                               NO. COA13-1345

                    NORTH CAROLINA COURT OF APPEALS

                            Filed: 15 July 2014


CARL H. POOLE,
     Plaintiff,

    v.                                   North Carolina Industrial
                                         Commission
                                         I.C. No. 239480
UNIVERSITY OF NORTH CAROLINA,
CHAPEL HILL,
     Defendant.


    Appeal    by   defendant   from    opinion   and    award    entered   27

August 2013 by the North Carolina Industrial Commission.               Heard

in the Court of Appeals 8 April 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Karissa J. Davan, for defendant-appellant.

    The Law Offices of Martin J. Horn, PLLC, by Martin J. Horn,
    for plaintiff-appellee.


    BRYANT, Judge.


    Where    plaintiff’s    declaration    of    willingness     to   resume

vocational   rehabilitation    and    evidence   in    support   thereof   is

deemed credible by the Industrial Commission, such a finding

properly supports the correct legal standard and will not be

disturbed on appeal.       The Industrial Commission did not err in

awarding plaintiff continued medical treatment with a doctor not
                                             -2-
authorized to accept workers’ compensation patients where UNC

had   acknowledged        and    already       accepted         plaintiff’s      change   in

medical providers.

      On   23     April    1992,    plaintiff          Carl      H.   Poole    suffered   a

compensable injury to his lower back while moving tables for his

employer,       the    University       of     North    Carolina        at    Chapel    Hill

(“UNC”).    On     9    May     1992,    UNC    filed       a    Form   19,    “Report    of

Employee’s Injury or Occupational Disease,” and on 5 June a Form

21,   “Agreement        for     Compensation          for       Disability,”     regarding

plaintiff’s       injury.           Under       the     North         Carolina    Workers’

Compensation Act, UNC was to provide plaintiff with temporary

total disability payments, medical care, and other benefits such

as vocational rehabilitation relating to plaintiff’s lower back

injury.

      On 28 April 1998, UNC filed a Form 24, “Application to

Terminate    or       Suspend    Payment       of   Compensation,”           alleging   that

plaintiff had failed to cooperate with vocational rehabilitation

services.       UNC’s Form 24 was granted by order on 10 July 1998,

suspending        plaintiff’s           temporary           disability        compensation

payments “until plaintiff makes a proper showing that he is

willing to comply with reasonable rehabilitation efforts.”
                                                  -3-
       On 15 July 2005, plaintiff filed a Form 18 seeking pain

management        treatment          which       UNC    accepted.           On   25   May     2007,

plaintiff filed a Form 33, “Request for Hearing,” alleging that

he had an ongoing disability and change in his condition.                                         A

Deputy Commissioner dismissed plaintiff’s claim with prejudice

on   17    November          2010,    concluding         that      plaintiff’s        failure    to

bring      his        claim    within        a    reasonable            period   of    time     had

prejudiced UNC as a result.

       On 18 January 2012, the Full Commission (“the Commission”)

re-opened plaintiff’s case and remanded it for a new evidentiary

hearing before a Deputy Commissioner, which was held on 30 April

2012.      In its award and order filed 27 August 2013, the Full

Commission reversed the ruling of the Deputy Commissioner and

ordered         UNC     to    reinstate          plaintiff’s            temporary     disability

compensation payments.                UNC appeals.

                               ______________________________

       UNC raises two issues on appeal: whether the Commission (I)

applied an incorrect legal standard; and (II) erred in finding

that      one    of     plaintiff’s      doctors             was   an    authorized     treating

physician.

                                                        I.
                                               -4-
    UNC        contends      the    Commission           applied     an    incorrect    legal

standard in determining that plaintiff was entitled to temporary

total disability after 8 May 2008.                       We disagree.

    "Appellate             review    of        an    award     from        the     Industrial

Commission is generally limited to two issues: (1) whether the

findings of fact are supported by competent evidence, and (2)

whether the conclusions of law are justified by the findings of

fact."     Starr v. Gaston Cnty. Bd. of Educ., 191 N.C. App. 301,

304, 663 S.E.2d 322, 325 (2008) (citations omitted).                                    "Where

there     is        competent      evidence         to     support        the    Commission's

findings, they are binding on appeal even in light of evidence

to support contrary findings."                  Id. at 304—05, 663 S.E.2d at 325

(citation omitted).             "The Commission's conclusions of law are

reviewed de novo."            Id. at 305, 663 S.E.2d at 325.

