remand” generally suggests that the trial court is to
reconsider the matter, but still could reach the same result. “Reverse,” though, suggests that the trial
court got it wrong, so that “reverse and remanded” suggests that the trial court either enter a new
order as directed or reconsider the matter, but may not reach the same result. Admittedly, I may not
have always been consistent in my usage of these terms.
        In any event, in the present case, I conclude that the trial court’s order must be vacated, so
that on remand the trial court could still reach the same result, dismissal, as I believe that there are
other findings in the order to support dismissal. The majority, though, states that the trial court’s
order to dismiss was incorrect “as a matter of law” because it failed to make “the necessary findings of
fact and conclusions of law to support its order.”
                     LAUZIERE V. STANLEY MARTIN CMTYS, LLC

                    DILLON J., concurring in part and dissenting in part



how the Commission would have exercised its discretion absent the unsupported

findings. Therefore, my vote is to vacate and remand, such that the sanction of

dismissal may still be considered by the Commission on remand.

                                     1. Background

      The findings, supported by the evidence, tend to show as follows:

      Plaintiff, a residential real estate broker, seeks workers’ compensation

benefits, alleging that in September 2015, she suffered injuries to her back, neck,

bilateral knees, and hips while trying to manually close a garage door at a home.

      Plaintiff, however, suffered injuries prior to the garage door incident on a

number of occasions. For instance, in June 2015, just three months prior to the

garage door incident, Plaintiff was injured in an automobile accident, for which she

received medical treatment.        Also, Plaintiff had previously sought workers’

compensation benefits for back and knee injuries, unrelated to her present claim.

      Defendants initially denied liability for Plaintiff’s September 2015 injuries,

pending their investigation of the matter. As part of their investigation, Defendants

sought discovery from Plaintiff of her medical history to determine whether, and to

what extent, Plaintiff was injured by the garage door incident. However, Plaintiff

has repeatedly failed to fully comply with Defendants’ discovery requests, even

though she has been compelled to do so by the Commission.




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                     DILLON J., concurring in part and dissenting in part



      In the meantime, Plaintiff has undergone medical treatment at her own

direction, which included major back surgery. Further, Plaintiff took no action to

prosecute this matter for over a year, while Defendants continued to seek discovery

of Plaintiff’s medical history.     Accordingly, in June 2017, Defendants moved to

dismiss Plaintiff’s claim.

      In September 2017, the Deputy Commission dismissed Plaintiff’s claim.

Plaintiff appealed to the Full Commission. In its 2018 Opinion and Award, the Full

Commission, agreeing with the Deputy Commissioner, ordered the matter dismissed

with prejudice.

                                        II. Analysis

      The majority recognizes that the Full Commission, in the exercise of its

discretion, may dismiss a matter where the Plaintiff engages in delay tactics.

      The majority also recognizes that the Commission must consider three factors

before dismissing a matter, citing Lee v. Roses, 162 N.C. App. 129, 590 S.E.2d 404

(2004) and Lentz v. Phil’s Toy Store, 228 N.C. App. 416, 747 S.E.2d 127 (2013).

      First, the Full Commission must consider “whether the plaintiff acted in a

manner which deliberately or unreasonably delayed the matter[.]” Lee, 162 N.C. App.

at 133, 590 S.E.2d at 407. The majority is not contending that this prong was not

satisfied. Indeed, the Commission did consider this factor, determining that Plaintiff

had caused the “unreasonable delay[]” and that she continued to engage in the



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                     DILLON J., concurring in part and dissenting in part



“unreasonable delay” of adjudication of the matter. And this determination could

certainly be inferred from the findings and the evidence.                   For instance, the

Commission found that Plaintiff repeatedly failed to fully comply with the discovery

requests, even after being ordered by the Commission to do so. As found by the

Commission, Plaintiff admitted to being lax in responding to the discovery requests

and that she did nothing for over a year to prosecute her claim, all the while seeking

medical treatment at her own direction.

      Second, under Lee, the Commission must consider “the amount of prejudice, if

any, to the defendant [caused by the plaintiff’s failure to prosecute][.]” Id. at 133, 590

S.E.2d at 407. The order shows that the Commission considered this factor. The

majority contends that certain findings in the order supporting the Commission’s

findings as to this prong are not supported by the evidence. I disagree.

      The Commission expressly found, in Finding 24, that Defendants were

“materially prejudiced by Plaintiff’s failure to respond to discovery and otherwise

prosecute her claim for a year” in that Plaintiff’s actions deprived Defendants of “any

meaningful opportunity to investigate . . . or to direct [Plaintiff’s] care[.]”          The

majority, though, states that there is no evidence that Defendants were materially

prejudiced, correctly noting that an employer’s ability to direct an employee’s medical

care is triggered only after the employer has accepted liability.




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                     DILLON J., concurring in part and dissenting in part



       However, this misses the point that the right of an employer who has initially

denied liability to direct care can still be subsequently triggered once the employer

accepts liability. See Kanipe v. Lane Upholstery, 141 N.C. App. 620, 624, 540 S.E.2d

785, 788 (2000). Here, the Commission essentially found that Plaintiff’s improper

conduct caused Defendants to lose its opportunity to make an informed decision to

trigger their right to direct care.

       Certainly, an employer should not be required to accept liability right away

before it has investigated an alleged accident. For example, the General Assembly

has provided in N.C. Gen. Stat. § 97-27(a) that an employer has the right to require

its employee to submit to an examination, the purpose of which, according to our

Court, “is to enable the employer to ascertain whether the injury is work-related or

not and thus whether the claim is indeed compensable.” Id. at 624, 540 S.E.2d at

788. In the same way, an employer has the right to discoverable medical records to

ascertain whether an injury, in fact, was the result of a work-place accident.

       To this end, an employee is required to provide her employer with the

discoverable information necessary for the employer to make an informed decision

whether to accept liability and exercise its right to direct care. This obligation is

similar to an employee’s statutory obligation to provide timely notice of her accident,

the purpose of which (as described by our Supreme Court) “allows the employer to

provide immediate medical diagnosis and treatment with a view to minimiz[e] the



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                    DILLON J., concurring in part and dissenting in part



seriousness of the injury, and it facilitates the earliest possible investigation of the

circumstances surrounding the injury.” See, e.g., Booker v. Duke Med. Ctr., 297 N.C.

458, 481, 256 S.E.2d 189, 204 (1979). Indeed, our Court has recognized in such

situations that “[p]ossible prejudice occurs where the employer is not able to provide

immediate medical diagnosis and treatment with a view to minimiz[e] the

seriousness of the injury and where the employer is unable to sufficiently investigate

the incident causing the injury.” Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 173,

573 S.E.2d 703, 706 (2002) (emphasis added).

      Here, given Plaintiff suffered prior injuries and given the benign nature of the

accident (closing a garage door) as the cause of Plaintiff’s extensive injuries, it was

certainly reasonable for Plaintiff’s employer to require access to her discoverable

medical records before accepting liability for her claimed new injuries. Plaintiff,

though, thwarted Defendants’ ability to investigate by withholding her medical

records for years, all the while directing her own care. If those records demonstrate

that Plaintiff did not suffer any further injury due to the garage door incident, then

the dismissal by the Commission is of no harm to Plaintiff, as she would lose anyway.

However, if the records are, indeed, favorable to Plaintiff’s case, then Defendants

have lost the opportunity to accept liability based on a knowledge of those records,

and to direct Plaintiff’s care these past several years.




