Sims v. charmes/arby's Roast Beef

This case involves the issue of whether the filing of a Form 60 raises a presumption of continuing disability. Upon careful and detailed consideration of the facts and issues presented in this particular case, the Full Commission has determined that this case also involves several other important issues related to the plaintiff's concurrent employment. Therefore, the Full Commission believes that this case should more appropriately be reviewed by the North Carolina Court of Appeals.

Therefore, the Full Commission declines to rule enbanc on this case. The Opinion and Award of May 8, 1997, and the subsequent Order dated October 7, 1998, by the divided panel of the Full Commission shall remain in full force and effect. The time for filing any appeal to the Court of Appeals shall lie from the date of the filing of this Order.

This the ___ day of June, 1999.

S/_____________ J. HOWARD BUNN, JR. CHAIRMAN

S/_____________ BERNADINE S. BALLANCE COMMISSIONER

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/_____________ LAURA K. MAVRETIC COMMISSIONER

(CONCURRING IN RESULT ONLY)

S/_____________ DIANNE C. SELLERS COMMISSIONER

(UNABLE TO PARTICIPATE IN THE DECISION DUE TO ILLNESS)

______________________________ CHRISTOPHER SCOTT COMMISSIONER

(RECUSED)

______________________________ RENEE C. RIGGSBEE COMMISSIONER

As I dissented from the original Order setting this case for review by the Full Commission en banc, I concur in the result herein because I respectfully contend that the Commission lacked statutory or inherent authority to sit en banc in review of an Opinion and Award by a panel for the Full Commission. In my opinion, the appellant's exclusive remedy was an appeal to the North Carolina Court of Appeals. See N.C. Gen. Stat. §§ 7A-29, 7A-250(b), and 97-86.

This the ___ day of June, 1999.

S/_____________ DIANNE C. SELLERS COMMISSIONER