Marshall v. Pleasants

• Court: North Carolina Industrial Commission
• Decided: September 7, 2007
• Docket: I.C. NOS. 365891 PH-0983.
• Status: Published

Opinion

*********** This matter was originally heard before Deputy Commissioner George R. Hall, III on February 12, 2004, in Raleigh, North Carolina; however, defendant was not present at this hearing. Deputy Commissioner Hall filed an Opinion and Award on April 12, 2004, finding that plaintiff sustained a compensable injury by accident entitling him to temporary total disability compensation in the amount of $293.48 per week from August 26, 2003 until December 23, 2003, permanent partial disability compensation at the same rate for 37.5 weeks and payment of all unpaid medical bills. Deputy Commissioner Hall also assessed a civil penalty pursuant to N.C. Gen. Stat. § 97-94(b) against defendant in the amount of $4,900.00, for failure to maintain workers' compensation insurance and a civil penalty pursuant N.C. Gen. Stat. § 97-94(d) in the amount of $17,376.83. Defendant did not appeal from this Opinion and Award. Defendant failed to timely comply with the Opinion and Award of Deputy Commissioner Hall and plaintiff's counsel subsequently filed a Motion for Order to Show Cause for noncompliance on July 23, 2004. On October 29, 2004, Chief Deputy Commissioner Stephen T. Gheen filed an Order requiring defendant to appear before former Deputy Commissioner Lorrie L. Dollar to show cause as to why he should not be held in civil contempt for willful failure to comply with the April 12, 2004 Order. Defendant failed to appear at the hearing before Deputy Commissioner Dollar and she filed an Amended Opinion and Award and Arrest Order on December 20, 2004. Defendant appealed from this decision to the Full Commission. On July 13, 2006, the Full Commission entered an Opinion and Award affirming the decision of Deputy Commissioner Dollar. The Full Commission thereafter reconsidered the Opinion and Award and determined by Order dated March 6, 2007, that a hearing would be necessary to determine the rights of the parties.

At the time of or subsequent to entry of the March 6, 2007 Order on reconsideration by the Full Commission, defendant entered into the custody of the Department of Correction. The Full Commission has now been advised that defendant is no longer in State custody and the hearing ordered on March 6, 2007, should now be scheduled.

IT IS THEREFORE ORDERED that this matter is reopened and reset for hearing before a Deputy Commissioner on defendant's failure to appear pursuant to the 29 October 2004 Order to Show Cause entered by Chief Deputy Commissioner Stephen Gheen. The Deputy Commissioner shall collect the evidence and forward it to the Full Commission for decision and appoint an attorney for defendant if it appears that incarceration could result from defendant's conduct. The parties will receive calendar notification of the date, time and place of hearing from the Deputy Commissioner. Defendant is directed to appear and defendant shall notify the Full Commission within 15 days from the date of this Order of his current mailing address.

This the __ day of August 2007.

S/________________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/________________________ DANNY LEE McDONALD COMMISSIONER

S/________________________ DIANNE C. SELLERS COMMISSIONER