Opinion
I.C. No. 552149
FILED: 5 September 1997
This matter was reviewed by the Full Commission on March 7, 1997, upon appeal of plaintiff from an Opinion and Award by Deputy Commissioner Morgan S. Chapman, filed September 3, 1996.
APPEARANCES
Plaintiff: Kenneth P. Rothrock, Attorney, Hillsborough, NC, Counsel of Record.
Defendant: Carruthers Roth, Attorneys, Greensboro, NC; Jack B. Bayliss, Jr., Counsel of Record.
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Plaintiff gave notice of appeal on September 16, 1996 from the Opinion and Award by the Deputy Commissioner. Plaintiff has not filed an Application for Review or Assignments of Error from said Opinion and Award. Plaintiff filed a Motion to Set Aside the Opinion and Award and Allow the Deposition of Physicians on October 1, 1996. By Order dated October 15, 1996, J. Howard Bunn, Jr., Chairman, ordered that plaintiff's Motion be held in abeyance until such time as it could be argued before the Full Commission.
Plaintiff's Motion requests that the Opinion and Award by Deputy Commissioner Chapman be set aside and that the record be re-opened to allow deposition testimony of medical providers. Plaintiff alleges that his failure to seek additional time to depose medical providers for the reasons set forth in his Motion constituted excusable neglect. Plaintiff alleges that the outcome of this case would likely be different if deposition testimony of the doctors is taken and received into evidence. Plaintiff is alleging that he sustained a work-related injury to his back on May 16, 1994 and a second work-related injury in April, 1995. The Deputy Commissioner found that medical evidence would be needed to prove which injury (if any) caused plaintiff's alleged disability after June 23, 1994. No opinion testimony was presented by medical experts in this case on the causal connection between plaintiff's claim for disability after June 23, 1994 and his May 16, 1994 injury. Plaintiff did not depose any medical providers. The Full Commission takes judicial notice that plaintiff has not filed a claim for an April, 1995 injury with the Industrial Commission; consequently, the Industrial Commission has no jurisdiction over any injury alleged in April, 1995, more than two years ago.
In the discretion of the undersigned, giving due consideration to the record herein, plaintiff's Motion is DENIED. The Opinion and Award of the Deputy Commissioner shall have full force and effect.
IT IS FURTHER ORDERED that plaintiff's appeal is DISMISSED.
This the 21st day of August 1997.
S/ __________________________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
S/ ___________________ THOMAS J. BOLCH COMMISSIONER
S/ ___________________ LAURA K. MAVRETIC COMMISSIONER
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