    UNC argues that the Commission applied an incorrect legal

standard “by allowing [p]laintiff to merely assert a present

willingness to comply with vocational rehabilitation.”                                  North

Carolina       General       Statutes,     section         97-25,    holds       that   “[t]he

refusal    of        the   employee       to    accept       any     medical,      hospital,

surgical       or    other    treatment        or    rehabilitative         procedure    when

ordered by the Industrial Commission shall bar said employee

from further compensation until such refusal ceases . . . .”
                                            -5-
N.C. Gen. Stat. § 97-25 (1992).1                   “G.S. 97-25 is clear in its

mandate    that      a    claimant    who     refuses       to    cooperate      with    a

rehabilitative procedure is only barred from receiving further

compensation "until such refusal ceases . . . ."                           Sanhueza v.

Liberty Steel Erectors, 122 N.C. App. 603, 608, 471 S.E.2d 92,

95     (1991)     (holding       that       where     the        plaintiff’s       weekly

compensation benefits were suspended pursuant to N.C.G.S. § 97-

25, the fact remained “that plaintiff may again be entitled to

weekly compensation benefits upon a proper showing by plaintiff

that he is willing to cooperate with defendants’ rehabilitative

efforts”).

       The Commission found as fact that plaintiff’s compensation

payments     were        suspended,     effective      18    March       1998,     “until

plaintiff makes a proper showing that he is willing to comply

with reasonable rehabilitation efforts.”                         The Commission also

found   that    although       plaintiff’s        doctors   felt       plaintiff    would

never be able to return to work due to his injuries, plaintiff’s

management      of       his   pain   and     depression         had    improved,       and

vocational rehabilitation would have “proactive benefits” for

him.    The Commission then found that:

1
  As plaintiff’s claim arose in                   1992,     plaintiff’s claim for
continuing medical compensation                    must     be considered under
N.C.G.S. § 97-25 (1992).
                                         -6-
             [b]ased   upon   a   preponderance   of  the
             evidence,   Plaintiff’s  testimony   at  the
             hearing before Deputy Commissioner Ledford
             on May 8, 2008 that if there was employment
             available   within   his   restrictions  and
             physical limitations, he would be willing to
             cooperate with pursuing employment at that
             time, including attending job fairs and
             vocational rehabilitation is found to be
             credible and constituted a proper showing
             that he is willing to comply with reasonable
             rehabilitation efforts.

Finally, the Commission found as fact that:

             [b]ased upon a preponderance of the evidence
             in view of the entire record, the Full
             Commission finds that Plaintiff’s suspension
             of compensation for failure to cooperate
             with   “reasonable  rehabilitation   efforts”
             ended as of May 8, 2008 and compensation
             should have been reinstated as of May 8,
             2008 as [UNC] had notice he was willing to
             cooperate and [UNC] has not proven that he
             was no longer disabled on as of May 8, 2008.

    UNC      contends    the     Commission    applied   an   incorrect      legal

standard, stating that allowing a plaintiff to assert a present

willingness     to      comply    with    vocational     rehabilitation       was

rejected in Powe v. Centerpoint Human Servs. (Powe I), 215 N.C.

App. 395, 715 S.E.2d 296 (2011), and that a test of constructive

refusal of suitable employment must be applied.                 Id. at 405—06,

715 S.E.2d at 303—04.

    In Powe, both the plaintiff and the defendant appealed an

order   of    the    Industrial      Commission    which      found   that     the
                                         -7-
plaintiff     failed     to   “fully          comply”   with     the    defendant’s

vocational rehabilitation services.                This Court found that the

legal standard applied by the Commission was incorrect, as the

Commission     needed    to   determine          the    extent    to     which      the

plaintiff, who was participating in some but not all vocational

rehabilitation services, failed to “fully comply.”                      Id. at 406,

715 S.E.2d at 304.        Noting that “declarations of a willingness

to comply are not necessarily sufficient if deemed not credible

by the Commission[,]” this Court remanded for the Commission to

make further findings of fact as to the plaintiff’s compliance.

Id. at 402, 715 S.E.2d at 301.

      Powe   is    not   applicable       to     the    instant    case.         Here,

plaintiff’s compensation was suspended beginning 18 March 1998

for   failure      “to   cooperate        with     vocational         rehabilitation

services,” with suspension to continue “until plaintiff makes a

proper showing that he is willing to comply with reasonable

rehabilitation efforts.”            The Commission found that plaintiff

resumed      his    willingness          to     cooperate      with      vocational

rehabilitation     services    on    8    May    2008   but    that    UNC   made    no

attempt to provide plaintiff with any vocational services after

24 March 1998.      UNC argues that plaintiff has not met his burden

of demonstrating he is truly willing to undertake vocational
                                        -8-
services.      Although “declarations of a willingness to comply are

not    necessarily    sufficient        if     deemed      not     credible      by    the

Commission[,]” here the Commission clearly noted in its findings

of fact that it reviewed the entire record before it and found

plaintiff’s      testimony       that   he     wished       to     begin   vocational

rehabilitation again to be credible.

       UNC further contends the Commission applied an incorrect

legal standard because UNC was prejudiced by plaintiff’s delay

in seeking the resumption of his benefits.                       UNC cites Daugherty

v. Cherry Hosp., 195 N.C. App. 97, 670 S.E.2d 915 (2009), in

support of its contention.

       In    Daugherty,    the    plaintiff        was    injured    in    1992       while

working as a nurse for the defendant.                    Id. at 98, 670 S.E.2d at

917.        In 1993, the Commission granted plaintiff’s claim for

physical injury, but denied her claim for psychological injury.

Id. at 99—100, 670 S.E.2d at 917—18.                      The plaintiff resigned

from her job with the defendant in 1994.                   Id. at 100, 670 S.E.2d

at 918.       In 2006, the plaintiff filed a Form 33, requesting a

hearing as to her denied claim                 for psychological injury                 and

seeking      retroactive    benefits         and    compensation.          Id.          The

Commission denied the plaintiff’s claim, holding that it was now

barred by laches.          Id. at 101, 670 S.E.2d at 918.                  On appeal,
                                                -9-
this Court reversed and remanded, finding that the doctrine of

laches was not applicable.                      Instead, the Commission needed to

make findings as to whether the plaintiff’s claim should be

dismissed,          pursuant       to     Rule       613,    for      failure     to     timely

prosecute.          Id. at 103—04, 670 S.E.2d at 919—20.

    Daugherty is not applicable to the instant case.                                      Here,

pursuant       to    N.C.    Gen.       Stat.    §    97-25,     plaintiff’s      claim      for

temporary           disability          compensation         was      suspended         pending

plaintiff’s          willingness          to     resume      cooperating         with     UNC’s

vocational      rehabilitation               services.       Unlike     the     plaintiff     in

Daugherty whose claim was denied thirteen years prior to her

seeking a hearing, here plaintiff’s claim was only suspended,

pending    a    finding       by    the       Commission      that     plaintiff       met   the

requirements needed to lift the suspension.

    We     are       mindful       of    the    length      of   time    about    which      UNC

complains.               However,       we     note    that      plaintiff’s       temporary

disability compensation was only suspended, not terminated, for

refusal to cooperate with vocational rehabilitation.                                   As such,

the Commission could order, at any time, the reinstatement of

plaintiff’s compensation upon a determination that plaintiff’s

willingness         to    cooperate       was    supported       by    credible    evidence.

See Powe v. Centerpoint Human Servs. (Powe II), ___ N.C. App.
                                              -10-
___, ___, 742 S.E.2d 218, 926 (affirming the decision of the

Commission       to    reinstate       the    plaintiff’s            temporary    disability

benefits,    despite          evidence       that    the    plaintiff      was     extremely

uncooperative with vocational rehabilitation efforts, for “even

though there may be evidence from which a fact finder could

determine    plaintiff          has    failed       to   cooperate        with    vocational

rehabilitation efforts, [this Court] must uphold the finding [of

the    Commission].”          (citation       omitted));        Bowen     v.     ABF    Freight

Sys.,    Inc.,    179     N.C.    App.       323,    331,      633    S.E.2d     854,    859—60

(2006)    (“Where        any    competent       evidence         exists    to     support       a

finding of the Commission, that finding is binding upon this

Court.     Thus, even though there may be evidence from which a

fact    finder        could    determine       [the]       plaintiff      has     failed        to

cooperate with vocational rehabilitation efforts, we must uphold

the     finding.”       (citation        omitted)).              Accordingly,           as     the

Commission’s          opinion    and     award       contained        findings     of        fact,

supported by competent evidence, which in turn supported its

legal    conclusions,          those    findings         are    conclusive       on     appeal.

