IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-982 

Filed: 5 May 2020

North Carolina Industrial Commission, I.C. No. 15-048700

PAMELA LAUZIERE, Employee, Plaintiff,

v.

STANLEY MARTIN COMMUNITIES, LLC, Employer, and AMERICAN ZURICH

INSURANCE COMPANY, Carrier, Defendants.

Appeal by Plaintiff from Opinion and Award entered 22 May 2018 by the Full 

North Carolina Industrial Commission. Heard in the Court of Appeals 10 April 2019.

Lennon, Camak & Bertics, PLLC, by S. Neal Camak and Michael W. Bertics, 

for plaintiff-appellant.

Lewis & Roberts, P.L.L.C., by Mallory E. Lidaka and Bryan L. Cantley, for 

defendants-appellees.

MURPHY, Judge.

The North Carolina Industrial Commission’s (“the Commission”) conclusions 

of law must be justified by its findings of fact and its findings of fact must be 

supported by competent evidence. As a sanction, the Full Industrial Commission 

dismissed Pamela Lauziere’s (“Lauziere”) claim with prejudice for failure to prosecute 

after it found that the “monetary damages incurred by [Stanley Martin Communities 

(“Stanley Martin”) and Zurich American Insurance, (together, “Defendants”)] as a 

result of [Lauziere’s] conduct could not be recouped by Defendants even if ordered by 

the Commission.” This finding is unsupported by the evidence because no competent 
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

Opinion of the Court

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evidence suggests Lauziere is unable to pay monetary damages or the Defendants are 

unable to recoup their losses. Accordingly, we reverse and remand for further 

proceedings. 

BACKGROUND

Lauziere was a realtor for Stanley Martin. On 20 September 2015, Lauziere

allegedly sustained an injury while trying to manually shut a garage door at a model 

home. Stanley Martin denied Lauziere’s claim for the alleged injuries. 

Lauziere filed her request for hearing with the Commission on 30 November 

2015. On 7 January 2016, Defendants sent Lauziere pre-hearing interrogatories and 

a Request for Production of Documents. This first set of discovery requests asked for 

information including medical information or documentation detailing Lauziere’s 

medical history before and after the alleged injury. In February 2016, Lauziere 

responded to Defendants’ first set of discovery requests. In part, her counsel 

responded that certain medical records were unavailable and would be 

“supplemented” at a later time. Following an impasse at a Commission ordered 

mediation, Lauziere’s attorney was allowed to withdraw by order filed 10 March 2016. 

On 16 March 2016, Defendants served a second set of discovery requests on the now 

pro se Lauziere. The parties received notice the case was set for hearing on 3 May 

2016. 
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On 22 April 2016, seven days after the 30-day deadline for Lauziere to file her 

discovery responses, Defendants moved for an order compelling Lauziere to respond 

to their second set of discovery requests. Three days later, Lauziere underwent major 

lower back surgery, and she notified Defendants of her condition. Lauziere did not 

file a response to Defendants’ Motion to Compel. On 28 April 2016, the deputy 

commissioner continued the case off of his 3 May 2016 hearing docket. On 16 June 

2016, in an email to Defendant’s counsel, Lauziere responded to Defendants’ second 

set of discovery and requested her case be set on an expedited hearing docket. Six 

days later, Lauziere emailed Defendants to confirm they received her 16 June 2016 

correspondence, but Defendants responded alleging insufficiency. 

Over a year passed. 

On 13 June 2017, Defendants moved to dismiss with prejudice. Lauziere 

responded to that motion within 24 hours. On 6 September 2017, a hearing was held 

on the Motion to Dismiss with Prejudice, and Lauziere attended this hearing pro se.

Five days later, the Commission filed an Opinion and Award dismissing Lauziere’s 

case with prejudice in accordance with Industrial Commission Rule 616(b). 

Lauziere obtained legal counsel and appealed to the Full Industrial 

Commission on 18 September 2017. On 22 May 2018, the Full Industrial Commission 

filed an Opinion and Award affirming the decision dismissing Lauziere’s case with 

prejudice. Plaintiff timely appeals. 
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Opinion of the Court

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ANALYSIS

“Appellate review of an award from the Industrial Commission is generally 

limited to two issues: (i) whether the findings of fact are supported by competent 

evidence, and (ii) whether the conclusions of law are justified by the findings of fact.” 

Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) (citation 

omitted). However, “the choice of sanctions is a matter reviewed for abuse of 

discretion only.” Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 

16, 510 S.E.2d 388, 392 (1999). Factors we have considered include the exclusivity 

provision of the Workers’ Compensation Act, “the appropriateness of alternative 

sanctions under Rule 37, the proportionality of dismissal to the actions meriting 

sanction, and whether other statutory powers, such as holding a person in contempt 

. . . , can effectuate the result desired by the imposition of sanctions.” Id. at 17, 510 

S.E.2d at 393. We held, “when viewed in light of policy concerns of the Workers’ 

Compensation Act, dismissing [the plaintiff’s] case was an abuse of discretion” 

“because it effectively terminate[d the plaintiff’s] exclusive remedy when other 

less-permanent sanctions, such as civil contempt, were available to [the] Deputy 

Commissioner.” Id. 

The sole issue on appeal is whether the Commission erred in dismissing 

Lauziere’s claim with prejudice. The Commission has “inherent judicial authority to 

dismiss a claim with or without prejudice for failure to prosecute,” and this reflects 
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Opinion of the Court

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its “power to efficiently administer the Workers’ Compensation Act.” Lee v. Roses, 

162 N.C. App. 129, 131, 590 S.E.2d 404, 406 (2004). Under Rule 616(b) of the 

Industrial Commission Rules, 

[u]pon notice and opportunity to be heard, any claim may 

be dismissed with or without prejudice by the Commission 

on its own motion or by motion of any party if the 

Commission finds that the party failed to prosecute or to 

comply with the rules in this Subchapter or any Order of 

the Commission.

11 N.C.A.C. 23A.0616(b) (2019). 

Neither the Workers’ Compensation Act nor the Commission’s Rules provide 

much direction as to when a finding of failure to prosecute is proper or what types of 

sanctions are appropriate under the circumstances. Lentz v. Phil’s Toy Store, 228 

N.C. App. 416, 421, 747 S.E.2d 127, 131 (2013). As a result, we look to Civil Procedure 

Rule 41(b) for guidance. Id. Rule 41(b) “allows a defendant to move for dismissal of 

a case for failure of plaintiff to prosecute, and requires a determination that ‘plaintiff 

or his attorney manifests an intent to thwart the progress of the action or engages in 

some delaying tactic.’” Id. (internal marks and alterations omitted) (quoting Lee, 162 

N.C. App. at 132, 590 S.E.2d at 407). We have determined that, before the 

Commission can dismiss with prejudice a workers’ compensation claim for failure to 

prosecute under Rule 616(b), the Commission “must address . . . three factors in its 

order.” Lee, 162 N.C. App. at 132-33, 590 S.E.2d at 407. 
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First, “whether the plaintiff acted in a manner which deliberately or 

unreasonably delayed the matter.” Id. at 133, 590 S.E.2d at 407 (quoting Wilder v. 

Wilder, 146 N.C. App. 574, 578, 553 S.E.2d 425, 428 (2001)). Second, “the amount of 

prejudice, if any, to the defendant caused by the plaintiff’s failure to prosecute.” Id. 

(internal alterations omitted). Third, “the reason, if one exists, that sanctions short 

of dismissal would not suffice.” Id. at 133, 590 S.E.2d at 407. The Commission’s 

“findings of fact on these factors are conclusive on appeal if there is competent 

evidence to support its findings.” Lentz, 228 N.C. App. at 421, 747 S.E.2d at 131-32. 

“Our courts,” however, “have stated that dismissal with prejudice is the most 

severe sanction available to the court in a civil case, and thus, it should not be readily 

granted.” Lee, 162 N.C. App. at 132, 590 S.E.2d at 407. “This principle applies 

equally to the dismissal of a workers’ compensation claim at the Industrial 

Commission since prosecution pursuant to the Workers’ Compensation Act is an 

injured worker’s exclusive remedy.” Id. “Accordingly, the Full Commission err[s] as 

a matter of law when it . . . affirm[s] the deputy commissioner’s order dismissing 

plaintiff’s claim with prejudice for failure to prosecute without . . . the necessary 

findings of fact and conclusions of law to support its order[,]” Id. at 133, 590 S.E.2d 

at 408, and is an abuse of the Commission’s discretion. See Matthews, 132 N.C. App. 

at 17, 510 S.E.2d at 393. 
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Further, a finding of the Commission based on legally incompetent evidence is 

not conclusive. Penland v. Bird Coal Co., 246 N.C. 26, 30, 97 S.E.2d 432, 436 (1957); 

see Ballenger v. Burris Indus., Inc., 66 N.C. App. 556, 568, 311 S.E.2d 881, 888 (1984) 

(providing that we can declare when proffered evidence “does not constitute any 

sufficient competent evidence on which to base a denial of” a workers’ compensation 

claim). Upon our review of the Record—a record devoid of an evidentiary hearing—

the Commission erred on three grounds due to a lack of competent evidence.

To begin, Finding of Fact 24 is unsupported by evidence. The finding states,

[b]ased upon a preponderance of the evidence in view of the 

entire record, the Full Commission finds that Defendants 

have been materially prejudiced by [Lauziere]’s failure to 

respond to discovery or otherwise prosecute her claim for a 

year. [Lauziere] has thereby delayed adjudication of this 

matter and deprived Defendants of any meaningful 

opportunity to investigate or present defenses to 

[Lauziere]’s claim or to direct care if the claim is ultimately 

determined on the merits and found to be compensable. 

(Emphasis added). No competent evidence in the Record supports that Defendants 

have been materially prejudiced. For instance, Defendants proffered nothing to show 

how the delay impaired their ability to locate witnesses, medical records, treating 

physicians, or any other data. As to the argument Defendants were prejudiced by 

being unable to direct medical care, we have “long held that the right to direct medical 

treatment is triggered only when the employer has accepted the claim as 

compensable.” Yingling v. Bank of Am., 225 N.C. App. 820, 838, 741 S.E.2d 395, 407 

(2013) (internal marks omitted). This principle still applies when an employer denies 
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a claim and then seeks dismissal with prejudice for failure to prosecute; an employer 

cannot with one breath deny a worker’s compensation claim and with the next breath 

cry prejudice. See id. at 839, 741 S.E.2d at 407; Kanipe v. Lane Upholstery, 141 N.C. 

App. 620, 624, 540 S.E.2d 785, 788 (2000) (“But until the employer accepts the 

obligations of its duty, i.e., paying for medical treatment, it should not enjoy the 

benefits of its right, i.e., directing how that treatment is to be carried out.”). 

Defendants denied Lauziere’s claim and had no right to direct her medical care. 

Finding of Fact 24 is not supported by evidence.

Next, Finding of Fact 25 also lacks evidentiary support. The finding states,

[b]ased upon a preponderance of the evidence in view of the 

entire record, the Full Commission finds that Defendants 

have borne substantial monetary expenses as a result of 

[Lauziere]’s behavior in this matter. Among other things, 

Defendants have been forced to maintain an open file and 

prepare and travel for anticipated litigation, including 

mediation and scheduled hearings. 

(Emphasis added). Defendants may have maintained an open file as well as prepared 

and traveled for anticipated litigation. But no evidence in the Record provides how 

much money Defendants expended, how often they traveled, or how far they traveled, 

let alone the unsupported conclusion Defendants bore “substantial” expenses. We do 

not assume mere motions, orders, correspondence, or hearing transcripts can show 

prejudice. These documents, standing alone, do not shed light on how much time or 

money was expended. Contrast this with Lentz where “[c]ompetent evidence in the 

record support[ed] the Commission’s finding that the file in plaintiff’s case [was] 
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‘replete with motions, correspondence, and hearing transcripts documenting the time 

and effort defendants have expended related to defending plaintiff’s claim and 

preparing for multiple hearings.’” Lentz, 228 N.C. App. at 424, 747 S.E.2d at 133 

(emphasis added). The Record here, by contrast, is bereft of anything “documenting 

the time and effort” Defendants expended over defending Lauziere’s claim. Id. No 

evidence is referenced competent to provide an inference for the amounts of time, 

effort, or money Defendants expended. Thus, Finding of Fact 25 is also unsupported 

by evidence. 

