Lead Opinion

*********** The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Donovan and the briefs and arguments on appeal. The appealing party has not shown good ground to receive further evidence or to amend the holding of the Deputy Commissioner. The Full Commission AFFIRMS the Opinion and Award of the Deputy Commissioner and enters the following Opinion and Award.

*********** The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties in a Pre-Trial Agreement and at the hearing as:

STIPULATIONS 1. The Industrial Commission has jurisdiction over the subject matter of this case, the parties are properly before the Commission, and the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act at all relevant times.

2. Kemper Insurance Company was the carrier on the risk.

3. The employee-employer relationship existed between the parties at all relevant times.

4. Plaintiff sustained an admittedly compensable injury to his lower back on 5 June 1995.

5. The issue for determination is:

• Whether plaintiff is bound by a Compromise Settlement Agreement entered into by the parties on 9 June 1999?

*********** Based upon the evidence of record, the Full Commission enters the following:

FINDINGS OF FACT 1. Pursuant to a mediated settlement conference held on 22 March 1999, the parties entered into a Compromise Settlement Agreement by which plaintiff received from defendants a lump sum payment of $14,500.00 in addition to the payment by defendants of plaintiff's outstanding medical bills related to his injury.

2. The Compromise Settlement Agreement was signed by the parties on 9 June 1999, and approved by Deputy Commissioner George T. Glenn, II on 21 June 1999.

3. Plaintiff testified that although he signed the agreement, he did not want to give up his right to pursue future workers' compensation benefits. Plaintiff further claims that the attorney who represented him at the mediated settlement agreement was not the attorney that he hired to represent him (Attorney Leah Lassiter).

*********** Based upon the foregoing findings of fact, the Full Commission concludes as follows:

CONCLUSION OF LAW In order to prevail in a claim attempting to set aside a signed and Commission-approved Compromise Settlement Agreement, the claimant must show that there has been error due to fraud, misrepresentation, undue influence or mutual mistake. Plaintiff has failed to demonstrate error due to fraud, misrepresentation, undue influence or mutual mistake; therefore, the Compromise Settlement Agreement remains in force. N.C. Gen. Stat. § 97-17(a).

*********** Based upon the foregoing Findings of Fact and Conclusions of Law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:

ORDER 1. Under the law, plaintiff's claim must be, and is, hereby DENIED.

2. Each party shall pay their own costs in this action.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

DISSENTING:

S/____________________ THOMAS JEFFERSON BOLCH COMMISSIONER

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Dissenting Opinion

The majority was correct in finding that the claimant must show "fraud, misrepresentation, undue influence, or mutual mistake" in order to prevail in a claim attempting to set aside a signed and approved compromise settlement agreement pursuant to N.C. Gen. Stat. § 97-17(a). However, the majority erred in determining that plaintiff failed to demonstrate error due to the above factors when the evidence of record is inconclusive as to the extent and sufficiency of the legal representation provided to him during the settlement process.

The record of the hearing before the Deputy Commissioner shows that during the settlement mediation, and at the time plaintiff executed the compromise settlement agreement, plaintiff was confused about the amount of money involved, the claim to which the settlement pertained, and whether he had an option to reject defendants' settlement offer. Plaintiff testified that he is not well educated and has reading problems, but that he was under the assumption that he had retained Attorney Leah Lassiter as counsel. Based on a review of the transcript, it is unclear as to who appeared on plaintiff's behalf at the settlement mediation and at the time he executed the compromise settlement agreement. Though the settlement agreement bears what appears to be a stamped signature for Ms. Lassiter, plaintiff testified he was uncertain if they had ever met. Perhaps there is a simple explanation for plaintiff's confusion; however, based upon the evidence before the Commission, the undersigned cannot find that plaintiff was fairly and justly represented during the settlement of this matter.

The Supreme Court has long held that the Industrial Commission, in its judicial capacity, must undertake a full investigation for determining whether or not a voluntary settlement is fair and just. The law thus undertakes to protect the rights of the employee in contracting with respect to his injuries. Vernon v. Mabe Builders, 336 NC 425, 444 SE2d 191 (1994). The Court has affirmed this position in stating that the Industrial Commission stands by to assure fair dealings in any voluntary settlement. Id. If the mediated settlement agreement reached by the parties is found to be a binding agreement, the Commission must still "consider its approval of the mediated settlement agreement pursuant to Rule 502(1) of the Workers' Compensation Rules, i.e., is the agreement "deemed fair and just and in the best interest of all parties." Lemly v.Colvard Oil, 157 N.C. App. 99, 103, 577 S.E.2d 712, 715 (2003).

The majority has erred in upholding the approval of the settlement agreement without taking evidence and making sufficient findings of fact regarding whether plaintiff was fairly and justly represented during mediation and at the time he executed the settlement agreement. This matter should be remanded to a Deputy Commissioner for the taking of additional evidence, specifically the testimony of plaintiff's counsel, as to the extent and sufficiency of the legal representation provided to plaintiff during the settlement process. For these reasons, I respectfully dissent from the majority's Opinion and Award in this matter.

This 25th day of October 2004.

S/_____________ THOMAS J. BOLCH COMMISSIONER