UNC’s argument is overruled.

                                              II.

       UNC next argues that the Commission erred in finding that

one of plaintiff’s doctors was an authorized treating physician.
                                             -11-
Specifically,       UNC      contends    the    Commission        erred    in    awarding

plaintiff continued treatment with a doctor and at a facility

that     does    not    accept       workers’       compensation     patients.          We

disagree.

       UNC argues that the Commission erred in finding that Dr.

Clarke, one of plaintiff’s doctors, was an authorized treating

physician.        In its findings of fact, the Commission noted that

after    plaintiff’s         compensation      payments     were    suspended      on    18

March 1998, plaintiff sought treatment from Dr. Clarke for his

lower back injury beginning 22 September 1998.                        The Commission

then found as fact that “[b]ased upon [UNC]’s Claim Activity

Notes, [UNC] authorized Plaintiff to receive treatment from Dr.

Clarke     for     ‘facets      of     his    workers’      compensation         claim.’”

Additionally,          the    Commission       made     findings     of     fact     that

plaintiff continued to seek treatment from Dr. Clarke for lower

back pain, as well as heart disease, sleep apnea, incontinence,

depression, diabetes, and renal disease, through 4 August 2011,

when    Dr.     Tobin   took    over    plaintiff’s        care    from    Dr.    Clarke.

These findings of fact are supported by competent evidence in

the record.        Further, plaintiff filed a Form 18 seeking pain

management       treatment      with    UNC     on    15   July    2005,    which       UNC

accepted on 31 August and approved on 6 September.                        As such, the
                                           -12-
Commission’s      findings         that        UNC     acknowledged        and     accepted

plaintiff’s      change       in   medical      providers       to   Dr.   Clarke,    even

though Dr. Clarke was not an authorized medical provider, are

properly supported by competent evidence.                        See N.C.G.S. § 97-

25(d) (2013) (“The refusal of the employee to accept any medical

compensation when ordered by the Industrial Commission shall bar

the    employee       from     further     compensation         until      such     refusal

ceases[.]”).

       UNC further argues that the Commission erred because Dr.

Tobin, plaintiff’s current treating physician, is not authorized

to    accept    workers’       compensation          patients    and,      thus,    such   a

finding    by    the    Commission        violates       N.C.G.S.     §    97-25.       The

Commission made findings of fact, based on the evidence, that

UNC continued to provide plaintiff with medical treatment even

though    plaintiff          switched     to     a    non-authorized        doctor,     Dr.

Clarke,    on    22    September        1998,        after   plaintiff’s         authorized

medical providers discontinued his treatment on 15 June 1998.

Therefore, UNC accepted plaintiff’s claims for compensation for

medical treatment through Dr. Clarke, even though Dr. Clarke was

not authorized to accept workers’ compensation patients.                                The

Commission also found, and the record supports, that Dr. Tobin
                                -13-
succeeded   Dr.   Clarke   as   plaintiff’s   primary   physician.

Accordingly, UNC’s argument is overruled.

    Affirmed.

    Judge STEELMAN concurs.

    Judge HUNTER, Robert C., concurs in part and dissents in

    part.

    .
                                     NO. COA13-1345

                          NORTH CAROLINA COURT OF APPEALS

                                   Filed: 15 July 2014

CARL H. POOLE,
     Plaintiff,

       v.                                            North Carolina Industrial
                                                     Commission
                                                     I.C. No. 239480
UNIVERSITY OF NORTH CAROLINA
CHAPEL HILL,
     Defendant.


       HUNTER, Robert C., Judge, concurring in part and dissenting
       in part.


       I concur with the majority’s well-reasoned conclusions as

to    the    legal      standard     used   by    the     Full       Commission       and    the

finding          that   one   of   plaintiff’s         doctors       was   an       authorized

treating          physician.        However,      because        I    believe       the     Full

Commission was required to address defendant’s motion to dismiss

and    the       Deputy   Commissioner’s       dismissal      of      plaintiff’s          claim

pursuant to Workers’ Compensation Rule 613 in its opinion and

award,       I    respectfully      dissent      and    conclude       that     this      matter

should be remanded for further proceedings.

