Oneal v. Selco Construction, Inc.

North Carolina Industrial Commission

Oneal v. Selco Construction, Inc.

North Carolina Industrial Commission·Decided February 28, 2001·No. I.C. NO. 553343·Published

Opinion

Defendant filed a motion to dismiss plaintiffs appeal to the Full Commission based on plaintiffs failure to file notice of appeal within 15 days as required by N.C. Gen. Stat. 97-85. By letter dated 11 May 2000 and filed with the Commission on 11 May 2000, plaintiff notified the Commission of his desire to appeal the Deputy Commissioners Opinion and Award.

The Commission has authority to grant plaintiff relief from the Deputy Commissioners Opinion and Award, even when the right to appeal has been lost. Moore v. City of Raleigh, 135 N.C. App. 332, ___ S.E.2d ___ (1999). However, plaintiff failed to show grounds for setting aside the Deputy Commissioners Opinion and Award based on excusable neglect or any other basis justifying relief. Id. Rather, if the Full Commission had jurisdiction to consider plaintiffs appeal, the Commission would find that the evidence failed to show that plaintiff was disabled within the meaning of the North Carolina Workers Compensation Act at any time after his injury by accident. N.C. Gen. Stat. 97-2(6); 97-29. The undersigned further note that plaintiff was represented by counsel at the hearing before the Deputy Commissioner.

As plaintiff failed to file a notice of appeal with the Commission within 15 days of notice of the Deputy Commissioners Opinion and Award, and has failed to come forward with grounds justifying relief from that Opinion and Award or otherwise vesting jurisdiction with the Commission, plaintiffs appeal is hereby DISMISSED.

This ___ day of January 2001.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

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Defendant filed a motion to dismiss plaintiffs appeal to the Full Commission based on plaintiffs failure to file notice of appeal within 15 days as required by N.C. Gen. Stat. 97-85. By letter dated 11 May 2000 and filed with the Commission on 11 May 2000, plaintiff notified the Commission of his desire to appeal the Deputy Commissioners Opinion and Award.

The Commission has authority to grant plaintiff relief from the Deputy Commissioners Opinion and Award, even when the right to appeal has been lost. Moore v. City of Raleigh, 135 N.C. App. 332, ___ S.E.2d ___ (1999). However, plaintiff failed to show grounds for setting aside the Deputy Commissioners Opinion and Award based on excusable neglect or any other basis justifying relief. Id. Rather, if the Full Commission had jurisdiction to consider plaintiffs appeal, the Commission would find that the evidence failed to show that plaintiff was disabled within the meaning of the North Carolina Workers Compensation Act at any time after his injury by accident. N.C. Gen. Stat. 97-2(6); 97-29. The undersigned further note that plaintiff was represented by counsel at the hearing before the Deputy Commissioner.

As plaintiff failed to file a notice of appeal with the Commission within 15 days of notice of the Deputy Commissioners Opinion and Award, and has failed to come forward with grounds justifying relief from that Opinion and Award or otherwise vesting jurisdiction with the Commission, plaintiffs appeal is hereby DISMISSED.

This ___ day of January 2001.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

Oneal v. Selco Construction, Inc., (N.C. Super. Ct. 2001).

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Opinion

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