An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                              NO. COA13-537
                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 21 January 2014


CLAUDE L. BARNES,
     Employee, Plaintiff,

      v.                                    North Carolina
                                            Industrial Commission
                                            I.C. No. W80523
HENDRICK AUTOMOTIVE,
     Employer,

      and

FEDERAL INSURANCE CO.,
     Carrier, Defendants.


      Appeal by Plaintiff from opinion and award filed 15 January

2013 by the North Carolina Industrial Commission. Heard in the

Court of Appeals 9 October 2013.


      Oxner Thomas & Permar, PLLC, by John R. Landry, Jr., for
      Plaintiff.

      Jones, Hewson       &   Woolard,    by   Lawrence    J.   Goldman,     for
      Defendants.


      STEPHENS, Judge.


                   Factual and Procedural Background
                                              -2-
       Plaintiff       Claude     Barnes       suffered          a   knee    injury      while

serving    in    the   Vietnam        War.    Before     20      April     2010,   the    knee

injury had not “really ever bothered [him] very much at all.” On

that   date,      however,      Plaintiff           stepped      between     two    fighting

employees at work. One of the employees hit Plaintiff, resulting

in further injury to his knee and an additional injury to his

shoulder.        Plaintiff       was        employed        by       Defendant      Hendrick

Automotive at the time. On 28 April 2010, Plaintiff saw Dr.

Christopher       J.    Barnes.         Dr.     Barnes        diagnosed        right      knee

osteoarthritis and noted that Plaintiff’s symptoms were likely

“an exacerbation of his preexisting arthrosis.”

       Plaintiff presented to Dr. Murray Seidel on 11 May 2010.

Dr. Seidel determined that Plaintiff had probably lost “full

extension of his knee for many years.” Seven days later, Dr.

Seidel recommended knee arthroplasty. Between his visits to Dr.

Seidel,    Plaintiff      also        met    with     Dr.     Bradley       Broussard.     Dr.

Broussard        diagnosed        “tricompartmental                  degenerative        joint

disease”    and    opined       that    Plaintiff’s         Vietnam      War     injury    was

“probably       aggravated”      by    his    workplace          injury.     Dr.   Broussard

advised that Plaintiff was “unable to work in any capacity until
                                            -3-
further       notice.”1       Defendants         authorized     and     paid   for     the

treatment provided in these examinations.

       On 18 May 2010, Dr. Seidel allowed Plaintiff to return to

work with the restrictions that he (1) not stand continuously

for eight to ten hours and (2) sit for at least twenty minutes

each hour. There was a dispute regarding Plaintiff’s ability to

work    for     Defendant-employer           under     these     restrictions,         and

Plaintiff thereupon filed a Form 33, requesting a hearing before

the North Carolina Industrial Commission (“the Commission”).

       By order of the Commission, the parties held a mediated

settlement conference on 22 July 2011. Plaintiff was represented

by   counsel        during    the    conference      and     executed    the   mediated

settlement agreement (“MSA”) as a result. Pursuant to the MSA,

Plaintiff      waived     his    right      to    further     workers’    compensation

benefits, including any right to reimbursement for expenses paid

by Plaintiff, in return for $15,000. Among other things, the

parties    agreed       to    “execute      all     necessary     [f]orms      and/or    a

standard      [c]ompromise          [s]ettlement     [a]greement        (“CSA”)2     which

complie[d] with [N.C. Gen. Stat. §] 97-17.” The CSA was to be

prepared       by     Defendants.         Defendants       submitted     the     CSA    to

Plaintiff’s         counsel     on    1   August     2011.    Sixteen     days     later,

1
   The record does not indicate that Plaintiff                           met   with    Dr.
Broussard again.
2
  A CSA is also known as a “clincher agreement.”
                                           -4-
Plaintiff’s counsel advised Defendants’ counsel that Plaintiff

refused to sign the CSA. As a result, Defendants filed a Form 33

requesting a hearing.