                                       Background

       Carl H. Poole (“plaintiff”) suffered a compensable work-

related injury on 23 April 1992.                       His employer, the University

of    North       Carolina    at   Chapel     Hill      (“UNC”),      filed     a    Form    21,
                                      - 2-


“Agreement      for    Compensation       for      Disability,”   and   provided

plaintiff    with      medical     care    and      vocational    rehabilitative

services.    Plaintiff’s benefits were suspended on 10 July 1998

for   failure    to    cooperate    with     the    vocational    rehabilitation

services    that      defendant    provided.         Compensation    was   to   be

suspended “until plaintiff makes a proper showing that he is

willing to comply with reasonable rehabilitation efforts.”

      On 15 May 2007, plaintiff filed a Form 33, “Request for

Hearing,” in which he requested compensation be reinstated and

alleged a “change in condition.”             On 7 May 2007, defendant filed

a motion to dismiss, alleging that plaintiff’s claim was barred

by laches and the statute of limitations.                    The parties were

heard on defendant’s motion to dismiss by Deputy Commissioner

Kim Ledford (“Deputy Commissioner Ledford”) on 8 May 2008.                      In

Deputy Commissioner Ledford’s opinion and award, the issues for

determination were stated as follows:

            1. Whether Plaintiff’s claim is barred by
            the Statute of Limitations, either pursuant
            to N.C. Gen. Stat. § 97-47 or other statute?

            2.   Whether  Plaintiff’s   claim   otherwise
            should be dismissed due to his failure to
            prosecute this claim in a timely manner per
            the Rules of the Industrial Commission?

            3. Whether Plaintiff’s claim for additional
            medical treatment is otherwise barred?
                                    - 3-


    After    hearing    testimony     from   the   parties   and   receiving

evidence,   Deputy     Commissioner    Ledford     entered   the   following

relevant findings of fact in her opinion and award:

            20. Following the suspension of benefits and
            the last payment of indemnity compensation
            in July 1998, Plaintiff did not seek
            reinstatement   of   indemnity   compensation
            until the filing of his Form 33 in May 2007,
            almost nine years after the entry of the
            Order of Special Deputy Commissioner Gillen.

            21. Plaintiff has shown no reason for his
            failure to appeal in a timely manner the
            Order of Special Deputy Commissioner Gillen,
            which suspended Plaintiff’s ongoing total
            disability   benefits.       Plaintiff   has
            otherwise shown no reason for his failure to
            seek reinstatement of indemnity compensation
            for almost nine years, an unreasonable
            delay.    Due to this unreasonable delay,
            Plaintiff has essentially abandoned and
            failed to prosecute his claim.

            22. This unreasonable delay has hindered the
            Defendant’s   ability  to   investigate   the
            matter. The delay has prevented Defendant
            from providing services otherwise intended
            to lessen Plaintiff’s period of disability.

            23. During the passage of the nine years
            since   the  suspension   of  his   benefits,
            Plaintiff’s physical condition has changed
            due primarily to health issues unrelated to
            his compensable injury, including his heart
            disease and kidney disease, which are now
            his primary limiting health conditions.

            24. The Defendant has been prejudiced by
            Plaintiff’s failure to pursue this matter in
            a timely manner.      Based upon Plaintiff’s
            unreasonable   delay,    and  the  resulting
            prejudice to Defendant, sanctions short of
                                 - 4-


         dismissal of the claim will not suffice.

    Pursuant   to   these   findings,   Deputy   Commissioner   Ledford

entered the following conclusions of law:

         8. Pursuant to Rule 613 of the North
         Carolina   Industrial   Commission  Workers’
         Compensation Rules, “Upon proper notice and
         an opportunity to be heard, any claim may be
         dismissed with or without prejudice by the
         Industrial Commission on its own motion or
         by motion of any party for failure to
         prosecute or to comply with these Rules or
         any Order of the Commission.”      Prior to
         dismissing a claim pursuant to this Rule,
         the Commission must find: (1) that Plaintiff
         acted in a manner which deliberately or
         unreasonably delayed the matter, (2) that
         Defendant was prejudiced by the Plaintiff’s
         delay or failure to prosecute, and (3) that
         sanctions short of dismissal would not
         suffice.   Lee v. Roses Stores, Inc., 162
         N.C. App. 129, 131, 590 S.E.2d 404, 406
         (2004).

