Workers’ Compensation – Appeals – No Late Payment Penalty – Interest

Norman v. Food Lion, LLC (Lawyers Weekly No. 11-07-0719, 12 pp.) (Robert N. Hunter Jr., J.) Appealed from the Industrial Commission. N.C. App. Click here for the full-text opinion.

Holding: When an employer has been ordered to pay workers’ compensation benefits, but the employer appeals, payment does not become due until either the employer waives the right to appeal or all appeals have been exhausted. Therefore, an employer is not subject to a late payment penalty when it loses on appeal or waives further appeal.

We reverse the Industrial Commission’s award of a late payment penalty against defendants.

Background

Plaintiff was injured at work, but defendants denied his claim. A deputy commissioner ordered defendants to pay benefits, and defendants appealed to the full commission.

The full commission affirmed the deputy commissioner’s opinion and award. Defendants did not appeal the full commission opinion. Defendants began paying plaintiff benefits before their time to appeal expired.

Plaintiff sought and obtained an award of a 10 percent late-payment penalty, and defendants appeal.

Discussion

G.S. § 97-85 provides that a deputy commissioner’s decision can be appealed within 15 days of the date when notice of the award is provided. Additionally, an award of the full commission may be appealed to the Court of Appeals “within 30 days from the date of such award or within 30 days after receipt of notice” of the award. G.S. § 97-86.

Pursuant to these sections, defendants correctly assert that plaintiff’s compensation did not become due until after the time to appeal the decision of the full commission had expired.

Roberts v. Dixie News, Inc., 189 N.C. App. 495, 658 S.E.2d 684 (2008), upon which plaintiff relies, was procedurally and substantively distinct from the present case. It did not address, and does not control, when the initial payment of an award of the commission becomes due. It dealt with the termination and resumption of benefits.

Roberts did not interpret G.S. § 97-18, which controls when payment of workers’ compensation benefits are due. Furthermore, we find nothing in Roberts that contradicts § 97-18(e), which explicitly states that an initial payment of benefits pursuant to an award of the commission is not payable until after the time for appeal has expired.

When an employer has been ordered to pay compensation pursuant to an award, but maintains an appeal, payment will not become due until the party waives the right to appeal, or all appeals have been exhausted.

Finally, G.S. § 97-86.2 requires an insurance carrier to pay interest on an award when an appeal results in an award to an employee. This statute necessarily anticipates that a defendant would not pay an award issued by a deputy commissioner when the award is appealed to the full commission, as interest accrues from the date of the initial hearing before the deputy commissioner.

Plaintiff’s interpretation of Roberts as requiring immediate payment of a deputy commissioner’s award despite the award being appealed would impermissibly render § 97-86.2 unnecessary.

Reversed.