Scott v. Carolina Virginia Forest Products

Plaintiff was injured on March 12, 1991 while working as a logger, when a large tree "kicked back", pinning him against a skidder. Defendants paid temporary total disability for 44 weeks, terminating on or before January 31, 1992 when the Commission granted a Form 24 following plaintiff's failure to attend "six physical therapy visits". A request for hearing was received at the Commission on January 20, 1993. The matter was set for hearing twice during the summer of 1993, but continued on both occasions at the request of "both parties . . . because the plaintiff-employee is scheduled to undergo further medical treatment and evaluation." The present order under review noted the prior continuances and dismissed the claim for failure of the plaintiff to appear and prosecute when it was again on the calendar for June 9, 1994. The Commission had been notified on May 9, 1994 by a member of plaintiff's family (he was not represented at that time) that plaintiff was incarcerated and that they were having difficulty obtaining medical records. An affidavit of the plaintiff and letter from the N.C. Department of Corrections provided to the Full Commission — which are received into evidence — indicate that plaintiff's mother also personally appeared at the hearing to tell the Deputy Commissioner that he remained in prison, and that he was released from prison on June 27, 1994.

Consequently, for cause shown, it is ORDERED that the Order of Dismissal is SET ASIDE, and that the matter be set on for hearing in due course.

S/ ________________________ J. RANDOLPH WARD COMMISSIONER

CONCURRING:

S/ ________________________ J. HOWARD BUNN CHAIRMAN

S/ ________________________ RICHARD FORD DEPUTY COMMISSIONER

JRW/tmd 12/29/94