Finally, the Commission considered the sanctions prong of the Lee test and 

listed another finding1 in Conclusion of Law 5:

A sanction short of dismissal with prejudice will not suffice 

in this case because no other sanction is appropriate given 

that: (1) [Lauziere] delays and continues to delay this 

matter, (2) Defendants’ ability to litigate and defend this 

claim has been irrevocably degraded by [Lauziere]’s actions 

and inactions, and (3) monetary damages incurred by 

Defendants as a result of [Lauziere]’s conduct could not be 

recouped by Defendants even if ordered by the Commission. 

Given the foregoing, sanctions short of dismissal could not 

provide appropriate or proportional relief to Defendants. 

 

1

“Whether a statement is an ultimate fact or a conclusion of law depends upon whether it is 

reached by natural reasoning or by an application of fixed rules of law.” Brown v. CharlotteMecklenburg Bd. of Ed., 269 N.C. 667, 670, 153 S.E.2d 335, 338 (1967). Although the Commission 

designated this statement a conclusion of law, it is a finding of fact. See Martinez v. W. Carolina Univ., 

49 N.C. App. 234, 239, 271 S.E.2d 91, 94 (1980) (“[T]he designations ‘Finding of Fact’ or ‘Conclusion of 

Law’ by the commission” are not conclusive).
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(Emphasis added). This suggests the Commission had evidence that Lauziere, if so 

ordered, could not pay a monetary sanction. Such evidence does not exist in the 

Record. At best, the Commission found that “Defendants have borne substantial 

monetary expenses as a result of [Lauziere’s] behavior in this matter.” This may be 

so, but neither this finding nor any evidence in the Record concerns Lauziere’s ability 

to pay a monetary sanction or how costs to Defendants are otherwise un-recoupable. 

Thus, the finding that Defendants’ “monetary damages . . . could not be recouped” is 

unsupported by the evidence in the Record. 

Additionally, there is no finding of fact, nor any competent evidence, 

supporting the contention that “Defendants’ ability to litigate and defend this claim 

has been irrevocably degraded.” This claim has not yet been reached on the merits, 

and as outlined above there is no indication that Defendants cannot fully investigate 

and defend this claim with the same ferocity that they otherwise would have upon 

timely receiving the requested discovery. They seemingly will have the same access 

to evidence, witnesses, and medical records they otherwise would have had if 

discovery had been timely provided. The only irrevocably lost opportunity 

Defendants have suffered that is discussed by the Commission is the potential “to 

direct care if the claim is ultimately determined on the merits and found to be 

compensable.” However, as discussed above, this is not a loss that could be properly 

considered by the Commission as an employer has no right to direct care until they 
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accept the underlying claim as compensable. Even monetary losses in the form of 

legal expenses as a result of Plaintiff’s delay seemingly could be recouped, as there is 

no evidence suggesting otherwise. As a result, there are no findings of fact to support 

the conclusion that the harm done to Defendants by Lauziere’s delay was irrevocable. 

Ultimately, this means the only finding the Commission used to support its 

conclusion that “[a] sanction short of dismissal with prejudice will not suffice” was 

“[Lauziere] delays and continues to delay this matter[.]” This finding alone does not 

support the conclusion that other sanctions would not have sufficed. The test in Lee

requires the analysis of all three factors, the first of which is there was an 

unreasonable delay, and the third of which is sanctions short of dismissal with 

prejudice are inadequate. If the Commission could satisfy this third factor simply by 

stating that the Plaintiff has delayed the matter, essentially restating a part of the 

first factor of the Lee test, then the third factor would be rendered mere surplusage. 