       The hearing was held on 7 November 2011. Afterward, the

deputy commissioner concluded that the MSA was unenforceable due

to failure to comply with N.C. Gen. Stat. § 97-17(b)(2) and

Industrial      Commission      Rule       502.      Accordingly,       the       deputy

commissioner declined to approve the MSA as a final settlement

agreement. Defendants appealed to the full Commission. On 15

January 2013, the Commission concluded that the MSA was a valid

and enforceable contract under section 97-17 and Rule 502. In

addition, the Commission concluded that the MSA was fair and

just    and     that     Plaintiff     had       failed    to    establish        fraud,

misrepresentation, undue influence, or mutual mistake of fact.

Therefore,      Plaintiff     was     compelled      to    execute    the        CSA   and

Defendants were ordered to make payments in accordance with that

agreement. Plaintiff appeals the Commission’s 15 January 2013

opinion and award.

                              Standard of Review

       Review    of    an   opinion    and       award    of   the   Commission        “is

limited to consideration of whether competent evidence supports

[its] findings of fact and whether the findings support the

Commission’s          conclusions     of     law.”        Richardson        v.     Maxim
                                        -5-
Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584

(2008) (citation 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. McRae v.

Toastmaster,     Inc.,     358   N.C.   488,       496,    597   S.E.2d    695,     700

(2004).    The   Commission’s     conclusions        of    law     are   reviewed    de

novo. Ramsey v. S. Indus. Constructors, Inc., 178 N.C. App. 25,

30, 630 S.E.2d 681, 685 (2006). Unchallenged findings of fact

are binding on appeal. Johnson v. Herbie’s Place, 157 N.C. App.

168, 180, 579 S.E.2d 110, 118 (2003).

                                  Discussion

      On appeal, Plaintiff argues that the Commission erred in

determining that the MSA was valid and enforceable against him

because (1) the MSA did not comply with Rule 502 or N.C. Gen.

Stat. § 97-17, (2) there was no meeting of the minds between the

parties, and (3) the terms of the MSA were not fair and just.

Accordingly, Plaintiff asserts that he is not bound by the terms

of   the   MSA   because    he   refused      to    sign    it.3    We   affirm     the

3
  Plaintiff also states in numerous places throughout his brief
that “Defendants did not file a Form 60, 61, or 63 with the
Industrial Commission in response to Plaintiff’s Form 18.”
Plaintiff does not explain, however, how this asserted fact
affects the validity of the Commission’s opinion and award or
how it applies to the arguments he has raised on appeal. This
does not constitute a reviewable argument, and we do not address
it further. See generally N.C.R. App. P. 28(a) (“The function of
all briefs required or permitted by these rules is to define
                                     -6-
Commission’s opinion and award, which enforced the MSA against

Plaintiff and compelled him to execute the CSA.

    I. Rule 502 and N.C. Gen. Stat. § 97-17

    As Plaintiff notes in his brief, the MSA did not include a

list of Plaintiff’s known medical expenses, but the CSA did. On

appeal,   Plaintiff     argues   that   Defendants      violated      Industrial

Commission Rule 502 and N.C. Gen. Stat. § 97-17 by failing to

include   a    list   of   medical    expenses     as   part    of    the   MSA.

Therefore, Plaintiff contends, he is not bound by that document.

We disagree.

    Industrial        Commission     Rule   502,     entitled        “Compromise

Settlement Agreements,” states in pertinent part that:

           (c)   No   compromise agreement               will   be
           considered unless the following              additional
           requirements are met:

           . . .

                 (3) The settlement agreement must
                 contain a list of all of the known
                 medical expenses of the employee
                 related to the injury to the date
                 of   the   settlement   agreement,
                 including medical expenses that
                 the employer or insurance carrier
                 disputes, when the employer or
                 carrier has not agreed to pay all
                 medical expenses of the employee

clearly the issues presented to the reviewing court and to
present the arguments and authorities upon which the parties
rely in support of their respective positions thereon. The scope
of review on appeal is limited to issues so presented in the
several briefs.”).
                                     -7-
                 related to the injury up to the
                 date of the settlement agreement.

4 N.C. Admin. Code 10A.0502 (2012).4

     The    heading   for    Rule   502    specifies    that    the    language

contained    therein,   requiring     a    “list   of   all    known   medical

expenses” to be included in the settlement agreement, limits

that requirement to         compromise settlement agreements. Because

Defendants included a list of medical expenses as a part of the

compromise settlement agreement in this case — i.e., the CSA —

they did not violate Rule 502. Accordingly, Plaintiff’s argument

is overruled as it pertains to Rule 502.

     N.C. Gen. Stat. § 97-17, entitled “Settlements allowed in

accordance with Article,” reads in pertinent part as follows:

            (a)   This      article     does   not     prevent
            settlements made by and between the employee
            and employer so long as the amount of
            compensation and the time and manner of
            payment    are     in    accordance    with    the
            provisions of this Article. A copy of a
            settlement agreement shall be filed by the
            employer    with      and    approved     by   the
            Commission. No party to any agreement for
            compensation approved by the Commission
            shall   deny     the   truth   of    the   matters
            contained    in    the    settlement    agreement,
4
   Plaintiff refers to this rule as “502(3)(c),” and the
Commission’s website lists it as the same. Workers’ Compensation
Rules,     The    North     Carolina    Industrial     Commission
http://www.ic.nc.gov/ncic/pages/comprule.htm           (revisions
effective 1 January 2011 and 1 January 2013). Title 4 of the
2012 edition of the North Carolina Administrative Code (“the
Code”), however, lists this rule as 502(c)(3). Treating the Code
as the authoritative text, we use the latter designation.
                                -8-
         unless the party is able to show to the
         satisfaction of the Commission that there
         has    been     error    due    to    fraud,
         misrepresentation, undue influence or mutual
         mistake, in which event the Commission may
         set aside the agreement. . . .

         (b) The Commission shall not approve a
         settlement agreement under this section,
         unless all of the following conditions are
         satisfied:

              (1) The settlement agreement is
              deemed by the Commission to be
              fair   and  just,   and  that   the
              interests of all of the parties
              and of any person, including a
              health benefit plan that paid
              medical     expenses     of     the
              employee[,] have been considered.

              (2)   The    settlement  agreement
              contains a list of all the known
              medical expenses of the employee
              related to the injury to the date
              of   the    settlement  agreement,
              including medical expenses that
              the employer or carrier disputes,
              and a list of medical expenses, if
              any, that will be paid by the
              employer   under   the  settlement
              agreement.

              (3)   The     settlement  agreement
              contains    a   finding  that   the
              positions of all of the parties to
              the agreement are reasonable as to
              the      payment      of    medical
              expenses. . . .

N.C. Gen. Stat. § 97-17(a)–(b) (2013) (emphasis added).

    While   section   97-17   does    not   expressly   use   the   term

“compromise settlement agreement,” as Rule 502 does, we conclude
                                         -9-
that the “settlement agreement” to which section 97-17 pertains

is   the   final    compromise       settlement     agreement      required    to    be

approved    by     the   Commission.     See   id.    The   mediated      settlement

agreement     is    simply     the    document      used    to    memorialize       the

substantive        terms   reached     between       the    parties      during     the

mediated    settlement         conference.     It     is    not    the    settlement

agreement     that       the   Commission      approves.         While   the      terms

memorialized in a mediated settlement agreement may be used to

enforce the parties’ settlement, the practice of memorializing

the settlement in a mediated settlement agreement document is

not — and was never meant to be — the same as the creation of

the final settlement agreement strictly regulated under section

97-17. That is the role of the compromise settlement agreement.

See, e.g., Lemly v. Colvard Oil Co., 157 N.C. App. 99, 104, 577

S.E.2d 712, 716 (2003) (holding that the mediated settlement

agreement was enforceable against the plaintiff even though the

agreement lacked “all the required terms and language” because

it was signed by the parties and conformed with the compromise

settlement agreement). Therefore, we hold that the MSA is not

unenforceable under Rule 502 or section 97-17 for lacking a list

of medical expenses when such a list was included in the CSA.

Accordingly, Plaintiff’s first argument is overruled.

