Norton v. Waste Management, Inc.

• Court: North Carolina Industrial Commission
• Decided: February 11, 2002
• Docket: I.C. NO. 703732
• Status: Published

Opinion

*********** Based upon the record before the Full Commission, the Full Commission finds facts as follows:

1. On March 20, 2000, the Full Commission filed an Opinion and Award that provided, among other things, that the defendants shall pay the plaintiff compensation at the rate of $384.02 per week from April 4, 1995 and requiring that the amount accrued to date be paid in a lump sum with interest at the rate of 8% per annum.

2. Defendants filed a timely Notice of Appeal to the North Carolina Court of Appeals and the matter was heard without oral arguments on August 15, 2001.

3. On October 2, 2001, the Court of Appeals filed its unanimous decision affirming the Opinion and Award of the Full Commission.

4. Pursuant to Rule 15(b) of the North Carolina Rules of Appellate Procedure, defendants had 15 days, plus 1 day, from the mandate of the Court of Appeals to file and serve their petition for discretionary review with the North Carolina Supreme Court.

5. Defendants' time to file and serve their petition for discretionary review with the Supreme Court expired on October 17, 2001 without any petition being filed.

6. Pursuant to Section 97-18(e) of the North Carolina General Statutes, defendants had 10 days from the date of expiration of the time to file and serve their petition for discretionary review with the Supreme Court within which to pay the first installment of compensation payable under the terms of the Opinion and Award of the Full Commission.

7. Pursuant to Section 97-18(g) of the North Carolina General Statutes, defendants had 14 days from the expiration of the 10 day period as provided in North Carolina General Statute 97-18(e) in which to pay the first installment of compensation payable under the terms of the Opinion and Award of the Full Commission before being liable for a penalty of an additional 10% of the unpaid balance of the past due compensation.

8. Defendants had a total of 40 days from the date the Court of Appeals filed its mandate Affirming the Opinion and Award of the Full Commission or until November 12, 2001 within which to pay the plaintiff the past due compensation before being liable for a penalty of an additional 10% of the unpaid balance of the past due compensation.

9. As of October 23, 2001, the total amount of past due compensation, including interest, owed to the plaintiff from April 5, 1995 was $144,297.78.

10. On October 25, 2001, plaintiff's Counsel sent a letter and amortization schedule to defendants' Counsel, via Fax and US Mail, advising the defendants of the total amount of past due compensation owed to the plaintiff. A copy of the letter and amortization schedule was attached to plaintiff's verified Motion as Exhibit A.

11. On or about November 2, 2001, the plaintiff's Counsel left a telephone voice mail message with the defendants' Counsel requesting that the defendants provide an update as to the status of the payment of the past due compensation to the plaintiff.

12. As of November 19, 2001, the date of the filing and service of plaintiff's motion, neither the plaintiff nor his Counsel has received a response to the letter or telephone voice mail message to the defendants' Counsel.

13. As of the date of the filing and service of plaintiff's motion, neither the plaintiff nor his counsel has received any monies from the defendants representing full or partial payment of the past due compensation and interest owed to the plaintiff.

14. As of the date of the filing and service of plaintiff's motion, the total amount of past due compensation, including interest, owed to the plaintiff from April 5, 1995 to the present is $146,301.83. A copy of the amortization schedule indicating the current amount due is attached to this verified Motion as Exhibit B.

15. The defendant is liable for a penalty of an additional $14,630.18 for failure to timely pay the plaintiff the past due compensation as Ordered by the Full Commission and Affirmed by the Court of Appeals.

IT IS, THEREFORE, ORDERED:

1. Defendants shall pay a penalty of $14,630.18 for failure to timely pay the plaintiff the past due compensation as Ordered;

2. That in addition to the penalty the defendants are Ordered to pay the plaintiff the total amount of the past due compensation, including interest, through the date of the filing and service of this Motion.

3. Defendant are Ordered to pay a reasonable attorney's fee of $750.00 to the plaintiff for the time and expense incurred in filing and pursuing plaintiff's motion.

4. This Order may be docketed as a Judgment and execution may be issued thereon.

5. Defendants shall pay the costs.

This 22nd day of January 2002.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER