                               NO. COA13-1348

                      NORTH CAROLINA COURT OF APPEALS

                             Filed:    17 June 2014


JAMES J. LEWIS,
     Employee, Plaintiff,

    v.                                     North Carolina Industrial
                                           Commission
                                           I.C. No. 265472
N.C. DEPARTMENT OF CORRECTION,
     Employer, SELF-INSURED
     (CORVEL CORPORATION,
     Administrator),
     Defendant.


    Appeal     by     plaintiff-employee       from    Order    of     the    Full

Commission    entered    5   September    2013    by   the     North    Carolina

Industrial Commission.        Heard in the Court of Appeals 19 May

2014.


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

    Roy Cooper, Attorney General, by Deborah M.                          Greene,
    Assistant Attorney General, for defendant-appellee.


    MARTIN, Chief Judge.


    On 26 March 1996, plaintiff-employee James J. Lewis was

awarded temporary total disability benefits from 11 September

1994 until his return to work along with the cost of medical

treatment    for    posttraumatic     stress   disorder   arising      from    his
                                             -2-


employment        with     defendant         North        Carolina        Department        of

Correction.       Lewis v. N.C. Dep’t of Corr. (Lewis II), 167 N.C.

App. 560, 561, 606 S.E.2d 199, 200 (2004); see also Lewis v.

N.C. Dep’t of Corr. (Lewis I), 138 N.C. App. 526, 526–27, 531

S.E.2d     468,    469     (2000).           The       Full   Commission         entered    an

additional Opinion and Award dated 10 July 2003, concluding that

plaintiff’s “original compensable injury, post-traumatic stress

disorder,     exacerbated              and      aggravated        [his]      pre-existing

diabetes,” and awarded payment of medical expenses for treatment

for   plaintiff’s         diabetic       condition        and     related        periodontal

condition.        Lewis II, 167 N.C. App. at 562–63, 606 S.E.2d at

201–02.       Plaintiff             continued      to    receive        compensation       for

temporary total disability pursuant to N.C.G.S. § 97-29.

      On 5 February 2010, plaintiff filed a Form 33 to request a

hearing     because       he    wished       to    receive       permanent        disability

benefits     pursuant      to        N.C.G.S.      §    97-31,     as     well     as   other

allowances.         The    deputy        commissioner         ruled,      inter     alia    as

related to the matters presented by this appeal, that plaintiff

had reached maximum medical improvement on 19 November 2009 and

was entitled to receive permanent benefits pursuant to N.C.G.S.

§ 97-31,     rather       than        temporary         disability       benefits       under

N.C.G.S. § 97-29.          As a result, plaintiff was awarded permanent

partial disability benefits in a lump sum based on the ratings

schedule    contained          in    N.C.G.S.      § 97-31,      minus    the     amount    of
                                     -3-


temporary total disability benefits defendant had paid plaintiff

since 19 November 2009, and an additional lump sum for permanent

partial    disability      ratings   to     body   parts     and    organs     not

specifically listed in N.C.G.S. § 97-31, pursuant to N.C.G.S.

§ 97-31(24).

    Both parties appealed to the Full Commission which, by an

Opinion and Award dated 21 February 2012 and amended 23 May

2012,     affirmed   the    deputy      commissioner’s     award,      with    the

exception that the award for non-listed body parts and organs

made pursuant to N.C.G.S. § 97-31(24) was reduced from $127,000

to $95,000.       On 3 August 2012, plaintiff filed a motion to

require defendant to pay interest on the lump sum award.                        The

Full Commission denied the motion on 23 July 2013 and denied

plaintiff’s motion for reconsideration on 5 September 2013.                     In

denying    the   motion,   the   Full     Commission       reasoned    that    the

purpose of interest awarded pursuant to N.C.G.S. § 97-86.2 is to

compensate an individual for the loss of the use of money to

which he is entitled while an appeal is pending.                      During the

pendency of the appeals in the present case, defendant continued

to pay plaintiff weekly benefits under N.C.G.S. § 97-29.                      Thus,

the Full Commission reasoned that because an individual cannot

receive benefits under both N.C.G.S. § 97-29 and N.C.G.S. § 97-

31, none of plaintiff’s benefits were past due at the date of

the initial hearing or the final award, and no interest was due.
                                            -4-


Plaintiff appeals.

                          _________________________

       On appeal, plaintiff argues the Full Commission should have

required defendant to pay interest on the benefits awarded to

plaintiff in the 23 May 2012 Opinion and Award from the date of

the initial hearing in this dispute.                    We agree.

       Generally,    when     we     review       an    opinion     and    award    of    the

Industrial    Commission        our    review          is   limited   to    determining:

“(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.”              Clark v. Wal-Mart, 360 N.C. 41, 43,

619 S.E.2d 491, 492 (2005).             However, we review the Commission’s

conclusions of law de novo.                 McRae v. Toastmaster, Inc., 358

N.C. 488, 496, 597 S.E.2d 695, 701 (2004).

       In   this   appeal,      we    address          only   the   issue    of    whether

defendant    is    required     to    pay     plaintiff        interest      pursuant      to

N.C.G.S. § 97-86.2 on the unpaid portion of plaintiff’s benefits

from   the   date    of   the      initial        hearing      giving      rise    to    this

dispute.     N.C.G.S. § 97-86.2 states:

             In any workers’ compensation case in which
             an order is issued either granting or
             denying an award to the employee and where
             there is an appeal resulting in an ultimate
             award to the employee, the insurance carrier
             or employer shall pay interest on the final
             award or unpaid portion thereof from the
             date of the initial hearing on the claim,
             until paid at the legal rate of interest
                                             -5-


              provided in G.S. 24-1. If interest is paid
              it shall not be a part of, or in any way
              increase attorneys’ fees, but shall be paid
              in full to the claimant.

