IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-982
Filed: 5 May 2020
North Carolina Industrial Commission, I.C. No. 15-048700
PAMELA LAUZIERE, Employee, Plaintiff,
v.
STANLEY MARTIN COMMUNITIES, LLC, Employer, and AMERICAN ZURICH INSURANCE COMPANY, Carrier, Defendants.
Appeal by Plaintiff from Opinion and Award entered 22 May 2018 by the Full
North Carolina Industrial Commission. Heard in the Court of Appeals 10 April 2019.
Lennon, Camak & Bertics, PLLC, by S. Neal Camak and Michael W. Bertics, for plaintiff-appellant.
Lewis & Roberts, P.L.L.C., by Mallory E. Lidaka and Bryan L. Cantley, for defendants-appellees.
MURPHY, Judge.
The North Carolina Industrial Commission’s (“the Commission”) conclusions
of law must be justified by its findings of fact and its findings of fact must be
supported by competent evidence. As a sanction, the Full Industrial Commission
dismissed Pamela Lauziere’s (“Lauziere”) claim with prejudice for failure to prosecute
after it found that the “monetary damages incurred by [Stanley Martin Communities
(“Stanley Martin”) and Zurich American Insurance, (together, “Defendants”)] as a
result of [Lauziere’s] conduct could not be recouped by Defendants even if ordered by
the Commission.” This finding is unsupported by the evidence because no competent LAUZIERE V. STANLEY MARTIN CMTYS, LLC
Opinion of the Court
evidence suggests Lauziere is unable to pay monetary damages or the Defendants are
unable to recoup their losses. Accordingly, we reverse and remand for further
proceedings.
BACKGROUND
Lauziere was a realtor for Stanley Martin. On 20 September 2015, Lauziere
allegedly sustained an injury while trying to manually shut a garage door at a model
home. Stanley Martin denied Lauziere’s claim for the alleged injuries.
Lauziere filed her request for hearing with the Commission on 30 November
2015. On 7 January 2016, Defendants sent Lauziere pre-hearing interrogatories and
a Request for Production of Documents. This first set of discovery requests asked for
information including medical information or documentation detailing Lauziere’s
medical history before and after the alleged injury. In February 2016, Lauziere
responded to Defendants’ first set of discovery requests. In part, her counsel
responded that certain medical records were unavailable and would be
“supplemented” at a later time. Following an impasse at a Commission ordered
mediation, Lauziere’s attorney was allowed to withdraw by order filed 10 March 2016.
On 16 March 2016, Defendants served a second set of discovery requests on the now
pro se Lauziere. The parties received notice the case was set for hearing on 3 May
2016.
-2- LAUZIERE V. STANLEY MARTIN CMTYS, LLC
On 22 April 2016, seven days after the 30-day deadline for Lauziere to file her
discovery responses, Defendants moved for an order compelling Lauziere to respond
to their second set of discovery requests. Three days later, Lauziere underwent major
lower back surgery, and she notified Defendants of her condition. Lauziere did not
file a response to Defendants’ Motion to Compel. On 28 April 2016, the deputy
commissioner continued the case off of his 3 May 2016 hearing docket. On 16 June
2016, in an email to Defendant’s counsel, Lauziere responded to Defendants’ second
set of discovery and requested her case be set on an expedited hearing docket. Six
days later, Lauziere emailed Defendants to confirm they received her 16 June 2016
correspondence, but Defendants responded alleging insufficiency.
Over a year passed.
On 13 June 2017, Defendants moved to dismiss with prejudice. Lauziere
responded to that motion within 24 hours. On 6 September 2017, a hearing was held
on the Motion to Dismiss with Prejudice, and Lauziere attended this hearing pro se.
Five days later, the Commission filed an Opinion and Award dismissing Lauziere’s
case with prejudice in accordance with Industrial Commission Rule 616(b).
Lauziere obtained legal counsel and appealed to the Full Industrial
Commission on 18 September 2017. On 22 May 2018, the Full Industrial Commission
filed an Opinion and Award affirming the decision dismissing Lauziere’s case with
prejudice. Plaintiff timely appeals.