      II. Meeting of the Minds
                                    -10-
    In his second argument on appeal, Plaintiff contends that

the MSA is unenforceable because there was no “meeting of the

minds” during the mediated settlement conference. For support,

Plaintiff cites an alleged contradiction between (a) the MSA and

his own testimony as compared to (b) a statement made by counsel

for Defendants during the 7 November 2011 hearing before the

deputy    commissioner.    The    MSA    states       that   “Defendants   have

reasonably denied Plaintiff’s claims for compensation.” At the

hearing, Plaintiff testified that he understood Defendants had

“denied the whole [20 April 2010] claim.” At the same hearing,

however, counsel for Defendants stated that “Plaintiff sustained

an admittedly compensable right knee injury on [20 April 2010].”

Therefore, Plaintiff asserts that the MSA is not enforceable

because   “[t]he    foregoing    facts   offer    competent     evidence   that

there was not a meeting of the minds as to the accepted versus

denied status of Plaintiff’s claim for purposes of settlement of

his claim via the [MSA].” We disagree.

    Plaintiff’s argument misapprehends our role in reviewing an

opinion and award of the Commission. As noted above, we review

the Commission’s conclusions of law to ensure they are supported

by its findings of fact and review its findings of fact to

ensure    that     they   are    supported       by     competent    evidence.

Richardson, 362 N.C. at 660, 669 S.E.2d at 584. We lack the
                                     -11-
authority to weigh the evidence and make findings based on that

evidence. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,

414 (1998) (“The findings of fact by the Industrial Commission

are conclusive on appeal if supported by any competent evidence.

Thus, on appeal, [the appellate court] does not have the right

to weigh the evidence and decide the issue on the basis of its

weight.   The    court’s    duty   goes   no   further   than   to   determine

whether the record contains any evidence tending to support the

finding.”)      (citation    and   internal    quotation    marks    omitted;

emphasis added).

    In this case, the Commission found the following pertinent

facts:

           5. Although[] the July 22, 2011 [MSA]
           indicates in regards to “Compensability”
           that “Defendants have reasonably denied
           Plaintiff’s   claims    for  compensation,”
           Defendants’     post-hearing    contentions
           submitted to the Deputy Commissioner stated
           that “Plaintiff sustained an admittedly
           compensable right knee injury on April 20,
           2010.”

           . . .

           17. In considering whether the settlement
           amount is fair and just and in the best
           interest   of    all    parties,   the  . . .
           Commission has considered that there were
           contested   issues   in   this   claim, which
           included the differing medical opinions as
           to   the    extent    of    Plaintiff’s  work
           restrictions, whether Defendant-[e]mployer
           could accommodate those work restrictions,
           and the need for future medical treatment
                                      -12-
             and whether the potential future surgery
             referenced by Dr. Seidel would be related to
             the work injury or entirely the result of
             the    pre-existing     knee   injury     from
             Plaintiff’s military service in Vietnam, as
             well as Plaintiff’s alleged failure to
             recall his reading or signing the [MSA] due
             to   low   blood    sugar.   Based   upon    a
             preponderance of the evidence of record, the
             . . . Commission finds that the $15,000.00
             settlement amount was fair and just and in
             the best interests of all parties.

             18. . . . Plaintiff knowingly and willingly,
             and with counsel, entered into a binding
             contractual   agreement   at   mediation   to
             execute a [CSA] that would compromise and
             finally settle the workers’ compensation
             claim related to his April 20, 2010 injury.

Acknowledging counsel for Defendants’ post-hearing contention to

the deputy commissioner, the Commission nonetheless determined

that   the    MSA    constituted      a    binding   contractual        agreement.

Plaintiff     does   not   dispute        this   finding   as     not   based    on

competent      evidence       or   not      supporting     the      Commission’s

conclusions of law. Therefore, it is binding on appeal, “even

though there is evidence that would support findings to the

contrary,”    McRae,    358    N.C.   at    496,   597   S.E.2d    at   700,5   and

Plaintiff’s second argument is overruled.




5
  We note that the post-hearing statement made by counsel for
Defendants was not necessarily contradictory. It is reasonable
to admit the occurrence of an on-the-job incident, but deny for
other reasons the existence of a right to compensation, as was
clearly the case here.
                                        -13-
      Even      assuming   that       Plaintiff      properly     challenged       the

Commission’s findings as not based on competent evidence or not

supporting      its    conclusions     of     law,   we   note    that     there    is

evidence in the record to support the existence of a meeting of

the minds between the parties during the mediated settlement

conference.       As   a   rule,      “compromise      settlement        agreements,

including       mediated   settlement         agreements,     are       governed   by

general principles of contract law.” Kee v. Caromont Health,

Inc.,    209    N.C.   App.    193,    195,    706   S.E.2d      781,    783   (2011)

(citation and internal quotation marks omitted). Such principles

dictate that

               [t]he court is to interpret a contract
               according to the intent of the parties to
               the contract, unless such intent is contrary
               to law. If the plain language of a contract
               is clear, the intention of the parties is
               inferred from the words of the contract.
               When the language of the contract is clear
               and   unambiguous,   construction   of   the
               agreement is a matter of law for the court,
               and the court cannot look beyond the terms
               of the contract to determine the intentions
               of the parties.

Williams v. Habul, __ N.C. App. __, __, 724 S.E.2d 104, 111

(2012) (citations and internal quotation marks omitted). “It is

a well-settled principle of contract law that a valid contract

exists only where there has been a meeting of the minds as to

all     essential      terms    of     the     agreement.”        Northington       v.

Michelotti, 121 N.C. App. 180, 184, 464 S.E.2d 711, 714 (1995)
                                         -14-
(citation omitted). “When a party affixes his signature to a

contract, he is manifesting his assent to the contract.” Mosley

v. WAM, Inc., 167 N.C. App. 594, 599, 606 S.E.2d 140, 143 (2004)

(citation omitted).

    In    this    case,    the     MSA    clearly       stated           that   Defendants

reasonably     denied     Plaintiff’s      claim        for        compensation.         That

document was signed by both Plaintiff and Defendants. Therefore,

the parties’ signatures, alone, constituted competent evidence

to support the Commission’s conclusion that they entered into a

binding, contractual agreement. See generally Mosley, 167 N.C.

App. at 599, 606 S.E.2d at 143. The post-hearing statement made

by counsel for Defendants could not change this fact.

    III. Fair and Just

    Plaintiff      also    contends       that        the     Commission         erred     in

determining that the terms of the MSA were fair and just and,

thus, in enforcing the MSA against him. For support, Plaintiff

asserts that the Commission erroneously (1) failed to establish

whether   Plaintiff’s      claim    was    contested          or     uncontested,        (2)

shifted   to   Plaintiff    “the    burden       of    proof        as    to    the   causal

relationship     between     the    recommended             knee    arthroplasty         and

Plaintiff’s      compensable       knee    injury,”           and        (3)    based    its

determination on information not available at the time of the

settlement negotiations. We are unpersuaded.
                                             -15-
       Section      97-17(b)      provides      that    the    Commission      shall       not

approve a settlement agreement unless the agreement is, inter

alia, deemed “fair and just” by the Commission. N.C. Gen. Stat.

§     97-17(b).      Rule     502(a)     also       provides        that   “[o]nly       those

[compromise settlement] agreements deemed fair and just and in

the    best   interest       of   all    parties       will    be    approved.”      4    N.C.

Admin. Code 10A.0502 (2012).

       “Every       compensation       and   compromise        agreement      between       an

employer      and    an     injured     employee      must     be    determined      by    the

Commission to be fair and just prior to its approval.” Lewis v.

Craven Reg’l Med. Ctr., 134 N.C. App. 438, 441, 518 S.E.2d 1, 3

(1999), affirmed, 352 N.C. 668, 535 S.E.2d 33 (2000). In making

that determination, the Commission must undertake a

              full investigation . . . in order to assure
              that the settlement is in accord with the
              intent   and   purpose   of    the   [Workers’
              Compensation] Act that an injured employee
              receive the disability benefits to which he
              is entitled, and, particularly, that an
              employee     qualifying     for     disability
              compensation   under   both   sections   97-29
              and -31 have the benefit of the more
              favorable remedy.

Vernon v. Steven L. Mabe Builders, 336 N.C. 425, 432–33, 444

S.E.2d 191, 195 (1994). Generally speaking,

              the fair and just determination is somewhat
              subjective in nature. Neither the statutory
              Workers’ Compensation Act nor the Workers’
              Compensation  Rules   provide   a   specific
              procedure or guideline for deciding what is
                                           -16-
            fair and just. While Rule 502 sets forth
            what must be contained in a compromise
            agreement, it does not specify how the
            Commission should go about its fair and just
            determination.     The     Commission    must
            necessarily take into account the validity
            of the plaintiff’s claim, despite the fact
            that the issue of compensability is not
            before it. In many instances, the amount of
            the settlement reached reflects how the
            parties   perceive   the  viability   of  the
            plaintiff’s claim. The Commission is not
            blind to this reality, but it must determine
            for itself whether the settlement is fair
            and just based on the evidence before it.

Malloy v. Davis Mechanical Inc., __ N.C. App. __, __, 720 S.E.2d

739, 744 (2011). In determining whether the settlement agreement

is fair and just, the Commission should consider the information

available    to     the    parties        at    the   time     of    the    settlement

negotiations and take into account whether the plaintiff was

represented by counsel. See id. at __, 720 S.E.2d at 743; Kyle

v. Holston Grp., 188 N.C. App. 686, 696, 656 S.E.2d 667, 674

(2008) (holding that the settlement agreement was unenforceable

as   not   fair    and    just,      in    part    because     the    plaintiff   was

“unrepresented and unaware at the time of settling his case

that,   under     the    law,   he   was       entitled   to   the   most   favorable

remedy available to him, including total disability benefits if

he was totally disabled”).
                                    -17-
    In   addition   to    finding    of    fact   17,   quoted   above,    the

Commission   made   the    following       pertinent    findings   of     fact

regarding whether the settlement agreement was fair and just:

          16. At the hearing before the Deputy
          Commissioner, Plaintiff, who was represented
          by counsel at the mediation on July 22,
          2011, testified he did not remember reading
          or signing the [MSA] as a result of low
          blood sugar resulting from his diabetic
          condition. Plaintiff also testified that he
          did not notify his attorney that he was not
          feeling well at the time of the mediation
          and   at  no  time   requested  to  take   a
          break. . . .

          . . .

          18. Based upon a preponderance of the
          evidence of record, the . . . Commission
          finds    that   Plaintiff     knowingly    and
          willingly, and with counsel, entered into a
          binding contractual agreement at mediation
          to   execute  a    [c]ompromise   [s]ettlement
          [a]greement   that    would   compromise   and
          finally settle the workers’ compensation
          claim related to his April 20, 2010 injury.

          19. When viewed in light of the facts of the
          case at the time of the settlement, and
          based upon a preponderance of the evidence
          of record, the . . . Commission finds that
          the [CSA] that was drafted by Defendants and
          which Plaintiff refused to sign was fair and
          just and in the interests of all of the
          parties.




          A. The Commission’s Duty to Consider the Contested or
             Uncontested Nature of Plaintiff’s Claim
                                      -18-
     Citing Malloy, Plaintiff first contends that the settlement

agreement is not fair and just because the Commission made no

determination regarding whether Plaintiff’s claim was contested

or   uncontested   on    the       issue   of   compensability.   Plaintiff

contends that this determination is “vital” to the Commission’s

decision because it impacts whether the Commission considers the

fair and just issue in the light most favorable to Plaintiff. We

are unpersuaded.

     In Malloy, we stated in obiter dictum that we believed the

Commission erred in reviewing the plaintiff’s claim “in the most

favorable   manner”     to   the    plaintiff    because   that   claim   was

contested on the issue of compensability. Malloy, __ N.C. App.

at __, 720 S.E.2d at 744. We reasoned that,

            [w]hen a claim is contested, . . . the
            plaintiff is not able to select the more
            favorable remedy. In that situation, the
            plaintiff is faced with the possibility of
            receiving no compensation if he or she
            proceeds to a hearing on compensability and
            does   not   prevail.  The  plaintiff  must
            scrutinize the validity of his or her claim
            and determine if a settlement would be in
            his or her best interest.

Id. We also noted that the Commission should make its fair and

just determination by considering the facts in a manner most

favorable to the plaintiff only when the plaintiff’s claim is

uncontested. Id. In that circumstance, “the Commission is, in a

sense, considering the plaintiff’s claim in the most favorable
                                            -19-
manner in order to ensure that the plaintiff is receiving the

maximum remedy possible in an uncontested claim.” Id. (emphasis

added). This is because (1) the defendant has already admitted

compensability         and    (2)    the    Commission       must       ensure        that    the

plaintiff is treated fairly for essentially agreeing to waive

the    judicial    process          and    accept     compensation            without     those

safeguards.

       In this case, Plaintiff’s claim was contested on multiple

issues. Though the Commission did not label Plaintiff’s claim as

“contested”       on    the      particular        issue    of     compensability,             it

enforced     the       MSA,    which       stipulated       that        “Defendants          have

reasonably    denied          Plaintiff’s      claims       for    compensation,”             and

described a number of “contested issues” in finding of fact 17

supporting     Defendant’s           denial      of      those    claims.        For      these

reasons,    Plaintiff’s          claim     was     not     subject       to     the    special

consideration described in Malloy. Accordingly, we hold that the

Commission’s           opinion       and       award       sufficiently               described

Plaintiff’s claim for the purposes of engaging in its fair and

just    decision-making             process.     Therefore,         Plaintiff’s           first

argument is overruled.

            B. Burden of Proof

       In his second argument regarding the Commission’s fair and

just    determination,          Plaintiff        contends        that     the     Commission
                                          -20-
misapplied     the    law.      Specifically,     Plaintiff        asserts    that   the

Commission “incorrectly shift[ed] the burden of proof” as to the

causal relationship between the knee surgery recommended by Dr.

Seidel and Plaintiff’s knee injury in its findings of fact 8 and

17,   requiring       Plaintiff      to   prove     that    future       treatment    is

related to the workplace injury. Plaintiff contends that, in

fact,   “there       is   a    presumption       that    Plaintiff’s       recommended

additional medical treatment, including surgery, is related to

his compensation [sic] knee injury, unless there is evidence

offered   to   rebut      such      presumption    and     no     such   evidence    was

offered   to    rebut         the   presumption     in     this    matter.”    We    are

unpersuaded.

      Finding of fact 8 reads as follows:

           On May 18, 2010, Plaintiff again presented
           to Dr. Seidel who placed work restrictions
           on Plaintiff of no standing continuously for
           eight to ten hours with sitting twenty
           minutes every hour. Dr. Seidel noted the
           work restrictions would remain in effect for
           three weeks. Dr. Seidel noted that Plaintiff
           would have to seriously consider a knee
           arthroplasty; however, the . . . Commission
           finds that there is insufficient evidence to
           determine whether Dr. Seidel considered such
           surgery   related  to  the   Vietnam  injury
           exclusively or due to an aggravation of the
           pre-existing condition as a result of the
           work injury.
                                        -21-
Finding of fact 17, quoted above, lists as a “contested issue[]”

whether the “potential future surgery” would be related to the

work injury or the Vietnam injury.

    Plaintiff’s argument            evidences a misunderstanding of the

process the Commission must undertake when determining whether a

settlement agreement is fair and just. This Court has stated

that “[t]he Commission is required to . . . determine that a

settlement agreement is fair and just in order to assure that

the settlement is in accord with the intent and purpose of the

[Workers’ Compensation] Act that an injured employee receive the

disability benefits to which he is entitled.” Kyle, 188 N.C.