N.C. Gen. Stat. § 97-86.2 (2013) (emphasis added).

      In the past, when interpreting the word shall, our courts

have stated:        “It is well established that ‘the word “shall” is

generally imperative or mandatory.’”                      Multiple Claimants v. N.C.

Dep't of Health & Human Servs., 361 N.C. 372, 378, 646 S.E.2d

356, 360 (2007) (quoting State v. Johnson, 298 N.C. 355, 361,

259   S.E.2d      752,    757     (1979)).         As    a    result,      if   all   of    the

statutory requirements are satisfied then the Commission must

apply the statute and has no “discretion in making the required

determination.”           Puckett v. Norandal USA, Inc., 211 N.C. App.

565, 573–74, 710 S.E.2d 356, 362 (2011).                          Furthermore, we have

stated     that    the     goals     of    this         statute     are:        “‘(a)      [T]o

compensate a plaintiff for loss of the use value of a damage

award    or   compensation         for    delay     in       payment;    (b)    to    prevent

unjust enrichment to a defendant for the use value of the money,

and (c) to promote settlement.’”                   Childress v. Trion, Inc., 125

N.C. App. 588, 592, 481 S.E.2d 697, 699 (alteration in original)

(quoting Powe v. Odell, 312 N.C. 410, 413, 322 S.E.2d 762, 764

(1984)),      disc.      review    denied,     346       N.C.     276,   487    S.E.2d      541

(1997).

      Based on our reading of the statute, plaintiff is entitled
                                        -6-


to interest on the award in the 23 May 2012 Opinion and Award

from the date of the initial hearing, 27 August 2010, until the

date that the award was paid in full for the following reasons.

First, the statute says that the “employer shall pay interest on

the . . . unpaid portion thereof from the date of the initial

hearing.”    N.C.      Gen.   Stat.    §   97-86.2      (emphasis     added).    As

discussed earlier, by its use of the word “shall” the statute

compels the Commission to award interest on the unpaid portion

of an award.     Second, the purpose of interest is to compensate

an individual for their inability to use the awarded money while

an appeal is pending.         In this case, plaintiff was unable to use

the full amount of his lump sum monetary award in the 6 April

2011 Opinion and Award because defendant did not pay the award

while the appeal was pending; defendant did have the benefit of

the use of the awarded money during the appeal.                         Therefore,

plaintiff   is   entitled       to    interest     as    compensation     for    his

inability   to   use    the     awarded    money     during   his     appeal,   and

defendant is foreclosed from retaining the benefit of being able

to use the money during the appeal.

    There   is   no     issue    of    double    recovery     here.      The    Full

Commission reasoned that plaintiff was not entitled to interest

under N.C.G.S. § 97-86.2 because he “received weekly benefits

pursuant to N.C. Gen. Stat. § 97-29 throughout the pendency of

the litigation,” and it would be a double recovery for plaintiff
                                 -7-


to receive benefits under N.C.G.S. § 97-31 and N.C.G.S. § 97-29

for the same time period.     The 23 May 2012 Opinion and Award,

however, prevented this result.    The Opinion and Award made the

following awards:

            1.   Subject to a reasonable attorney’s fee
            approved   herein   and   the   credit   owed
            defendant for the temporary total disability
            compensation benefits paid to plaintiff
            after November 19, 2009, defendant shall pay
            permanent partial disability compensation to
            plaintiff for permanent partial disability
            ratings to body parts specifically listed in
            N.C. Gen. Stat. Section 97-31 at the rate of
            $293.64 per week for a total of 285.6 weeks.
            This amount shall be paid in a lump sum.

            2.   Subject to a reasonable attorney’s fee
            approved    herein,   defendant  shall   pay
            equitable compensation in the total amount
            of   $95,000.00   for  permanent  injury  to
            important internal or external organs and
            body parts pursuant to N.C. Gen. Stat.
            Section 97-31(24).     This amount shall be
            paid in a lump sum, subject to the attorney
            fee hereinafter approved.

(Emphasis added.)    The Opinion and Award is clear that defendant

is entitled to a credit for the total amount of the temporary

total disability benefits paid to plaintiff under N.C.G.S. § 97-

29.     Thus, a double recovery does not occur because the amount

paid to plaintiff under N.C.G.S. § 97-29 is deducted from the

balance of the permanent partial disability benefits awarded to

plaintiff under N.C.G.S. § 97-31.      Plaintiff is not collecting

benefits under N.C.G.S. § 97-29 and N.C.G.S. § 97-31 at the same

time.
                                           -8-


       In addition, the Full Commission erred in reasoning that

none of plaintiff’s award was past due.                        The Full Commission

reasoned that because none of plaintiff’s benefits were past due

at the time of the initial hearing in this matter or when the 23

May    2012    Opinion    and    Award     was    entered,      plaintiff       was   not

entitled      to   interest.       N.C.G.S.       §    97-86.2    states    that      the

“employer      shall   pay      interest    on    the    final    award    or    unpaid

portion thereof from the date of the initial hearing on the

claim.”       N.C. Gen. Stat. § 97-86.2 (emphasis added).                   Thus, it

does   not    matter     that    defendant       had    made   weekly   payments      to

plaintiff during the pendency of the appeal and that none of

those payments were past due because the full amount of the lump

sum award “became due” as of the date of the initial hearing.

Therefore, the statute entitles plaintiff to interest on the

unpaid portion of the award from the date of the initial hearing

in this matter.

       For the reasons stated herein we reverse the 5 September

2013 Order of the Full Commission and remand this case to the

Full Commission for issuance of an order consistent with this

opinion.

       Reversed and remanded.

       Judges STEELMAN and DILLON concur.