-3- LAUZIERE V. STANLEY MARTIN CMTYS, LLC
ANALYSIS
“Appellate review of an award from the Industrial Commission is generally
limited to two issues: (i) whether the findings of fact are supported by competent
evidence, and (ii) whether the conclusions of law are justified by the findings of fact.”
Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) (citation
omitted). However, “the choice of sanctions is a matter reviewed for abuse of
discretion only.” Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11,
16, 510 S.E.2d 388, 392 (1999). Factors we have considered include the exclusivity
provision of the Workers’ Compensation Act, “the appropriateness of alternative
sanctions under Rule 37, the proportionality of dismissal to the actions meriting
sanction, and whether other statutory powers, such as holding a person in contempt
. . . , can effectuate the result desired by the imposition of sanctions.” Id. at 17, 510
S.E.2d at 393. We held, “when viewed in light of policy concerns of the Workers’
Compensation Act, dismissing [the plaintiff’s] case was an abuse of discretion”
“because it effectively terminate[d the plaintiff’s] exclusive remedy when other
less-permanent sanctions, such as civil contempt, were available to [the] Deputy
Commissioner.” Id.
The sole issue on appeal is whether the Commission erred in dismissing
Lauziere’s claim with prejudice. The Commission has “inherent judicial authority to
dismiss a claim with or without prejudice for failure to prosecute,” and this reflects
-4- LAUZIERE V. STANLEY MARTIN CMTYS, LLC
its “power to efficiently administer the Workers’ Compensation Act.” Lee v. Roses,
162 N.C. App. 129, 131, 590 S.E.2d 404, 406 (2004). Under Rule 616(b) of the
Industrial Commission Rules,
[u]pon notice and opportunity to be heard, any claim may be dismissed with or without prejudice by the Commission on its own motion or by motion of any party if the Commission finds that the party failed to prosecute or to comply with the rules in this Subchapter or any Order of the Commission.
11 N.C.A.C. 23A.0616(b) (2019).
Neither the Workers’ Compensation Act nor the Commission’s Rules provide
much direction as to when a finding of failure to prosecute is proper or what types of
sanctions are appropriate under the circumstances. Lentz v. Phil’s Toy Store, 228
N.C. App. 416, 421, 747 S.E.2d 127, 131 (2013). As a result, we look to Civil Procedure
Rule 41(b) for guidance. Id. Rule 41(b) “allows a defendant to move for dismissal of
a case for failure of plaintiff to prosecute, and requires a determination that ‘plaintiff
or his attorney manifests an intent to thwart the progress of the action or engages in
some delaying tactic.’” Id. (internal marks and alterations omitted) (quoting Lee, 162
N.C. App. at 132, 590 S.E.2d at 407). We have determined that, before the
Commission can dismiss with prejudice a workers’ compensation claim for failure to
prosecute under Rule 616(b), the Commission “must address . . . three factors in its
order.” Lee, 162 N.C. App. at 132-33, 590 S.E.2d at 407.
-5- LAUZIERE V. STANLEY MARTIN CMTYS, LLC
First, “whether the plaintiff acted in a manner which deliberately or
unreasonably delayed the matter.” Id. at 133, 590 S.E.2d at 407 (quoting Wilder v.
Wilder, 146 N.C. App. 574, 578, 553 S.E.2d 425, 428 (2001)). Second, “the amount of
prejudice, if any, to the defendant caused by the plaintiff’s failure to prosecute.” Id.
(internal alterations omitted). Third, “the reason, if one exists, that sanctions short
of dismissal would not suffice.” Id. at 133, 590 S.E.2d at 407. The Commission’s
“findings of fact on these factors are conclusive on appeal if there is competent
evidence to support its findings.” Lentz, 228 N.C. App. at 421, 747 S.E.2d at 131-32.
“Our courts,” however, “have stated that dismissal with prejudice is the most
severe sanction available to the court in a civil case, and thus, it should not be readily
granted.” Lee, 162 N.C. App. at 132, 590 S.E.2d at 407. “This principle applies
equally to the dismissal of a workers’ compensation claim at the Industrial
Commission since prosecution pursuant to the Workers’ Compensation Act is an
injured worker’s exclusive remedy.” Id. “Accordingly, the Full Commission err[s] as
a matter of law when it . . . affirm[s] the deputy commissioner’s order dismissing
plaintiff’s claim with prejudice for failure to prosecute without . . . the necessary
findings of fact and conclusions of law to support its order[,]” Id. at 133, 590 S.E.2d
at 408, and is an abuse of the Commission’s discretion. See Matthews, 132 N.C. App.
at 17, 510 S.E.2d at 393.
-6- LAUZIERE V. STANLEY MARTIN CMTYS, LLC
Further, a finding of the Commission based on legally incompetent evidence is
not conclusive. Penland v. Bird Coal Co., 246 N.C. 26, 30, 97 S.E.2d 432, 436 (1957);
see Ballenger v. Burris Indus., Inc., 66 N.C. App. 556, 568, 311 S.E.2d 881, 888 (1984)
(providing that we can declare when proffered evidence “does not constitute any
sufficient competent evidence on which to base a denial of” a workers’ compensation
claim). Upon our review of the Record—a record devoid of an evidentiary hearing—
the Commission erred on three grounds due to a lack of competent evidence.
To begin, Finding of Fact 24 is unsupported by evidence. The finding states,
[b]ased upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Defendants have been materially prejudiced by [Lauziere]’s failure to respond to discovery or otherwise prosecute her claim for a year. [Lauziere] has thereby delayed adjudication of this matter and deprived Defendants of any meaningful opportunity to investigate or present defenses to [Lauziere]’s claim or to direct care if the claim is ultimately determined on the merits and found to be compensable.
(Emphasis added). No competent evidence in the Record supports that Defendants
have been materially prejudiced. For instance, Defendants proffered nothing to show
how the delay impaired their ability to locate witnesses, medical records, treating
physicians, or any other data. As to the argument Defendants were prejudiced by
being unable to direct medical care, we have “long held that the right to direct medical
treatment is triggered only when the employer has accepted the claim as
compensable.” Yingling v. Bank of Am., 225 N.C. App. 820, 838, 741 S.E.2d 395, 407
(2013) (internal marks omitted). This principle still applies when an employer denies
-7- LAUZIERE V. STANLEY MARTIN CMTYS, LLC
a claim and then seeks dismissal with prejudice for failure to prosecute; an employer
cannot with one breath deny a worker’s compensation claim and with the next breath
cry prejudice. See id. at 839, 741 S.E.2d at 407; Kanipe v. Lane Upholstery, 141 N.C.
App. 620, 624, 540 S.E.2d 785, 788 (2000) (“But until the employer accepts the
obligations of its duty, i.e., paying for medical treatment, it should not enjoy the
benefits of its right, i.e., directing how that treatment is to be carried out.”).
Defendants denied Lauziere’s claim and had no right to direct her medical care.
Finding of Fact 24 is not supported by evidence.
Next, Finding of Fact 25 also lacks evidentiary support. The finding states,
[b]ased upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Defendants have borne substantial monetary expenses as a result of [Lauziere]’s behavior in this matter. Among other things, Defendants have been forced to maintain an open file and prepare and travel for anticipated litigation, including mediation and scheduled hearings.
(Emphasis added). Defendants may have maintained an open file as well as prepared
and traveled for anticipated litigation. But no evidence in the Record provides how
much money Defendants expended, how often they traveled, or how far they traveled,
let alone the unsupported conclusion Defendants bore “substantial” expenses. We do
not assume mere motions, orders, correspondence, or hearing transcripts can show
prejudice. These documents, standing alone, do not shed light on how much time or
money was expended. Contrast this with Lentz where “[c]ompetent evidence in the
record support[ed] the Commission’s finding that the file in plaintiff’s case [was]
-8- LAUZIERE V. STANLEY MARTIN CMTYS, LLC
‘replete with motions, correspondence, and hearing transcripts documenting the time
and effort defendants have expended related to defending plaintiff’s claim and
preparing for multiple hearings.’” Lentz, 228 N.C. App. at 424, 747 S.E.2d at 133
(emphasis added). The Record here, by contrast, is bereft of anything “documenting
the time and effort” Defendants expended over defending Lauziere’s claim. Id. No
evidence is referenced competent to provide an inference for the amounts of time,
effort, or money Defendants expended. Thus, Finding of Fact 25 is also unsupported
by evidence.
