Metropol v. Scholl's Mechanical, Inc.

• Court: North Carolina Industrial Commission
• Decided: September 14, 2010
• Docket: I.C. NO. 293277.
• Status: Published

Opinion

*********** EVIDENTIARY MATTERS On May 24, 2010, plaintiff filed a Motion to Receive Additional Evidence. Defendants did not object to plaintiff's motion. In the discretion of the Full Commission, plaintiff's Motion to Receive Additional Evidence dated May 21, 2010 and filed May 24, 2010 is hereby allowed.

*********** ORDER 1. Plaintiff sustained an admittedly compensable injury to his right ankle on December 13, 2001 arising out of and in the course and scope of his employment.

2. Defendants filed a Form 33 Request for Hearing on December 23, 2008 citing that the parties have been unable to agree because

Employee-Plaintiff has failed to execute a Form 26A Employer's Admission of Employee's Right to Permanent Partial Disability and the Form 25A Certification of Material Medical and Vocational Reports forwarded to him, through his attorney, on or about November 25, 2008 for payment of permanent partial disability benefits owed based upon the thirty-three percent (33%) permanent partial disability rating assigned to Employee-Plaintiff's foot by his treating physician.

Deputy Commissioner Rideout heard this matter on June 19, 2009 and filed an Opinion and Award on February 16, 2010. The Opinion and Award was amended at the request of the parties on March 11, 2010.

3. Subsequent to the March 11, 2010 Amended Opinion and Award by Deputy Commissioner Rideout, defendants by way of an Industrial Commission Form 62 dated April 6, 2010 reinstated plaintiff's temporary total disability compensation effective March 18, 2010.

4. As plaintiff has not yet reached maximum medical improvement, is out of work, and is currently receiving temporary total disability benefits, the issues before the deputy commissioner which were the subject of the February 16, 2010 and the March 11, 2010 Opinion and Awards are now moot as agreed by the parties by the filing of the Form 62.

5. For the foregoing reasons it is hereby ordered that the February 16, 2010 and the March 11, 2010 Opinion and Awards are hereby vacated.

6. An attorney's fee in the amount of twenty-five percent (25%) is approved for plaintiff's counsel and will be deducted from the amounts owed plaintiff and paid directly to plaintiff's counsel. Defendants shall consult with plaintiff's counsel prior to the resumption of payment of attorney fees.

7. Defendants shall pay the costs.

This the 3rd day of September 2010.

S/__________ STACI T. MEYER COMMISSIONER

CONCURRING:

S/__________ BERNADINE S. BALLANCE COMMISSIONER

S/__________ CHRISTOPHER SCOTT COMMISSIONER