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Silva v. Lowes Home Improvement

Court of Appeals of North Carolina

February 3, 2015

GILBERT E. SILVA, Employee-Plaintiff
v.
LOWES HOME IMPROVEMENT, Employer, SELF-INSURED, SEDGWICK CLAIMS MANAGEMENT SERVICES, SERVICER, Defendant

Heard in the Court of Appeals November 5, 2014

Page 181

Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for Plaintiff-appellant.

Moore & Van Allen PLLC, by Anthony T. Lathrop and E. Taylor Stukes, for Defendant-appellee.

DILLON, Judge. Judge BRYANT and Judge DIETZ concur.

OPINION

Page 182

Appeal by Plaintiff from opinion and award entered 3 March 2014 by the North Carolina Industrial Commission, I.C. File No. 203347.

DILLON, Judge.

Gilbert E. Silva (" Plaintiff" ) appeals from the North Carolina Industrial Commission's (" the Commission" ) opinion and award. For the following reasons, we affirm.

I. Background

This present appeal represents the third appeal to this Court on this matter.

On 26 May 2001, Plaintiff sustained a compensable work injury while employed with Lowes Home Improvement (" Defendant" ). Plaintiff returned to work following his injury. In 2002, however, he was terminated from his employment, and Defendant ceased paying him workers' compensation benefits.

Thereafter, Plaintiff filed a Form 33 requesting a hearing to reinstate his workers' compensation benefits; however, Defendant denied liability on the basis that Plaintiff's employment was terminated for reasons unrelated to his work injury.

On 28 September 2004, the Commission ordered Defendant to pay ongoing disability compensation at the rate of $459.14 per week from 16 April 2002 to the present and all medical expenses related to his compensable injury. Following appeal by Defendant, this Court remanded to the Commission for further findings as to Plaintiff's continued disability. See Silva v. Lowe's Home Improvement, 176 N.C.App. 229, 625 S.E.2d 613 (2006).

On remand, the Commission again ordered Defendant to pay ongoing disability compensation at the rate of $459.14 per week from 16 April 2002 to the present, all medical expenses related to his compensable injury, and attorney's fees. Defendant again appealed, and this Court affirmed the Commission's award. See Silva v. Lowe's Home Improvement, 197 N.C.App. 142, 676 S.E.2d 604 (2009).

On 7 July 2009, Defendant paid Plaintiff a lump sum payment in the amount of $221,158.84 for the temporary total disability benefits that had accrued since 16 April 2002; and since 7 July 2009, Defendant has made payments to Plaintiff in the amount of $459.14 per week to the present.

On 6 July 2012, Plaintiff filed a motion for additional relief, contending, inter alia, that he was entitled to (1) a 10% penalty for Defendant's late payment of the lump sum amount following the second appeal to this Court; (2) reimbursement for certain other expenses; and (3) recovery of attorney's fees. Following a hearing on the matter, a deputy commissioner filed his opinion and award, denying Plaintiff's motion. On 3 March 2014, the Commission ...


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