Finally, the Commission considered the sanctions prong of the Lee test and
listed another finding1 in Conclusion of Law 5:
A sanction short of dismissal with prejudice will not suffice in this case because no other sanction is appropriate given that: (1) [Lauziere] delays and continues to delay this matter, (2) Defendants’ ability to litigate and defend this claim has been irrevocably degraded by [Lauziere]’s actions and inactions, and (3) monetary damages incurred by Defendants as a result of [Lauziere]’s conduct could not be recouped by Defendants even if ordered by the Commission. Given the foregoing, sanctions short of dismissal could not provide appropriate or proportional relief to Defendants.
1“Whether a statement is an ultimate fact or a conclusion of law depends upon whether it is reached by natural reasoning or by an application of fixed rules of law.” Brown v. Charlotte- Mecklenburg Bd. of Ed., 269 N.C. 667, 670, 153 S.E.2d 335, 338 (1967). Although the Commission designated this statement a conclusion of law, it is a finding of fact. See Martinez v. W. Carolina Univ., 49 N.C. App. 234, 239, 271 S.E.2d 91, 94 (1980) (“[T]he designations ‘Finding of Fact’ or ‘Conclusion of Law’ by the commission” are not conclusive).
-9- LAUZIERE V. STANLEY MARTIN CMTYS, LLC
(Emphasis added). This suggests the Commission had evidence that Lauziere, if so
ordered, could not pay a monetary sanction. Such evidence does not exist in the
Record. At best, the Commission found that “Defendants have borne substantial
monetary expenses as a result of [Lauziere’s] behavior in this matter.” This may be
so, but neither this finding nor any evidence in the Record concerns Lauziere’s ability
to pay a monetary sanction or how costs to Defendants are otherwise un-recoupable.
Thus, the finding that Defendants’ “monetary damages . . . could not be recouped” is
unsupported by the evidence in the Record.
Additionally, there is no finding of fact, nor any competent evidence,
supporting the contention that “Defendants’ ability to litigate and defend this claim
has been irrevocably degraded.” This claim has not yet been reached on the merits,
and as outlined above there is no indication that Defendants cannot fully investigate
and defend this claim with the same ferocity that they otherwise would have upon
timely receiving the requested discovery. They seemingly will have the same access
to evidence, witnesses, and medical records they otherwise would have had if
discovery had been timely provided. The only irrevocably lost opportunity
Defendants have suffered that is discussed by the Commission is the potential “to
direct care if the claim is ultimately determined on the merits and found to be
compensable.” However, as discussed above, this is not a loss that could be properly
considered by the Commission as an employer has no right to direct care until they
- 10 - LAUZIERE V. STANLEY MARTIN CMTYS, LLC
accept the underlying claim as compensable. Even monetary losses in the form of
legal expenses as a result of Plaintiff’s delay seemingly could be recouped, as there is
no evidence suggesting otherwise. As a result, there are no findings of fact to support
the conclusion that the harm done to Defendants by Lauziere’s delay was irrevocable.
Ultimately, this means the only finding the Commission used to support its
conclusion that “[a] sanction short of dismissal with prejudice will not suffice” was
“[Lauziere] delays and continues to delay this matter[.]” This finding alone does not
support the conclusion that other sanctions would not have sufficed. The test in Lee
requires the analysis of all three factors, the first of which is there was an
unreasonable delay, and the third of which is sanctions short of dismissal with
prejudice are inadequate. If the Commission could satisfy this third factor simply by
stating that the Plaintiff has delayed the matter, essentially restating a part of the
first factor of the Lee test, then the third factor would be rendered mere surplusage.