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                    DILLON J., concurring in part and dissenting in part



      Further, I disagree with the majority that Finding 25, supporting the second

Lee factor is not supported by the evidence. Specifically, the Commission found that

Defendants had “borne substantial monetary expense” pursuing Plaintiff’s medical

records. Admittedly, as the majority points out, there is no evidence in the record as

to the precise amount of money or time Defendants actually spent chasing discovery

for two years. However, the Commission made no finding as to the precise money or

time spent. What the Commission did find – that Defendants spent some unknown

amount of resources that was “substantial” – can be inferred from the evidence. For

instance, there is evidence that Defendants’ attorneys had to prepare a second set of

discovery requests when Plaintiff’s responses to the first set were incomplete;

Defendants’ attorneys had to seek (successfully after a hearing on the matter) an

order compelling Plaintiff to fully comply with the discovery request; and after

Plaintiff continued directing her own medical treatment without prosecuting her

claim for over a year and without complying with the Commission’s order to compel,

Defendant’s attorneys sought a dismissal, first before the Deputy Commissioner, and

then, after preparing a brief for attending a hearing, before the Full Commission.

      Finding 25 is similar to a finding made in Lentz sustained by our Court in

affirming the Commission’s order dismissing the claim of the plaintiff in that case.

In Lentz, the Commission found that “Plaintiff’s failure to prosecute this claim has

resulted in prejudice to defendants, who have expended considerable time and



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                    DILLON J., concurring in part and dissenting in part



resources attempting to defend the claim. [Defendants] have repeatedly prepared for

hearing and appeared at hearings with witnesses, and plaintiff has failed to appear,

even when ordered to appear.” 228 N.C. App. at 423, 747 S.E.2d at 132.

      I have reviewed the Lentz record on appeal, and I found nothing in that record

showing the exact amount of time or money the defendants spent. The Commission’s

finding that the defendants expended “considerable” time and resources, though, was

sustained by our Court:     “On this record, we determine that the Commission’s

findings of fact were supported by competent evidence and its conclusions of law were

supported by its findings of fact.” Id. at 423, 747 S.E.2d at 132.

      I see no difference between “considerable,” as used by the Commission in Lentz,

and “substantial,” as used by the Commission here. Accordingly, I disagree with the

majority and conclude that the record supports Finding 25.

      Under the third Lee prong, the Full Commission must consider “the reason, if

one exists, that sanctions short of dismissal would not suffice.” Lee, 162 N.C. App. at

133, 590 S.E.2d at 407. Here, the Full Commission expressly considered this factor.

It determined that lesser sanctions would not suffice, citing three separate reasons:

(1) Plaintiff delayed in prosecuting her claim for over a year; (2) Defendants’ ability

to litigate and defend the claim was “irrevocably degraded” by Plaintiff’s delay and

by her failure to fully comply with discovery; and (3) Defendants had incurred




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                    DILLON J., concurring in part and dissenting in part



litigation expenses due to Plaintiff’s conduct Defendants could never recoup from

Plaintiff were Plaintiff ordered to pay Defendants for these expenses.

      I disagree with the majority’s conclusion that there is no evidence that

Defendants’ ability to litigate and defend has been “irrevocably degraded,” as it can

be inferred from the record that Plaintiff has undergone extensive treatment without

Defendants’ direction and that Plaintiff has delayed the matter for the purpose of

completing her treatment before having to reengage with Defendants in this matter.

      I agree, however, with the majority that there is no evidence regarding

Plaintiff’s inability to pay Defendants’ expenses if ordered to do so. However, in my

view, it would not be an abuse of discretion on remand for the Commission to

otherwise determine that lesser sanctions would still be inappropriate based on the

Commission’s other findings.

                                     III. Conclusion

      I may not have made all of the findings regarding Plaintiff’s conduct, as made

by the Commission or have exercised discretion in the same way. But, here, the

Commission is the factfinder and is empowered with discretion to order a dismissal.

Such order should be affirmed where it cannot be said that the Commission abused

its discretion when its decision is supported by the findings and evidence.

      But, here, not all of the Commission’s findings are supported by the evidence.

I do conclude, however, that the remaining findings are sufficient to support a



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                    DILLON J., concurring in part and dissenting in part



dismissal in the exercise of discretion.         However, I cannot conclude that the

Commission would reach the same result based on the remaining findings. Therefore,

my vote is to vacate the dismissal order and remand the matter for further

proceedings and that, on remand, the Commission, in its discretion, may order

dismissal or order lesser sanctions.




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