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Sims v. Charmes/Arby's Roast Beef2/6/2001
Appeal by plaintiff from opinion and award entered 18 December 1997 and order entered 7 October 1998 by the North Carolina Industrial Commission; appeal by defendants from order of the North Carolina Industrial Commission entered 22 June 1999. Heard in the Court of Appeals 14 August 2000.
Benny Sims ("plaintiff") injured his back lifting a case of beef while working for Charmes/Arby's Roast Beef (along with North Carolina Self-Insurers Fund, "defendants") on 25 October 1994. Defendants immediately filed Industrial Commission Form 19 and began making temporary disability payments effective the day of plaintiff's injury; thereafter, defendants filed a Form 60 admitting liability and plaintiff's right to compensation. Dr. Richard O'Keeffe, Jr., diagnosed plaintiff with multiple bulging discs. On 15 June 1995, plaintiff was given a ten percent permanent disability rating to his back.
Meanwhile, defendants obtained evidence that plaintiff was working on a self-employed basis and promptly filed a Form 24 Application to Terminate Payment of Compensation. On 25 July 1995, a deputy commissioner approved defendants' Form 24 and terminated plaintiff's benefits effective 20 March 1995, finding that plaintiff was self- employed and earning income. Plaintiff requested a hearing. At the hearing, held on 10 September 1996, plaintiff testified that he owned a number of business enterprises, including a photography studio and tax preparation service, and that he owned and operated these businesses before, during, and after his employment with defendant. The evidence also showed that plaintiff began working at a K-Mart store on 29 July 1996.
The deputy commissioner awarded plaintiff compensation for temporary total disability from 1 November 1995 through 1 December 1995 because of a re-injury to plaintiff's back which occurred 31 October 1995, as well as 30 weeks of permanent partial disability; defendants were awarded a credit for 38 weeks of compensation payments made between 25 October 1994 and 25 July 1995. The credit awarded to defendants offset the award to plaintiff, who received no further compensation.
Plaintiff appealed to the Full Commission. On 18 December 1997, the Commission entered an opinion and award in which it concluded plaintiff was not entitled to a presumption of continuing temporary total disability because the parties had never entered into a Form 21 agreement; further, the Commission upheld the award of the deputy commissioner, finding that plaintiff failed to meet his burden of proving temporary total disability, in part because he earned income during the period in which he collected disability payments from defendants.
Plaintiff's Motion for Reconsideration, in which he contended defendants' execution of the Form 60 entitled him to a presumption of continuing temporary total disability, was denied. Plaintiff then moved for an en banc hearing before the entire Industrial Commission. Plaintiff's motion was granted and the Full Commission, sitting en banc, heard oral arguments on 7 January 1999. On 22 June 1999, the Commission filed an order in which it declined to rule en banc, and provided that the time for filing an appeal from its opinion and award of 8 May 1997 "shall lie from the date of the filing of this Order." Plaintiff and defendants appeal.
Plaintiff assigns error to the Full Commission's opinion and award filed 18 December 1997, and its subsequent order filed 7 October 1998, which concluded that plaintiff was not entitled to a presumption of continuing temporary total disability based on defendants' filing of the Industrial Commission Form 60. Further, plaintiff contends the Commission erred when it determined plaintiff
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