Merritt v. Faircloth

***********The Opinion and Award of the Full Commission is HEREBY AMENDED.

***********The AWARD and ORDER sections should read:

Based upon the foregoing findings of fact, the undersigned makes the following:

AWARD1. Defendant shall pay to the plaintiff temporary total disability compensation in the amount of $429.13 per week for the time period from June 29, 2001 to September 21, 2001 for a total amount of $5,149.56. This sum has accrued and shall be paid in one lump sum subject to attorney's fees hereinafter provided.

2. Defendant shall pay to the plaintiff temporary partial disability benefits from September 21, 2001 in an amount of $129.53 per week for up to 300 weeks from June 27, 2001 and until further order of the Industrial Commission. The portion of this amount that has accrued, $5,958.38, shall be paid in a lump sum subject to the attorney's fee approved below.

3. Defendant shall provide all reasonable and necessary medical care to the plaintiff. As agreed upon by the parties, Dr. William F. Lestini is hereby designated as the plaintiff's treating physician.

4. A civil penalty is hereby assessed against defendant pursuant N.C. Gen. Stat. § 97-94(b) to in the amount of $21,000.00. A check shall be made payable to the Industrial Commission and sent directly to Kay Emanuel at the Industrial Commission.

5. An additional civil penalty is assessed against the defendant pursuant to N.C. Gen. Stat. § 97-94(d) in the amount of $8,315.33. A check shall be made payable to the Industrial Commission and sent directly to Kay Emanuel at the Industrial Commission.

6. A reasonable attorney fee of twenty-five percent of the compensation due plaintiff under paragraphs 1 and 2 of this AWARD is approved for plaintiff's counsel and shall be paid as follows: twenty-five percent of the lump sum due plaintiff under paragraphs 1 and 2 of this AWARD shall be deducted from that sum and paid directly to plaintiff's counsel. Thereafter every fourth check shall be sent directly to plaintiff's counsel.

Defendant shall pay the costs.

***********ORDER1. The $1,500.00 placed by defendant in defendant attorney's trust account shall be immediately paid into plaintiff attorney's trust account for dispersal to plaintiff.

2. The penalties assessed against the defendant are HEREBY REDUCED to $1,000.00 provided that the defendant complies with N.C. Gen. Stat. § 97-93 and pays the compensation due the plaintiff beginning within 15 days of the filing of this order.

3. This matter is hereby IMMEDIATELY REMANDED to Deputy Commissioner Doug Berger for contempt proceedings.

4. This matter is hereby concurrently REFFERED to Assistant Attorney General Adrian Phillips for immediate action in executing the above AWARD and for criminal prosecution.

***********The remainder of the Full Commission's 15 May 2002 Opinion and Award remains in full force and effect.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

S/______________ RENE C. RIGGSBEE COMMISSIONER