Volume 132 — North Carolina Court of Appeals Reports

<bold>1. Workers' Compensation — Rules — dismissal for</bold> <bold>violation</bold> <block_quote> The Industrial Commission did not err in a workers' compensation action when it vacated the dismissal of plaintiff's case by a Deputy Commissioner based upon plaintiff's violation of an order of the Deputy Commissioner and her failure to appear for her hearing. The Commission, its members, and its deputies may order dismissal of an action or proceeding for violation of the Workers' Compensation Rules, but such an order must specifically enumerate which of the Rules have been violated and what actions constitute the violations. The Deputy Commissioner here<page_number>Page 12</page_number> made no findings of a Rules violation; even assuming that there was a violation and a proper order specifying the violation, dismissing this case was an abuse of discretion when viewed in light of the policy concerns of the Worker's Compensation Act because it effectively terminates plaintiff's exclusive remedy when other less permanent sanctions were available.</block_quote> <bold>2. Workers' Compensation — course of treatment —</bold> <bold>direction by employer</bold> <block_quote> It was noted in a workers' compensation action that the Industrial Commission had based an order on a flawed analysis of N.C.G.S. § <cross_reference>97-25</cross_reference>; although the Commission reasoned that employers cannot make motions to designate a treating physician because the statute expressly grants employees the power to request a change in their treating physician and does not make a similar grant to employers, the purpose of the statute is to authorize the Commission to direct a course of treatment and penalize non-compliance by suspending compensation. The statute was not enacted to create and exclusively define the rights of employees and employers with regard to the course of treatment.</block_quote> <bold>3. Workers' Compensation — course of treatment —</bold> <bold>employer's motion — reasonable grounds</bold> <block_quote> It was noted in a workers' compensation action that an employer's motion to direct the course of treatment must be warranted by reasonable grounds. The motion in this case was well-grounded in fact and demonstrated a sufficient basis to support the challenge to the current treatment regimen advocated by plaintiff; therefore, defendant's motion was appropriate and the Executive Secretary's designation of a treating physician pursuant to the motion is within the purview of N.C.G.S. § <cross_reference>97-25</cross_reference>.</block_quote> <bold>4. Worker's Compensation — necessity for hearing —</bold> <bold>procedural due process</bold> <block_quote> The Industrial Commission erred in a workers' compensation action by not conducting a hearing or remanding for an evidentiary hearing where defendant was unable to offer evidence supporting its case due to a procedural history involving a change of treating physician which was not appealed and hearings resulting in a suspension of compensation which were appealed. The evidence, including the transcript from the hearing below, is insufficient to resolve all the issues and the key finding resulting in the reinstatement of the award was not supported by competent<page_number>Page 13</page_number> evidence in the record; additionally, defendant's procedural due process rights were offended in that the Commission eliminated any opportunity for defendant to meet its burden of proof. Finally, on remand it is the responsibility of the full Commission to conduct the hearing.</block_quote> <bold>5. Workers' Compensation — expenses of attending future</bold> <bold>hearings — improper</bold> <block_quote> The Industrial Commission erred in a workers' compensation action by taxing the expenses necessary for plaintiff to attend future hearings where defendant had reasonable grounds for its motion and application to suspend compensation; furthermore, the Commission exceeded its statutory authority in ordering payment of future travel expenses by assessing costs not arising from any hearing.</block_quote>

<bold>1. Administrative Law — agency decision — standard of review</bold> <block_quote> When a superior court reviews an agency decision pursuant to the Administrative Procedure Act (APA), the court essentially functions as an appellate court; as such, the duty of the superior court is not to make findings of fact but to apply the appropriate standard of review to the findings and conclusions of the underlying tribunal.</block_quote> <bold>2. Administrative Law — local appointing authority employee —</bold> <bold>contested case under APA</bold> <block_quote> Although local appointing authorities are not "agencies" under the APA, their employees are subject to the provisions of the State Personnel Act and may commence a contested case hearing under the APA, N.C.G.S. Ch. 150B.</block_quote> <bold>3. Administrative Law — agency decision — standard of review</bold> <block_quote> When a petitioner alleges that an agency decision was either unsupported by the evidence or arbitrary and capricious, the superior court applies the "whole record test" to determine whether the agency decision was supported by substantial evidence contained in the entire record; when petitioner alleges that the agency decision was based on error of law, the reviewing court must examine the record de novo as though the issue had not yet been considered by the agency.</block_quote> <bold>4. Public Officers and Employees — warning and suspension —</bold> <bold>supporting evidence</bold> <block_quote> Substantial evidence in the record as a whole supported a decision by the local appointing authority upholding a written warning to and suspension of an employee who assisted in the<page_number>Page 543</page_number> care of emotionally and/or physically disabled residents of a group facility based upon his failure to use the proper modified therapeutic hold consistent with his training in placing a difficult resident in a shower and his failure to ask for assistance in handling the resident as he had been instructed.</block_quote> <bold>5. Public Officers and Employees — local appointing authority —</bold> <bold>employee grievance — opportunity to be heard</bold> <block_quote> A local appointing authority's employee was not denied an opportunity to be heard prior to adverse action being taken against him where the record shows that he had ample opportunity to dispute the accusations against him and to present to the authority his argument as to why a written warning should not remain in his file.</block_quote> <bold>6. Administrative Law; Public Officers and Employees — employee</bold> <bold>grievance — communications between employer's counsel and</bold> <bold>appeals committee — due process</bold> <block_quote> Petitioner's due process right to an impartial hearing was not violated by communications between respondent's counsel and respondent's appeals committee during the initial appeal process where such communications occurred only during the investigatory process and hearing prior to petitioner's filing a contested case under the APA.</block_quote>

<bold>1. Discovery — compelling second deposition — cost of first</bold> <bold>deposition — sanction</bold> <block_quote> The trial court had express authority pursuant to Rule 37 to enter an order compelling defendant to undergo another deposition and had inherent authority to sanction defendant by ordering her to reimburse plaintiff for the cost of her first deposition where the deposition transcript supports a finding by the trial<page_number>Page 570</page_number> court that counsel for defendant refused to allow defendant to answer some questions and in other instances told defendant what to say. N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 37.</block_quote> <bold>2. Pleadings — compulsory counterclaim — independent action —</bold> <bold>amount exceeding magistrate's jurisdiction — filing with</bold> <bold>appeal to district court</bold> <block_quote> Plaintiff tenant's action to recover damages for improper exercise of the summary ejectment remedy was a compulsory counterclaim in defendant landlord's summary ejectment action. However, since plaintiff sought damages in excess of the jurisdictional amount established by N.C.G.S. § <cross_reference>7A-210</cross_reference>(1), plaintiff's action could not have been pleaded as a compulsory counterclaim to defendant's summary ejectment action while it was before the magistrate but should have been filed with the appeal from the magistrate's decision to the district court.</block_quote> <bold>3. Pleadings — compulsory counterclaim — independent action —</bold> <bold>dismissal or stay</bold> <block_quote> Where plaintiff filed a compulsory counterclaim for improper exercise of the summary ejectment remedy as an independent action in the superior court during the pendency of defendant's prior summary ejectment action in the district court, and defendant's motion for summary judgment informed the trial court that the summary ejectment action was pending in the district court, the trial court should have treated defendant's motion as being pursuant to Rule 13 and either dismissed or stayed plaintiff's action under Rule 13. N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 13.</block_quote>