Categories: Industrial Commission Opinions

FULKS v. STRATEGIC ORGANIZATIONAL SYSTEM, 812087 (NCIC 4-25-1997)

MARGIE FULKS, Employee, Plaintiff v. STRATEGIC ORGANIZATIONAL SYSTEM, Employer, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants.

I.C. No. 812087North Carolina Industrial Commission
Filed 25 April 1997

ORDER FOR THE FULL COMMISSION BY BERNADINE S. BALLANCE, COMMISSIONER

DISSENT BY J. RANDOLPH WARD, COMMISSIONER

APPEARANCES

Plaintiff: Pro se.

Defendants: Hutchins, Tyndall, Doughton
Moore, Attorneys, Winston-Salem, NC; Thomas W. Moore, Jr. of Record.
Intervenor: Daniel S. Walden, Walden
Walden, Attorneys, Winston-Salem, NC.

* * * * * * * * * * * * * * * *

This matter coming to be heard before the undersigned upon the defendant’s timely filed Motion for Reconsideration of an Opinion and Award filed March 19, 1996 and the undersigned being of the opinion that good grounds exist for amending the Opinion and Award filed March 19, 1996.

Therefore, IT IS ORDERED that the Opinion and Award shall be AMENDED as follows:

Finding of Fact #11 is added and shall read as follows:

“11. There are no provisions under the Workers’ Compensation Act that authorizes interest on attorney fees to be awarded to plaintiff’s attorney and Daniel S. Walden does not seek interest on his fee. Defendant is not entitled to interest earned on money held for the benefit of another person.”

Conclusion of Law #5 is added and shall read as follows:

“5. Plaintiff is entitled to interest earned on the $22,500.00 held by Liberty Mutual since July 29, 1994.”

Paragraph #2 of the Order is amended and shall now read as follows:

“2. IT IS FURTHER ORDERED that the actual interest earned by Liberty Mutual on said $22,500.00 (the unpaid portion of the Award) held by Liberty Mutual since entry of the Order Approving Compromise Settlement Agreement on July 29, 1994 shall be paid to plaintiff pursuant to N.C. Gen. Stat. § 97-86.2. If Liberty Mutual cannot provide sufficient proof to the Industrial Commission, within 15 days of the filed date of this Order, of the actual interest earned on said money, Liberty Mutual shall pay to plaintiff interest at the legal rate of eight percent (8%) from July 29, 1994.”

Except as amended, the Opinion and Award filed March 19, 1996 shall remain in full force and effect.

No costs are assessed at this time.

S/ ________________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/ _____________________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/ _____________________ J. RANDOLPH WARD COMMISSIONER

BSB:md

COMMISSIONER J. RANDOLPH WARD, DISSENTING

For my part, the Motion for Reconsideration is well taken. I overlooked the implication of the interest provision in the March, 19, 1996 Order, i.e., that we were charging the defendants interest for the dubious privilege of being the “stakeholder” during the fight between the plaintiff and her former counsel over his fee. It may be that, in this unusual instance, the carrier held the money for long enough that interest would offset the time, inconvenience and cost of maintaining an open file and monitoring the case until the money can be disbursed. And, I do not disagree with my esteemed colleagues that interest on funds frozen by litigation in this way might better go to someone else — perhaps the State Bar’s IOLTA Program, which generously supported the Commission’s Mediation Program with funds to pay the mediator’s fees in “low indemnity” cases. But in light of our long custom and practice to the contrary, I think it would be fairer to begin this in a case where the order to hold the funds forewarns and permits the carrier to segregate and disburse the money into a lawyer’s trust account or other appropriate account.