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NO. COA11-476 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 RAYMOND MALLOY, Employee, Plaintiff, v. DAVIS MECHANICAL, INC., Employer, and STONEWOOD INSURANCE COMPANY, Carrier, Defendants. North Carolina Industrial Commission I.C. No. 89375

Appeal December

by

defendants by the

from

opinion

and

award

entered

29

2010

North

Carolina

Industrial

Commission.

Heard in the Court of Appeals 11 October 2011. The Law Offices of William K. Goldfarb, Goldfarb, for plaintiff-appellee. by William K.

Brooks, Stevens & Pope, P.A., by Bambee B. Blake and Ginny P. Lanier, for defendants-appellants. HUNTER, Robert C., Judge. Davis Mechanical, Inc. ("Davis") and Stonewood Insurance

Company (collectively "defendants") appeal from the Industrial Commission's opinion and award in which the Commission

-2determined that the mediated settlement agreement reached

between defendants and Raymond Malloy ("plaintiff") was not fair and just. Defendants argue that the Commission erred in its

determination, or, alternatively, that the Commission erred in denying defendants' motion to reconsider and amend the opinion and award. After careful review, we reverse and remand. Background On the date of injury, plaintiff was employed as a truck driver for Davis. Plaintiff's job required him to deliver On

animal feed to farms and leave receipts for the purchaser. 19 August 2008, plaintiff inadvertently disturbed a

hornet's He was

nest while placing a receipt in a customer's mailbox. stung approximately 29 times.

Plaintiff subsequently suffered

an allergic reaction and was hospitalized on 20 August 2008. Plaintiff was in the hospital for seven days, during which time he had recurrent seizures with brought his hornet on by "significant Plaintiff

envenomation

associated

bites[.]"

continues to have seizures and has not returned to work since 19 August 2008. Plaintiff received temporary total disability benefits from defendants from 18 September 2008 through 8 October 2008.1

1

These payments were made without prejudice per Form 63.

-3Defendants subsequently denied plaintiff's claim and plaintiff requested a hearing before the Commission. On 21 April 2009, the parties participated in a mediation. Plaintiff was represented by counsel. At the mediation,

plaintiff presented medical records and bills which showed that plaintiff had incurred $56,216.33 in medical expenses related to his hospitalization and seizure condition. His personal

insurance carrier paid a significant portion of these medical expenses; however, plaintiff was responsible for paying

$11,525.00 out of pocket. matter for a or total lump

The parties agreed to settle the sum of $10,000.00. explicitly The mediation that

agreement,

"clincher"

agreement,

stated

defendants were "not undertaking to pay any medical expenses[.]" The agreement further stated that plaintiff's settlement would be held in trust by plaintiff's attorney because it was subject to a child support lien. agreement were The terms of the signed mediation into an "Agreement of Final

incorporated

Settlement and Release" and sent to plaintiff for his signature. Plaintiff refused to sign the agreement. On 4 June 2009,

defendants requested an expedited hearing before the Commission, seeking enforcement of the mediation agreement. Plaintiff's

-4counsel withdrew from the matter and plaintiff retained a new attorney. On 22 December 2009 and 19 January 2010, this matter was heard before the Deputy Commissioner. The only issue for

resolution was whether the mediation agreement was enforceable. On 20 May 2010, the Deputy Commissioner issued an opinion and award concluding that: (1) the mediation agreement contained the necessary language and substance required by N.C. Gen. Stat.

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