Vernon R. Sumwalt on Enforceability of NC Deputy Commissioner Opinions and Awards During Appeal to Full Commission: Roberts v. Dixie News, Inc.

Vernon R. Sumwalt has written an expert commentary article on Roberts v. Dixie News, Inc., 658 S.E.2d 684 (2008), 2008 N.C. App. LEXIS 654, in which the North Carolina Court of Appeals held that a decision by a deputy commissioner is enforceable during an appeal, even though it is appealed and later reversed by the Full Commission.  This issue of first impression has several consequences for appellate practice in North Carolina workers’ compensation cases.

 Background of case. Ms. Roberts had an admittedly compensable work-related injury on May 8, 2003.  After she completed a rehabilitation program, her doctors assigned permanent restrictions against lifting more than 25 pounds on May 11, 2004.  Defendants did not provide vocational rehabilitation until after Ms. Roberts had found another job on her own, which started August 31, 2004.  On November 3, 2004, Ms. Roberts lost this job because of reasons related to her injury.  Defendants did not reinstate indemnity compensation or vocational rehabilitation at this time, and Ms. Roberts requested a hearing.

In the meantime, Ms. Roberts found another job in South Carolina on January 3, 2005, which she also lost because of injury-related reasons less than two weeks later.  Defendants not only refused to reinstate indemnity compensation at that time, but they also refused to provide any further medical compensation, alleging that Ms. Roberts sustained a new injury in her South Carolina employment.  Ms. Roberts continued to the hearing she had already requested.

The deputy commissioner who heard the case ordered Defendants to reinstate Ms. Roberts’ compensation before the hearing.  On November 17, 2005, however, the deputy commissioner filed an Opinion and Award in defendants’ favor, allowing a termination of indemnity and medical compensation on the basis that Ms. Roberts sustained a new injury in South Carolina on January14, 2005.  Ms. Roberts appealed the deputy commissioner’s decision to the Full Commission on the day it was filed. 

At this point, defendants again stopped Ms. Roberts’ indemnity and medical compensation.  Ms. Roberts filed a motion to reinstate these benefits with the Chairman of the Commission pending her appeal to the Full Commission, who held the issue in abeyance until the Full Commission decided the matter.  The Chairman entered his order on February 2, 2006.  On March 12, 2007, the Full Commission reversed the deputy commissioner’s decision and ordered a reinstatement of both indemnity and medical compensation.  However, defendants appealed this decision to the North Carolina Court of Appeals.  Given the supersedeas that operates by virtue of N.C. Gen. Stat. § 97-86, defendants again did not reinstate Ms. Roberts’ workers’ compensation benefits during the appeal from the Full Commission.  As a consequence, Ms. Roberts also appealed, and her appeal focused on the Chairman’s order holding the issue in abeyance until resolution by the Full Commission.  

• Was Ms. Roberts’ appeal interlocutory? 
• Was the issue moot? 
• Was the deputy commissioner’s Opinion and Award enforceable, even though Plaintiff had appealed it to the Full Commission? 
• What are the consequences of the Roberts decision?

To read Sumwalt's comments and practice points on those questions, see his expert commentary article.