“[T]he Commission’s findings are conclusory and not supported by competent 

evidence.” See Shaw v. United Parcel Serv., 116 N.C. App. 598, 602, 449 S.E.2d 50, 

53 (1994), aff’d, 342 N.C. 189, 463 S.E.2d 78 (1995). No competent evidence in the 

Record implies that Defendants were prejudiced by the delay, were wrongfully 

deprived of a right to direct care, were burdened with substantial monetary expenses 

or were unable to recoup the same.
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Opinion of the Court

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To prevent future inefficiency, delay, or harm to the parties, we address the 

utility of available sanctions under the Workers’ Compensation Act in these 

circumstances. Failure to comply with an order to compel is not the same as failure 

to prosecute, and evidence applicable to the former may be inapplicable to the latter. 

Without the necessary evidence or findings, other less-permanent sanctions remained

available, such as civil contempt. See N.C.G.S. § 97-80(g) (2019) (“The Commission 

or any member or deputy thereof shall have the same power as a judicial officer . . . 

to hold a person in civil contempt . . . for failure to comply with an order of the 

Commission, Commission member, or deputy”); see, e.g., In re Hayes, 200 N.C. 133, 

141, 156 S.E. 791, 795 (1931) (discussing “the power to adjudge [a] witness in 

contempt and to punish for such contempt”). This is not to say that an order for civil 

contempt is needed before the Commission can dismiss with prejudice for failure to 

prosecute. However, “in light of the policy behind North Carolina’s Workers’ 

Compensation Act, to provide a swift and certain remedy to an injured worker[,] to 

ensure a limited and determinate liability for employers[,]” and to furnish Lauziere’s 

“exclusive remedy,” id. at 16-17, 510 S.E.2d at 393, the Commission, when applying 

the Lee test, must ensure its conclusions are justified by the findings of fact and those 

findings of fact are supported by competent evidence. See Chambers, 360 N.C. at 611-

12, 636 S.E.2d at 555 (declaring that “[i]f the conclusions of the Commission are based 

upon a deficiency of evidence or misapprehension of the law, the case should be 
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remanded so that the evidence may be considered in its true legal light”) (internal 

marks, alterations, and citations omitted). 

CONCLUSION

“[T]he Full Commission erred as a matter of law when it . . . affirmed the 

deputy commissioner’s order dismissing plaintiff’s claim with prejudice for failure to 

prosecute without . . . the necessary findings of fact and conclusions of law to support 

its order.” Lee, 162 N.C. App. at 133, 590 S.E.2d at 408. “The order of dismissal is 

reversed and this cause remanded to the Industrial Commission for proceedings 

consistent with this opinion.” Id. at 133-34, 590 S.E.2d at 408.

REVERSED AND REMANDED.

Judge DILLON concurs in part, dissents in part, with separate opinion.

Judge HAMPSON concurs.
No. COA18-982 – Lauziere v. Stanley Martin Cmtys, LLC

DILLON, Judge, concurring in part and dissenting in part.

The Full Commission has entered an order dismissing Plaintiff’s workers’ 

compensation claim. The majority concludes that the Full Commission’s order must 

be reversed and remanded because several of the Commission’s findings are not 

supported by the evidence and that the remaining findings do not support an order 

of dismissal. I conclude, however, that the appropriate mandate is for the Full 

Commission’s order to be vacated and remanded for further proceedings.2 I believe 

that it would not be an abuse of discretion for the Full Commission to have ordered 

the dismissal based on its findings that I conclude are supported by the evidence. 

(The majority concludes that several of the Commission’s findings are not supported 

by the evidence. I, however, agree with the majority only with respect to some of 

these findings.)

In any event, I do not believe it would be appropriate for our Court to simply 

affirm the Full Commission based on the supported findings because we cannot know 

 

2 The majority’s mandate is “reversed and remanded.” “Reverse” and “vacate” are often used 

interchangeably by appellate judges. There is, indeed, some gray areas as to when “reverse” is the 

appropriate mandate and when “vacate” may be more appropriate. To me, “vacate” generally suggests 

(absent any clearer instructions in the opinion) that an order is being eliminated but not being replaced 

with a contrary order, so that “vacate and remand” generally suggests that the trial court is to 

reconsider the matter, but still could reach the same result. “Reverse,” though, suggests that the trial 

court got it wrong, so that “reverse and remanded” suggests that the trial court either enter a new 

order as directed or reconsider the matter, but may not reach the same result. Admittedly, I may not 

have always been consistent in my usage of these terms.

In any event, in the present case, I conclude that the trial court’s order must be vacated, so 

that on remand the trial court could still reach the same result, dismissal, as I believe that there are 

other findings in the order to support dismissal. The majority, though, states that the trial court’s 

order to dismiss was incorrect “as a matter of law” because it failed to make “the necessary findings of 

fact and conclusions of law to support its order.”
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

DILLON J., concurring in part and dissenting in part

2

how the Commission would have exercised its discretion absent the unsupported 

findings. Therefore, my vote is to vacate and remand, such that the sanction of 

dismissal may still be considered by the Commission on remand.

1. Background

The findings, supported by the evidence, tend to show as follows:

Plaintiff, a residential real estate broker, seeks workers’ compensation 

benefits, alleging that in September 2015, she suffered injuries to her back, neck, 

bilateral knees, and hips while trying to manually close a garage door at a home.

Plaintiff, however, suffered injuries prior to the garage door incident on a 

number of occasions. For instance, in June 2015, just three months prior to the 

garage door incident, Plaintiff was injured in an automobile accident, for which she 

received medical treatment. Also, Plaintiff had previously sought workers’ 

compensation benefits for back and knee injuries, unrelated to her present claim.

Defendants initially denied liability for Plaintiff’s September 2015 injuries, 

pending their investigation of the matter. As part of their investigation, Defendants 

sought discovery from Plaintiff of her medical history to determine whether, and to 

what extent, Plaintiff was injured by the garage door incident. However, Plaintiff 

has repeatedly failed to fully comply with Defendants’ discovery requests, even 

though she has been compelled to do so by the Commission.
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

DILLON J., concurring in part and dissenting in part

3

In the meantime, Plaintiff has undergone medical treatment at her own 

direction, which included major back surgery. Further, Plaintiff took no action to 

prosecute this matter for over a year, while Defendants continued to seek discovery 

of Plaintiff’s medical history. Accordingly, in June 2017, Defendants moved to 

dismiss Plaintiff’s claim.

In September 2017, the Deputy Commission dismissed Plaintiff’s claim. 

Plaintiff appealed to the Full Commission. In its 2018 Opinion and Award, the Full 

Commission, agreeing with the Deputy Commissioner, ordered the matter dismissed 

with prejudice.

II. Analysis

The majority recognizes that the Full Commission, in the exercise of its 

discretion, may dismiss a matter where the Plaintiff engages in delay tactics.

The majority also recognizes that the Commission must consider three factors 

before dismissing a matter, citing Lee v. Roses, 162 N.C. App. 129, 590 S.E.2d 404 

(2004) and Lentz v. Phil’s Toy Store, 228 N.C. App. 416, 747 S.E.2d 127 (2013).

First, the Full Commission must consider “whether the plaintiff acted in a 

manner which deliberately or unreasonably delayed the matter[.]” Lee, 162 N.C. App. 

at 133, 590 S.E.2d at 407. The majority is not contending that this prong was not 

satisfied. Indeed, the Commission did consider this factor, determining that Plaintiff 

had caused the “unreasonable delay[]” and that she continued to engage in the 
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

DILLON J., concurring in part and dissenting in part

4

“unreasonable delay” of adjudication of the matter. And this determination could 

certainly be inferred from the findings and the evidence. For instance, the 

Commission found that Plaintiff repeatedly failed to fully comply with the discovery 

requests, even after being ordered by the Commission to do so. As found by the 

Commission, Plaintiff admitted to being lax in responding to the discovery requests 

and that she did nothing for over a year to prosecute her claim, all the while seeking 

medical treatment at her own direction.

Second, under Lee, the Commission must consider “the amount of prejudice, if 

any, to the defendant [caused by the plaintiff’s failure to prosecute][.]” Id. at 133, 590 

S.E.2d at 407. The order shows that the Commission considered this factor. The 

majority contends that certain findings in the order supporting the Commission’s 

findings as to this prong are not supported by the evidence. I disagree.

