Lennon v. A. L. Shaw and Sons Trucking, Inc.

Opinion

The undersigned have reviewed the award based upon the record of the proceedings before the deputy commissioner.

The appealing party has shown good grounds to reconsider the evidence of record as it now exists. Upon this reconsideration, the undersigned have come to the conclusion that the issues were not allowed to be sufficiently addressed at the initial hearing level so as to provide a competent or convincing basis in fact upon which a final opinion and award can ultimately be based as to whether a compensable injury by accident occurred.

In particular, the medical expert evidence as it relates to causation was not addressed and needs further development. The issue of whether plaintiff is an "employee" under the meaning of the Workers' Compensation Act, including testimony with direct and cross-examination of witnesses as to this issue, needs further development.

Further, it appears that there was never a final closing by order of the initial record before an Opinion and Award was rendered in this matter. To prevent manifest injustice which could be caused by confusion of the parties as to when evidence would be accepted, the undersigned feel that a new hearing (denovo) is in order.

Accordingly, the October 10, 1997 Opinion and Award by Deputy Commission Hedrick is HEREBY VACATED, and the matter is HEREBY REMANDED for a hearing de novo, on the merits.

As was discussed with the parties at the oral arguments of this matter, the undersigned feel this case is ripe for mediation at this time, and that mediation should be attempted first before another full hearing occurs.

Therefore, the parties are HEREBY ORDERED into mediation at this time in an attempt to settle disputed matters short of the formal rehearing. Should mediation reach an impasse, a full rehearing on the merits shall be scheduled in Columbus County at the earliest possible convenience.

Final costs shall abide the conclusion of this matter.

This the 11th day of June, 1998.

S/ ________________ J. HOWARD BUNN, JR. CHAIRMAN

CONCURRING:

S/ ______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

S/ ______________________ BERNADINE S. BALLANCE COMMISSIONER

JHB/kws