App. at 695, 656 S.E.2d at 673 (citations and internal quotation

marks   omitted).       While   this        process   sometimes     requires       the

Commission to take the validity of the plaintiff’s claim into

consideration, it does not impose the burden of engaging in a

detailed analysis of the law as it applies to the facts of a

particular claim.

    Here,    as    Defendants    point        out,    the   Commission     “was   not

determining whether future medical treatment was related to the

original work injury. [It] recognized that the future medical

treatment    was   a    contested    issue,”      which     would   have   been    in

contention    in    a    hearing.      As    a   matter     of   procedure,       such

questions must be addressed in a separate hearing before the
                                           -22-
deputy commissioner — not in an argument on appeal as to the

enforceability of the parties’ settlement agreement. Therefore,

to the extent Plaintiff’s argument has any substantive legal

merit,6   it     does   not   support       his   larger    contention     that   the

settlement agreement is not fair and just. Accordingly, that

argument is overruled.

               C. Information Available to the Parties at the Time of
                  the Settlement Negotiation

       Plaintiff also contends that the Commission erred in its

fair and just determination because the information available to

the parties at the time of the negotiation was contradictory.

Specifically, Plaintiff points out that, while the MSA listed

his    claim    as   “denied,”       the   Commission      found   that   Plaintiff

sustained      “compensable      injuries”        and   counsel    for    Defendants

stated in a post-hearing contention that “Plaintiff sustained an

admittedly compensable right knee injury on April 20, 2010.”

Plaintiff      concludes      that    “the    information     available     to    the

parties at the time of settlement is not consistent with the

information used by the . . . Commission in its analysis as to

whether or not the terms of the [MSA] are fair and just.” We

disagree.

       Plaintiff’s argument misapplies the facts and misapprehends

the requirement that the fair and just determination take into
6
    We offer no opinion on whether it does.
                                          -23-
account only the information known by the parties at the time of

the settlement negotiations. See Malloy, __ N.C. App. at __, 720

S.E.2d at 743 (“[T]he Commission is required to evaluate the

settlement or mediation agreement based strictly on the evidence

available       at   the    time   the    agreement      was   reached.    To    hold

otherwise would potentially permit either party to avoid their

contractual obligation should new circumstances arise prior to

approval by the Commission.”). First, Plaintiff’s assertion that

the Commission found he sustained compensable injuries to his

right knee and right shoulder is incorrect. The Commission only

found that “Plaintiff sustained a right knee and right shoulder

injury     at     work . . . .”      It   properly       declined    to   make     any

findings    regarding        the   consequences     of   Plaintiff’s      injury    as

they     relate      to    compensability.       Second,     even   assuming     that

Defendants’ post-hearing statements to the deputy commissioner

regarding the compensability of Plaintiff’s injury are relevant

to the cited rule7 or are contradictory, such comments were made

after the settlement negotiations occurred and, thus, have no

bearing on the Commission’s fair and just determination as it

pertains to the information available to the parties at the time

of   the   settlement        negotiations.       Moreover,     we   reiterate    that
7
  As the rule only requires the Commission to take into account
the information available to the parties at the time of the
settlement negotiations, we do not believe those statements are
relevant.
                                         -24-
while Defendants did not contest the occurrence of an on-the-job

accident involving Plaintiff’s right knee, they raised multiple

issues    as   to    the    compensable       consequences,     if    any,   of   that

accident. Accordingly, Plaintiff’s third argument is overruled.

    IV. The CSA

    Lastly, Plaintiff contends that the Commission is prevented

from enforcing the CSA against him pursuant to Rule 502(c)(2)

because   it   was    not    signed     by    the   parties.    This      argument   is

without merit.

    As discussed above, the CSA comprises the fully executed

settlement agreement between the parties. Because the MSA was

signed    by   the    parties     and        is   valid   and   enforceable,         the

signature      requirement       of      Rule       502(c)(2)        is    satisfied.

Accordingly, Plaintiff’s final argument is overruled, and the

Commission’s opinion and award is

    AFFIRMED.

    Judges CALABRIA and ELMORE concur.

    Report per Rule 30(e).