The Commission expressly found, in Finding 24, that Defendants were 

“materially prejudiced by Plaintiff’s failure to respond to discovery and otherwise 

prosecute her claim for a year” in that Plaintiff’s actions deprived Defendants of “any 

meaningful opportunity to investigate . . . or to direct [Plaintiff’s] care[.]” The 

majority, though, states that there is no evidence that Defendants were materially 

prejudiced, correctly noting that an employer’s ability to direct an employee’s medical 

care is triggered only after the employer has accepted liability.
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

DILLON J., concurring in part and dissenting in part

5

However, this misses the point that the right of an employer who has initially 

denied liability to direct care can still be subsequently triggered once the employer 

accepts liability. See Kanipe v. Lane Upholstery, 141 N.C. App. 620, 624, 540 S.E.2d 

785, 788 (2000). Here, the Commission essentially found that Plaintiff’s improper 

conduct caused Defendants to lose its opportunity to make an informed decision to 

trigger their right to direct care.

Certainly, an employer should not be required to accept liability right away 

before it has investigated an alleged accident. For example, the General Assembly 

has provided in N.C. Gen. Stat. § 97-27(a) that an employer has the right to require 

its employee to submit to an examination, the purpose of which, according to our 

Court, “is to enable the employer to ascertain whether the injury is work-related or 

not and thus whether the claim is indeed compensable.” Id. at 624, 540 S.E.2d at 

788. In the same way, an employer has the right to discoverable medical records to 

ascertain whether an injury, in fact, was the result of a work-place accident.

To this end, an employee is required to provide her employer with the 

discoverable information necessary for the employer to make an informed decision 

whether to accept liability and exercise its right to direct care. This obligation is 

similar to an employee’s statutory obligation to provide timely notice of her accident, 

the purpose of which (as described by our Supreme Court) “allows the employer to 

provide immediate medical diagnosis and treatment with a view to minimiz[e] the
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

DILLON J., concurring in part and dissenting in part

6

seriousness of the injury, and it facilitates the earliest possible investigation of the 

circumstances surrounding the injury.” See, e.g., Booker v. Duke Med. Ctr., 297 N.C. 

458, 481, 256 S.E.2d 189, 204 (1979). Indeed, our Court has recognized in such 

situations that “[p]ossible prejudice occurs where the employer is not able to provide 

immediate medical diagnosis and treatment with a view to minimiz[e] the 

seriousness of the injury and where the employer is unable to sufficiently investigate

the incident causing the injury.” Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 173, 

573 S.E.2d 703, 706 (2002) (emphasis added).

Here, given Plaintiff suffered prior injuries and given the benign nature of the 

accident (closing a garage door) as the cause of Plaintiff’s extensive injuries, it was 

certainly reasonable for Plaintiff’s employer to require access to her discoverable 

medical records before accepting liability for her claimed new injuries. Plaintiff, 

though, thwarted Defendants’ ability to investigate by withholding her medical 

records for years, all the while directing her own care. If those records demonstrate 

that Plaintiff did not suffer any further injury due to the garage door incident, then 

the dismissal by the Commission is of no harm to Plaintiff, as she would lose anyway. 

However, if the records are, indeed, favorable to Plaintiff’s case, then Defendants 

have lost the opportunity to accept liability based on a knowledge of those records, 

and to direct Plaintiff’s care these past several years.
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

DILLON J., concurring in part and dissenting in part

7

Further, I disagree with the majority that Finding 25, supporting the second 

Lee factor is not supported by the evidence. Specifically, the Commission found that 

Defendants had “borne substantial monetary expense” pursuing Plaintiff’s medical 

records. Admittedly, as the majority points out, there is no evidence in the record as 

to the precise amount of money or time Defendants actually spent chasing discovery 

for two years. However, the Commission made no finding as to the precise money or 

time spent. What the Commission did find – that Defendants spent some unknown 

amount of resources that was “substantial” – can be inferred from the evidence. For 

instance, there is evidence that Defendants’ attorneys had to prepare a second set of 

discovery requests when Plaintiff’s responses to the first set were incomplete; 

Defendants’ attorneys had to seek (successfully after a hearing on the matter) an 

order compelling Plaintiff to fully comply with the discovery request; and after 

Plaintiff continued directing her own medical treatment without prosecuting her 

claim for over a year and without complying with the Commission’s order to compel, 

Defendant’s attorneys sought a dismissal, first before the Deputy Commissioner, and 

then, after preparing a brief for attending a hearing, before the Full Commission.