“[T]he Commission’s findings are conclusory and not supported by competent
evidence.” See Shaw v. United Parcel Serv., 116 N.C. App. 598, 602, 449 S.E.2d 50,
53 (1994), aff’d, 342 N.C. 189, 463 S.E.2d 78 (1995). No competent evidence in the
Record implies that Defendants were prejudiced by the delay, were wrongfully
deprived of a right to direct care, were burdened with substantial monetary expenses
or were unable to recoup the same.
- 11 - LAUZIERE V. STANLEY MARTIN CMTYS, LLC
To prevent future inefficiency, delay, or harm to the parties, we address the
utility of available sanctions under the Workers’ Compensation Act in these
circumstances. Failure to comply with an order to compel is not the same as failure
to prosecute, and evidence applicable to the former may be inapplicable to the latter.
Without the necessary evidence or findings, other less-permanent sanctions remained
available, such as civil contempt. See N.C.G.S. § 97-80(g) (2019) (“The Commission
or any member or deputy thereof shall have the same power as a judicial officer . . .
to hold a person in civil contempt . . . for failure to comply with an order of the
Commission, Commission member, or deputy”); see, e.g., In re Hayes, 200 N.C. 133,
141, 156 S.E. 791, 795 (1931) (discussing “the power to adjudge [a] witness in
contempt and to punish for such contempt”). This is not to say that an order for civil
contempt is needed before the Commission can dismiss with prejudice for failure to
prosecute. However, “in light of the policy behind North Carolina’s Workers’
Compensation Act, to provide a swift and certain remedy to an injured worker[,] to
ensure a limited and determinate liability for employers[,]” and to furnish Lauziere’s
“exclusive remedy,” id. at 16-17, 510 S.E.2d at 393, the Commission, when applying
the Lee test, must ensure its conclusions are justified by the findings of fact and those
findings of fact are supported by competent evidence. See Chambers, 360 N.C. at 611-
12, 636 S.E.2d at 555 (declaring that “[i]f the conclusions of the Commission are based
upon a deficiency of evidence or misapprehension of the law, the case should be
- 12 - LAUZIERE V. STANLEY MARTIN CMTYS, LLC
remanded so that the evidence may be considered in its true legal light”) (internal
marks, alterations, and citations omitted).
CONCLUSION
“[T]he Full Commission erred as a matter of law when it . . . affirmed the
deputy commissioner’s order dismissing plaintiff’s claim with prejudice for failure to
prosecute without . . . the necessary findings of fact and conclusions of law to support
its order.” Lee, 162 N.C. App. at 133, 590 S.E.2d at 408. “The order of dismissal is
reversed and this cause remanded to the Industrial Commission for proceedings
consistent with this opinion.” Id. at 133-34, 590 S.E.2d at 408.
REVERSED AND REMANDED.
Judge DILLON concurs in part, dissents in part, with separate opinion.
Judge HAMPSON concurs.
- 13 - No. COA18-982 – Lauziere v. Stanley Martin Cmtys, LLC
DILLON, Judge, concurring in part and dissenting in part.
The Full Commission has entered an order dismissing Plaintiff’s workers’
compensation claim. The majority concludes that the Full Commission’s order must
be reversed and remanded because several of the Commission’s findings are not
supported by the evidence and that the remaining findings do not support an order
of dismissal. I conclude, however, that the appropriate mandate is for the Full
Commission’s order to be vacated and remanded for further proceedings.2 I believe
that it would not be an abuse of discretion for the Full Commission to have ordered
the dismissal based on its findings that I conclude are supported by the evidence.
(The majority concludes that several of the Commission’s findings are not supported
by the evidence. I, however, agree with the majority only with respect to some of
these findings.)
In any event, I do not believe it would be appropriate for our Court to simply
affirm the Full Commission based on the supported findings because we cannot know
2 The majority’s mandate is “reversed and remanded.” “Reverse” and “vacate” are often used interchangeably by appellate judges. There is, indeed, some gray areas as to when “reverse” is the appropriate mandate and when “vacate” may be more appropriate. To me, “vacate” generally suggests (absent any clearer instructions in the opinion) that an order is being eliminated but not being replaced with a contrary order, so that “vacate and remand” generally suggests that the trial court is to reconsider the matter, but still could reach the same result. “Reverse,” though, suggests that the trial court got it wrong, so that “reverse and remanded” suggests that the trial court either enter a new order as directed or reconsider the matter, but may not reach the same result. Admittedly, I may not have always been consistent in my usage of these terms. In any event, in the present case, I conclude that the trial court’s order must be vacated, so that on remand the trial court could still reach the same result, dismissal, as I believe that there are other findings in the order to support dismissal. The majority, though, states that the trial court’s order to dismiss was incorrect “as a matter of law” because it failed to make “the necessary findings of fact and conclusions of law to support its order.” LAUZIERE V. STANLEY MARTIN CMTYS, LLC
DILLON J., concurring in part and dissenting in part
how the Commission would have exercised its discretion absent the unsupported
findings. Therefore, my vote is to vacate and remand, such that the sanction of
dismissal may still be considered by the Commission on remand.
1. Background
The findings, supported by the evidence, tend to show as follows:
Plaintiff, a residential real estate broker, seeks workers’ compensation
benefits, alleging that in September 2015, she suffered injuries to her back, neck,
bilateral knees, and hips while trying to manually close a garage door at a home.
Plaintiff, however, suffered injuries prior to the garage door incident on a
number of occasions. For instance, in June 2015, just three months prior to the
garage door incident, Plaintiff was injured in an automobile accident, for which she
received medical treatment. Also, Plaintiff had previously sought workers’
compensation benefits for back and knee injuries, unrelated to her present claim.
Defendants initially denied liability for Plaintiff’s September 2015 injuries,
pending their investigation of the matter. As part of their investigation, Defendants
sought discovery from Plaintiff of her medical history to determine whether, and to
what extent, Plaintiff was injured by the garage door incident. However, Plaintiff
has repeatedly failed to fully comply with Defendants’ discovery requests, even
though she has been compelled to do so by the Commission.
2 LAUZIERE V. STANLEY MARTIN CMTYS, LLC
In the meantime, Plaintiff has undergone medical treatment at her own
direction, which included major back surgery. Further, Plaintiff took no action to
prosecute this matter for over a year, while Defendants continued to seek discovery
of Plaintiff’s medical history. Accordingly, in June 2017, Defendants moved to
dismiss Plaintiff’s claim.
In September 2017, the Deputy Commission dismissed Plaintiff’s claim.
Plaintiff appealed to the Full Commission. In its 2018 Opinion and Award, the Full
Commission, agreeing with the Deputy Commissioner, ordered the matter dismissed
with prejudice.
II. Analysis
The majority recognizes that the Full Commission, in the exercise of its
discretion, may dismiss a matter where the Plaintiff engages in delay tactics.
The majority also recognizes that the Commission must consider three factors
before dismissing a matter, citing Lee v. Roses, 162 N.C. App. 129, 590 S.E.2d 404
(2004) and Lentz v. Phil’s Toy Store, 228 N.C. App. 416, 747 S.E.2d 127 (2013).
First, the Full Commission must consider “whether the plaintiff acted in a
manner which deliberately or unreasonably delayed the matter[.]” Lee, 162 N.C. App.
at 133, 590 S.E.2d at 407. The majority is not contending that this prong was not
satisfied. Indeed, the Commission did consider this factor, determining that Plaintiff
had caused the “unreasonable delay[]” and that she continued to engage in the
3 LAUZIERE V. STANLEY MARTIN CMTYS, LLC
“unreasonable delay” of adjudication of the matter. And this determination could
certainly be inferred from the findings and the evidence. For instance, the
Commission found that Plaintiff repeatedly failed to fully comply with the discovery
requests, even after being ordered by the Commission to do so. As found by the
Commission, Plaintiff admitted to being lax in responding to the discovery requests
and that she did nothing for over a year to prosecute her claim, all the while seeking
medical treatment at her own direction.
