Stephens v. Godley Builders

The majority in this matter enforces the Form 30 agreement in question. I respectfully dissent.

The circumstances surrounding the signing of the Form 30 in this case bear examination. At the time of her husband's death, plaintiff Ruth Stephens was physically disabled from work and had been receiving Social Security disability benefits. She was also functionally illiterate. The Form 30 provided by the insurance adjuster was the 1979 version, which did not address the issue of lifetime benefits, as opposed to the 1992 version, that does. Plaintiff's attorney at the time, Ray Rankin, prepared an addendum to the Form 30 with the contention that the plaintiff Ruth Stephens was entitled to lifetime benefits due to her physical disability at the time of her husband's death. Plaintiff Ruth Stephens signed this addendum. The Form 30 and the addendum were then sent to the defendant-carrier, where the claims adjuster unilaterally removed the addendum. The Form 30 sans addendum was then submitted by the carrier to the Industrial Commission and approved by Pat Benton, then the Industrial Commission's Chief Claims examiner. Notwithstanding attorney Rankin's egregious yet passive conduct in this case, the defendant-carrier actively undertook to use an 11-year-old form and then altered that agreement by removing an addendum vital to the plaintiff's acquiescence.

The circumstances surrounding the execution of the so-called "agreement" in this case are egregious. The insurance carrier used an out-of-date Form 30 that did not contemplate lifetime rights. Was it a coincidence that this outdated form was used in a case that involved lifetime rights? Furthermore, the carrier unilaterally altered the agreement (removing the portion that addressed lifetime rights) after the illiterate plaintiff had signed it. It must be assumed that plaintiff Ruth Stephens would not have signed the 1992 Form 30 (the current version at the time of execution) if lifetime rights were not addressed on that form. It must be assumed that plaintiff Ruth Stephens would not have signed the outdated Form 30 she did sign had the addendum not been attached. There was never a meeting of the minds on the content of the Form 30 executed. The carrier knew of plaintiff's disability when they removed the addendum from the agreement and submitted the Form 30, knowing the plaintiff had signed it under the misapprehension that it was part of the deal. To take advantage of a disabled widow in this way is reprehensible. Equity screams for a result contrary to the majority's.

The equities demand that this matter be remanded to a Deputy Commissioner for a determination of the lifetime rights issue, with the appeal period for this Form 30 tolled.

For the above reasons I respectfully dissent.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

2. At such time, an employment relationship existed between decedent and employer-defendant.

3. Consolidated Administrators, now Carolinas AGC, was the third party administrator for defendant at all times pertinent thereto, which was a duly qualified self-insured.

4. Decedent's average weekly wage was $589.68, yielding a compensation rate of $393.13 per week.

5. Decedent's widow received 400 weeks of compensation ending on June 25, 2002.

2. An addendum to the Form 30, (Plaintiff's Exhibit No. 2) was drafted by plaintiff's counsel at the time, Ray Rankin. The addendum provided that the agreement left open the issue of the 10% penalty and disability of Ruth Stephens beyond 400 weeks. The addendum is signed only by Ruth Stephens and no agreement or consent was made expressly or impliedly by defendants.

3. Mr. Rankin, by letter dated May 31, 1995, acknowledged receipt of a Notice of Death Award, and, without any acquiescence by defendants, advised that the Death Award left open an issue about a 10% penalty and an issue about disability extending beyond 400 weeks. Mr. Rankin further advised that he would request a hearing on the two outstanding issues shortly, which never occurred.

4. Lisa Beelendorf, Claims Adjustor, wrote Mr. Rankin advising him that defendants did not submit the addendum to the Form 30 to the Industrial Commission, and informing him that defendants did not feel that the statements in the addendum were not related to the claim, and indicating that plaintiff could file for a hearing regarding this matter.

5. The Notice of Death Award, dated May 22, 1995, provided inter alia that the "Commission hereby approves said agreement (as amended) and directs payment of compensation as follows: (1) At the rate of $393.13 a week during 400 weeks beginning March 17, 1994, to Mrs. Ruth Stephens, widow." The last section of the Form 30D states as follows: "This is a formal award and any interested party may give notice of appeal therefrom within the time and in the manner provided by law."

6. The Form 30 used by the parties in this case was the 1979 version, which did not require the parties to address lifetime benefits, as the 1992.

7. No appeal was made from the Notice of Death Award dated May 22, 1995, by plaintiff.

8. Defendant's Exhibit No. 3 is an e-mail from Judy King with CompTrust ACG to Paula Barnes at the Industrial Commission requesting any Order from the Industrial Commission filed other than that dated May 22, 1995, and identified hereinabove as defendant's Exhibit No. 1. Ms. Barnes advised that there was "no record of any Order stating the payment should go beyond 400 weeks," but that if Mrs. Stephens could present an Order awarding amounts in addition to 400 weeks they would be happy "to review and verify if it is a true copy."

9. Based upon the greater weight of the evidence, the Notice of Death Award was a final award which did not provide for lifetime benefits.

2. The Notice of Death Award of May 22, 1995 was a final award of the North Carolina Industrial Commission, received by plaintiff's counsel on or before May 31, 1995. N.C. Gen. Stat. § 97-85. Therefore, plaintiff's claim for additional death benefits must be denied.

2. Each side shall bear its own costs, except that defendants shall pay an expert witness fee of $560.00 to Dr. Bridget Bongaard.

This the 4th day of April, 2005.

S/____________ BUCK LATTIMORE CHAIRMAN

CONCURRING:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

DISSENTING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER