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Knight v. Wal-Mart Stores3/5/2002
nced plaintiff's share of the mediator's fee against the compensation due plaintiff. Prior to the hearing in this case, the parties stipulated that defendants had paid the mediator's fee of $375.00 in full, thereby advancing plaintiff's share of $187.50. Rule 7(c) of the Rules for Mediated Settlement and Neutral Evaluation Conferences of the North Carolina Industrial Commission provides that, " nless otherwise . . . ordered by the Commission," all parties must pay equal shares of the mediator's fee. In such situations, the defendant is required to "pay the plaintiff's share, as well as its own, and the defendant shall be reimbursed for the plaintiff's share when the case is concluded from benefits that may be determined to be due to the plaintiff." R. Mediated Settlement Confs. Of N.C. Indus. Comm'n 7(c), 2002 Ann. R. N.C. 794, 795.
Here, at the conclusion of its Opinion and Award, the Commission entered the following order: "Defendants shall pay the costs." Thus, pursuant to the authority vested in the Commission by Rule 7(c), the Commission apparently concluded that the costs of the mediated settlement conference should not be apportioned as set forth in Rule 7(c), and further that plaintiff should not be obligated to share in the payment of such costs. We hold that the Commission did not err in entering this order, and we, therefore, reject defendants' final argument.
For the reasons set forth herein, we affirm.
Affirmed.
Judge McGEE concurs.
Judge BRYANT dissents in part.
BRYANT, Judge, dissenting in part.
I dissent from the portion of the majority opinion relating to whether the concept of MMI is material to Issue # 3. That issue on appeal is whether, once the employee has established loss of wage earning capacity pursuant to N.C. Gen. Stat. § 97-29 or N.C. Gen. Stat. § 97-30, employee may continue to receive temporary total disability after having reached maximum medical improvement. In two prior decisions of this court, we addressed this issue. In Anderson v. Gulistan Carpet, Inc., 144 N.C. App. 661 (2001), a panel of this Court answered that issue, "no"; however, in another opinion filed on the same day as Anderson, a different panel in Russos v. Wheaton Industries, 145 N.C. App. 164, 551 S.E.2d 456, disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (2001) answered, "yes". No appeal was taken by the parties from the Anderson decision; and, our Supreme Court declined to grant discretionary review of the Russos decision.
Manifestly, a conflict of panels on this Court requires a decision from our Supreme Court. N.C. Gen. Stat. § 7A-30(2). Accordingly, I dissent from the majority decision for the reasons stated in Anderson and thereby afford the defendants the opportunity to appeal this issue directly to the Supreme Court to obtain a definitive opinion.
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