Second, under Lee, the Commission must consider “the amount of prejudice, if
any, to the defendant [caused by the plaintiff’s failure to prosecute][.]” Id. at 133, 590
S.E.2d at 407. The order shows that the Commission considered this factor. The
majority contends that certain findings in the order supporting the Commission’s
findings as to this prong are not supported by the evidence. I disagree.
The Commission expressly found, in Finding 24, that Defendants were
“materially prejudiced by Plaintiff’s failure to respond to discovery and otherwise
prosecute her claim for a year” in that Plaintiff’s actions deprived Defendants of “any
meaningful opportunity to investigate . . . or to direct [Plaintiff’s] care[.]” The
majority, though, states that there is no evidence that Defendants were materially
prejudiced, correctly noting that an employer’s ability to direct an employee’s medical
care is triggered only after the employer has accepted liability.
4 LAUZIERE V. STANLEY MARTIN CMTYS, LLC
However, this misses the point that the right of an employer who has initially
denied liability to direct care can still be subsequently triggered once the employer
accepts liability. See Kanipe v. Lane Upholstery, 141 N.C. App. 620, 624, 540 S.E.2d
785, 788 (2000). Here, the Commission essentially found that Plaintiff’s improper
conduct caused Defendants to lose its opportunity to make an informed decision to
trigger their right to direct care.
Certainly, an employer should not be required to accept liability right away
before it has investigated an alleged accident. For example, the General Assembly
has provided in N.C. Gen. Stat. § 97-27(a) that an employer has the right to require
its employee to submit to an examination, the purpose of which, according to our
Court, “is to enable the employer to ascertain whether the injury is work-related or
not and thus whether the claim is indeed compensable.” Id. at 624, 540 S.E.2d at
788. In the same way, an employer has the right to discoverable medical records to
ascertain whether an injury, in fact, was the result of a work-place accident.
To this end, an employee is required to provide her employer with the
discoverable information necessary for the employer to make an informed decision
whether to accept liability and exercise its right to direct care. This obligation is
similar to an employee’s statutory obligation to provide timely notice of her accident,
the purpose of which (as described by our Supreme Court) “allows the employer to
provide immediate medical diagnosis and treatment with a view to minimiz[e] the
5 LAUZIERE V. STANLEY MARTIN CMTYS, LLC
seriousness of the injury, and it facilitates the earliest possible investigation of the
circumstances surrounding the injury.” See, e.g., Booker v. Duke Med. Ctr., 297 N.C.
458, 481, 256 S.E.2d 189, 204 (1979). Indeed, our Court has recognized in such
situations that “[p]ossible prejudice occurs where the employer is not able to provide
immediate medical diagnosis and treatment with a view to minimiz[e] the
seriousness of the injury and where the employer is unable to sufficiently investigate
the incident causing the injury.” Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 173,
573 S.E.2d 703, 706 (2002) (emphasis added).
Here, given Plaintiff suffered prior injuries and given the benign nature of the
accident (closing a garage door) as the cause of Plaintiff’s extensive injuries, it was
certainly reasonable for Plaintiff’s employer to require access to her discoverable
medical records before accepting liability for her claimed new injuries. Plaintiff,
though, thwarted Defendants’ ability to investigate by withholding her medical
records for years, all the while directing her own care. If those records demonstrate
that Plaintiff did not suffer any further injury due to the garage door incident, then
the dismissal by the Commission is of no harm to Plaintiff, as she would lose anyway.
However, if the records are, indeed, favorable to Plaintiff’s case, then Defendants
have lost the opportunity to accept liability based on a knowledge of those records,
and to direct Plaintiff’s care these past several years.
6 LAUZIERE V. STANLEY MARTIN CMTYS, LLC
Further, I disagree with the majority that Finding 25, supporting the second
Lee factor is not supported by the evidence. Specifically, the Commission found that
Defendants had “borne substantial monetary expense” pursuing Plaintiff’s medical
records. Admittedly, as the majority points out, there is no evidence in the record as
to the precise amount of money or time Defendants actually spent chasing discovery
for two years. However, the Commission made no finding as to the precise money or
time spent. What the Commission did find – that Defendants spent some unknown
amount of resources that was “substantial” – can be inferred from the evidence. For
instance, there is evidence that Defendants’ attorneys had to prepare a second set of
discovery requests when Plaintiff’s responses to the first set were incomplete;
Defendants’ attorneys had to seek (successfully after a hearing on the matter) an
order compelling Plaintiff to fully comply with the discovery request; and after
Plaintiff continued directing her own medical treatment without prosecuting her
claim for over a year and without complying with the Commission’s order to compel,
Defendant’s attorneys sought a dismissal, first before the Deputy Commissioner, and
then, after preparing a brief for attending a hearing, before the Full Commission.
Finding 25 is similar to a finding made in Lentz sustained by our Court in
affirming the Commission’s order dismissing the claim of the plaintiff in that case.
In Lentz, the Commission found that “Plaintiff’s failure to prosecute this claim has
resulted in prejudice to defendants, who have expended considerable time and
7 LAUZIERE V. STANLEY MARTIN CMTYS, LLC
resources attempting to defend the claim. [Defendants] have repeatedly prepared for
hearing and appeared at hearings with witnesses, and plaintiff has failed to appear,
even when ordered to appear.” 228 N.C. App. at 423, 747 S.E.2d at 132.
I have reviewed the Lentz record on appeal, and I found nothing in that record
showing the exact amount of time or money the defendants spent. The Commission’s
finding that the defendants expended “considerable” time and resources, though, was
sustained by our Court: “On this record, we determine that the Commission’s
findings of fact were supported by competent evidence and its conclusions of law were
supported by its findings of fact.” Id. at 423, 747 S.E.2d at 132.
I see no difference between “considerable,” as used by the Commission in Lentz,
and “substantial,” as used by the Commission here. Accordingly, I disagree with the
majority and conclude that the record supports Finding 25.
Under the third Lee prong, the Full Commission must consider “the reason, if
one exists, that sanctions short of dismissal would not suffice.” Lee, 162 N.C. App. at
133, 590 S.E.2d at 407. Here, the Full Commission expressly considered this factor.
It determined that lesser sanctions would not suffice, citing three separate reasons:
(1) Plaintiff delayed in prosecuting her claim for over a year; (2) Defendants’ ability
to litigate and defend the claim was “irrevocably degraded” by Plaintiff’s delay and
by her failure to fully comply with discovery; and (3) Defendants had incurred
8 LAUZIERE V. STANLEY MARTIN CMTYS, LLC
litigation expenses due to Plaintiff’s conduct Defendants could never recoup from
Plaintiff were Plaintiff ordered to pay Defendants for these expenses.
I disagree with the majority’s conclusion that there is no evidence that
Defendants’ ability to litigate and defend has been “irrevocably degraded,” as it can
be inferred from the record that Plaintiff has undergone extensive treatment without
Defendants’ direction and that Plaintiff has delayed the matter for the purpose of
completing her treatment before having to reengage with Defendants in this matter.
I agree, however, with the majority that there is no evidence regarding
Plaintiff’s inability to pay Defendants’ expenses if ordered to do so. However, in my
view, it would not be an abuse of discretion on remand for the Commission to
otherwise determine that lesser sanctions would still be inappropriate based on the
Commission’s other findings.
III. Conclusion
I may not have made all of the findings regarding Plaintiff’s conduct, as made
by the Commission or have exercised discretion in the same way. But, here, the
Commission is the factfinder and is empowered with discretion to order a dismissal.
Such order should be affirmed where it cannot be said that the Commission abused
its discretion when its decision is supported by the findings and evidence.
But, here, not all of the Commission’s findings are supported by the evidence.
I do conclude, however, that the remaining findings are sufficient to support a
9 LAUZIERE V. STANLEY MARTIN CMTYS, LLC
dismissal in the exercise of discretion. However, I cannot conclude that the
Commission would reach the same result based on the remaining findings. Therefore,
my vote is to vacate the dismissal order and remand the matter for further
proceedings and that, on remand, the Commission, in its discretion, may order
dismissal or order lesser sanctions.