Workers’ Compensation – Appeals – Untimely Notice – Excusable Neglect – Attorney Confusion – Insufficient

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Sellers v. FMC Corp. (Lawyers Weekly No. 11-07-1005, 17 pp.) (Douglas McCullough, J.) Appealed from the Industrial Commission. N.C. App. Click here for the full-text opinion.

Holding: After two workers’ compensation cases were consolidated for the convenience of the parties, defense counsel received a transcript from the consolidated hearing and mistakenly believed that meant the Industrial Commission had received his notice of appeal for both cases. However, counsel failed to check to make sure he had actually sent a notice of appeal in the instant case; in fact, he did not file notice of appeal in this case until 13 days after the deadline. Counsel’s actions did not constitute excusable neglect.

We reverse the Industrial Commission’s ruling that it could consider defendants’ tardy appeal because of excusable neglect. We vacate the Commission’s subsequent opinion and award and reinstate the deputy commissioner’s opinion and award.

Even though plaintiff did not appeal to this court until the Commission issued its final opinion and award, plaintiff’s appeal encompasses the Commission’s interim order in which it found excusable neglect on the part of defense counsel. Yorke v. Novant Health, Inc., 192 N.C. App. 340, 666 S.E.2d 127 (2008).