Finding 25 is similar to a finding made in Lentz sustained by our Court in 

affirming the Commission’s order dismissing the claim of the plaintiff in that case. 

In Lentz, the Commission found that “Plaintiff’s failure to prosecute this claim has 

resulted in prejudice to defendants, who have expended considerable time and 
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

DILLON J., concurring in part and dissenting in part

8

resources attempting to defend the claim. [Defendants] have repeatedly prepared for 

hearing and appeared at hearings with witnesses, and plaintiff has failed to appear, 

even when ordered to appear.” 228 N.C. App. at 423, 747 S.E.2d at 132.

I have reviewed the Lentz record on appeal, and I found nothing in that record 

showing the exact amount of time or money the defendants spent. The Commission’s 

finding that the defendants expended “considerable” time and resources, though, was 

sustained by our Court: “On this record, we determine that the Commission’s 

findings of fact were supported by competent evidence and its conclusions of law were 

supported by its findings of fact.” Id. at 423, 747 S.E.2d at 132.

I see no difference between “considerable,” as used by the Commission in Lentz, 

and “substantial,” as used by the Commission here. Accordingly, I disagree with the 

majority and conclude that the record supports Finding 25.

Under the third Lee prong, the Full Commission must consider “the reason, if 

one exists, that sanctions short of dismissal would not suffice.” Lee, 162 N.C. App. at 

133, 590 S.E.2d at 407. Here, the Full Commission expressly considered this factor. 

It determined that lesser sanctions would not suffice, citing three separate reasons: 

(1) Plaintiff delayed in prosecuting her claim for over a year; (2) Defendants’ ability 

to litigate and defend the claim was “irrevocably degraded” by Plaintiff’s delay and 

by her failure to fully comply with discovery; and (3) Defendants had incurred 
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

DILLON J., concurring in part and dissenting in part

9

litigation expenses due to Plaintiff’s conduct Defendants could never recoup from 

Plaintiff were Plaintiff ordered to pay Defendants for these expenses.

I disagree with the majority’s conclusion that there is no evidence that 

Defendants’ ability to litigate and defend has been “irrevocably degraded,” as it can 

be inferred from the record that Plaintiff has undergone extensive treatment without 

Defendants’ direction and that Plaintiff has delayed the matter for the purpose of

completing her treatment before having to reengage with Defendants in this matter.

I agree, however, with the majority that there is no evidence regarding 

Plaintiff’s inability to pay Defendants’ expenses if ordered to do so. However, in my 

view, it would not be an abuse of discretion on remand for the Commission to 

otherwise determine that lesser sanctions would still be inappropriate based on the 

Commission’s other findings.

III. Conclusion

I may not have made all of the findings regarding Plaintiff’s conduct, as made 

by the Commission or have exercised discretion in the same way. But, here, the 

Commission is the factfinder and is empowered with discretion to order a dismissal. 

Such order should be affirmed where it cannot be said that the Commission abused 

its discretion when its decision is supported by the findings and evidence.

But, here, not all of the Commission’s findings are supported by the evidence. 

I do conclude, however, that the remaining findings are sufficient to support a 
LAUZIERE V. STANLEY MARTIN CMTYS, LLC

DILLON J., concurring in part and dissenting in part

10

dismissal in the exercise of discretion. However, I cannot conclude that the 

Commission would reach the same result based on the remaining findings. Therefore, 

my vote is to vacate the dismissal order and remand the matter for further 

proceedings and that, on remand, the Commission, in its discretion, may order 

dismissal or order lesser sanctions.