         9. In this case, Plaintiff has been given
         proper notice and opportunity to be heard on
         the issue of dismissal of his case.       The
         greater weight of credible evidence shows
         that Plaintiff failed to prosecute his claim
         within a reasonable period of time.     Where
         Plaintiff waited nine years to pursue his
         claim for additional benefits, Defendant has
         been   prejudiced,  and   nothing  short   of
         dismissal would be fair and just.

Thus, Deputy Commissioner Ledford dismissed plaintiff’s claim

with prejudice on 17 November 2010.         Plaintiff appealed this

ruling to the Full Commission.
                                       - 5-


      By order of the Full Commission on 18 January 2012, the

case was reopened and remanded for a new evidentiary hearing.

The Full Commission found “old” files related to the case in the

Industrial Commission file room, including “correspondence from

the parties, Industrial Commission Orders, various forms filed

by the parties, form agreements, [and] medical records submitted

primarily as attachments to various motions dating from 1992 to

2007.”     Because Deputy Commissioner Ledford did not have access

to these files when she entered her opinion and award, the Full

Commission remanded the matter for a new Deputy Commissioner to

gather this evidence, order a transcript of the proceedings, and

forward the transcript and evidence to the Full Commission for

review and a determination.

      Deputy Commissioner James C. Gillen (“Deputy Commissioner

Gillen”)    presided     over    the   new    evidentiary      hearing.    On   13

February 2013, he entered an order transferring the requested

materials to the Full Commission but did not issue an opinion

and   award   on   the   substance     of     the   parties’    claims.    After

receiving the evidence and transcript from Deputy Commissioner

Gillen, the Full Commission entered its opinion and award on 27

August 2013, from which defendant appeals.                  In its opinion and

award, the Full Commission stated that it “reviewed the prior

Opinion    and   Award   based    upon   the    record   of     the   proceedings
                                         - 6-


before    Deputy      Commissioner       Ledford      and    Deputy     Commissioner

Gillen and the briefs, supplemental briefs and arguments of the

parties    before       the    Full     Commission.”             However,    the       Full

Commission’s opinion and award contained no findings of fact or

conclusions      of     law    relating        to   the     substance       of     Deputy

Commissioner Ledford’s dismissal of plaintiff’s claim pursuant

to Rule 613, the almost nine-year delay in the proceedings, or

the potential prejudice to defendant that may have resulted from

the    delay.       Rather,     the     Full    Commission        examined       the   new

evidence introduced before the Deputy Commissioner and concluded

that    plaintiff      had    carried    his    burden      of     demonstrating       his

willingness to cooperate with vocational rehabilitation.                            Thus,

it    ordered    that    plaintiff       was    entitled      to    temporary       total

disability benefits beginning 8 May 2008 and continuing until

further order of the Commission.                Defendant timely appealed from

the Full Commission’s opinion and award.

                                      Discussion

       On appeal, defendant argues that the Full Commission erred

by failing to dismiss plaintiff’s claim pursuant to Rule 613.

Because the Full Commission failed to address this contention in

its    opinion   and    award,    I   believe       that    the    matter    should     be

remanded for entry of findings of fact and conclusions of law on

this issue.
                                         - 7-


       The       Industrial        Commission      has      exclusive    original

jurisdiction over workers’ compensation proceedings.                     Thomason

v. Red Bird Cab Co., 235 N.C. 602, 604, 70 S.E.2d 706, 708

(1952).        It is required to hear the evidence and file its award,

“together with a statement of the findings of fact, rulings of

law, and other matters pertinent to the questions at issue[.]”

N.C. Gen. Stat. § 97-84 (2013).                 “The reviewing court’s inquiry

is limited to two issues: whether the Commission’s findings of

fact     are     supported    by    competent      evidence    and   whether   the

Commission’s conclusions of law are justified by its findings of

fact.”       Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345

S.E.2d 374, 379 (1986).             The Commission’s findings of fact are

conclusive on appeal when supported by competent evidence even

though evidence exists that would support a contrary finding.

Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,

684 (1982).

       “[W]hen      the   transcript       and     record     before    the    full

Commission is insufficient to resolve all the issues, the full

Commission must conduct its own hearing or remand the matter for

further hearing.”         Crump v. Independence Nissan, 112 N.C. App.

587, 589, 436 S.E.2d 589, 592 (1993) (quotation marks omitted).

However, “[a]lthough the decision to take additional evidence is

one within its sound discretion, the full Commission has the
                                - 8-


duty and responsibility to decide all matters in controversy

between the parties[.]”   Id. (emphasis added); see also Payne v.

Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 501,

616 S.E.2d 356, 360 (2005) (“It is well established that the

full Commission has the duty and responsibility to decide all

matters in controversy between the parties, and, if necessary,

the full Commission must resolve matters in controversy even if

those matters were not addressed by the deputy commissioner.”

(citation and internal quotation marks omitted)).

    Here, after hearing the parties on defendant’s motion to

dismiss, Deputy Commissioner Ledford dismissed plaintiff’s claim

with prejudice pursuant to Workers’ Compensation Rule 613, which

provides that “[u]pon proper notice and an opportunity to be

heard, any claim may be dismissed with or without prejudice by

the Industrial Commission on its own motion or by motion of any

party for failure to prosecute or to comply with these Rules or

any Order of the Commission.”    4 N.C.A.C. 10A.0613(a)(3) (2013)

(emphasis added).   This Court has ruled that the Commission must

make the following relevant findings before dismissing a case

pursuant to Rule 613:

         (1) whether the plaintiff acted in a manner
         which deliberately or unreasonably delayed
         the matter; (2) the amount of prejudice, if
         any, to the defendant [caused by the
         plaintiff’s failure to prosecute]; and (3)
                                           - 9-


            the reason, if one exists, that sanctions
            short of dismissal would not suffice.

Lee v. Roses, 162 N.C. App. 129, 132-33, 590 S.E.2d 404, 407

(2004) (quoting Wilder v. Wilder, 146 N.C. App. 574, 578, 553

S.E.2d 425, 428 (2001)).

       Deputy     Commissioner          Ledford     found     as    fact      that:    (1)

“[p]laintiff has otherwise shown no reason for his failure to

seek    reinstatement       of    indemnity       compensation        for    almost    nine

years, an unreasonable delay”; (2) “[t]his unreasonable delay

has    hindered      the      Defendant’s         ability     to    investigate         the

matter[;]    [t]he      delay     has    prevented        Defendant    from    providing

services    otherwise       intended       to     lessen    Plaintiff’s       period     of

disability”;      and      (3)    “[b]ased       upon     Plaintiff’s       unreasonable

delay, and the resulting prejudice to Defendant, sanctions short

of    dismissal    of   the      claim   will     not     suffice.”         Thus,    Deputy

Commissioner      Ledford        entered     all     of     the    findings     of     fact

required by the Lee Court before dismissing plaintiff’s claim

with prejudice pursuant to Rule 613.

       However, the Full Commission’s opinion and award is devoid

of any factual findings or legal conclusions disposing of these

arguments.         Although       the     Full     Commission       stated      that     it

“reviewed the prior Opinion and Award based upon the record of

the proceedings before Deputy Commissioner Ledford[,]” the Full
                                               -10-


Commission failed to address the basis of Deputy Commissioner

Ledford’s ruling in her prior opinion and award—dismissal under

Rule    613.      The       Full   Commission         also    entered        no    findings    or

conclusions as to the delay in the proceedings, the potential

prejudice to defendant that may have resulted from the delay, or

the reasons for the delay—all of which were included in Deputy

Commissioner         Ledford’s          findings      of    fact      in    support     of    her

ruling.         As     is     made       clear       by    the     list      of    issues     for

determination          in    Deputy       Commissioner           Ledford’s         opinion     and

award, these contentions were raised by defendant in its motion

to     dismiss       and      were       “in        controversy”           throughout        these

proceedings.         Payne, 172 N.C. App. at 501, 616 S.E.2d at 360.

Thus,     because           the    Full        Commission         “has       the     duty     and

responsibility to decide all matters in controversy between the

parties,”       id.,    and       because      it    failed      to    address       the     legal

contentions       that        formed      the       basis    of       Deputy       Commissioner

Ledford’s opinion and award, I would remand this matter back to

the    Full     Commission         for    entry       of    appropriate           findings    and

conclusions determining that issue.

                                          Conclusion

       Because the Full Commission failed to enter findings of

fact    or     conclusions         of    law    regarding        defendant’s         motion     to

dismiss or Deputy Commissioner Ledford’s previous dismissal of
                              -11-


plaintiff’s claim pursuant to Workers’ Compensation Rule 613, I

respectfully dissent from the majority’s holding that the Full

Commission’s opinion and award adequately resolved all matters

in controversy between the parties.   Accordingly, I would remand

this matter to the Full Commission.
