HUDSON, Justice.
Defendant, the City of Charlotte, appealed the opinion and award of the North Carolina Industrial Commission awarding plaintiff, David Easter-Rozzelle, benefits arising out of a 29 June 2009 automobile accident. Easter-Rozzelle v. City of Charlotte, ___ N.C. App. ___, 780 S.E.2d 244 (2015). On appeal, the Court of Appeals reversed, holding that because plaintiff had elected to settle his personal injury claim against the third-party tortfeasor without the consent of defendant and had received disbursement of the settlement proceeds, plaintiff was barred from pursuing compensation for that claim under the Workers' Compensation Act (Act). Id. at ___, 780 S.E.2d at 250. Because the Act protects both the employer's lien against third-party proceeds and the employee's right to pursue workers' compensation benefits in these circumstances, we reverse.
On 18 June 2009, while working as a utility technician, plaintiff injured his neck and shoulder when he slipped while handling a manhole cover. Defendant City, plaintiff's self-insured employer, accepted plaintiff's claim as compensable under the Act by filing a Form 60 with the North Carolina Industrial Commission. Defendant authorized treatment with Scott Burbank, M.D. at OrthoCarolina for plaintiff's injury. Dr. Burbank restricted plaintiff from work until 29 June 2009, at which point plaintiff contacted and informed defendant that he was still in too much pain to report to work. Following defendant's instructions, plaintiff contacted Dr. Burbank's office, which informed plaintiff that they would provide him with an out-of-work note that he could pick up at their office.
While driving to Dr. Burbank's office to retrieve the note, plaintiff was involved in an automobile crash and suffered a traumatic brain injury. That same day, after being transported to the hospital, plaintiff gave his wife a card containing the name and contact information for his supervisor, Mr. William Lee, and asked her to call Mr. Lee and inform him of the incident. Plaintiff's wife contacted Mr. Lee and told him that plaintiff had been in a wreck while traveling to Dr. Burbank's office to get an out-of-work note and that plaintiff would not be coming to work that day. In the ensuing three-day period, plaintiff had at least two conversations with Mr. Lee about the circumstances of the injury. Plaintiff also informed his safety manager and multiple employees in defendant's personnel office that he had been in a car crash on the way to his doctor's office to get an out-of-work note for defendant.
Plaintiff underwent surgery in May and November 2010 for his shoulder injury. On 18 November 2011, Dr. Burbank assigned plaintiff a ten percent permanent partial disability rating to the right shoulder and imposed permanent work restrictions. Defendant has continued to pay plaintiff weekly temporary total disability benefits.
Meanwhile, plaintiff received treatment for the traumatic brain injury sustained in the car wreck from David R. Wiercisiewski, M.D. of Carolina Neurosurgery & Spine and Dr. Bruce Batchelor of Charlotte Neuropsychologists. Dr. Wiercisiewski diagnosed plaintiff with a concussion and post-concussion syndrome, and both physicians referred plaintiff to a psychologist for ongoing post-traumatic stress disorder symptoms, memory loss, and cognitive deficits.
Plaintiff retained separate attorneys for his personal injury claim relating to the crash and for his workers' compensation claim relating to his original shoulder injury. Plaintiff's personal injury lawyer informed his personal health insurance carrier, Blue Cross Blue Shield, that he was not "at work" when he sustained the injuries from the crash, and therefore, medical bills for these injuries should be covered by Blue Cross
As his workers' compensation claim proceeded, plaintiff and defendant agreed to mediation. At the 9 April 2012 mediation, plaintiff's workers' compensation attorney first learned that plaintiff had been traveling to the office of his authorized physician to get an out-of-work note when the wreck occurred. The mediation was suspended and plaintiff filed an amended Form 18 Notice of Accident to Employer in which he restated his initial claim for injuries and added a claim for his closed head and brain injury which occurred while he "was driving to see authorized treating physician and was involved in a car wreck." On 13 December 2012, defendant filed a Form 61 with the Commission denying the head injury claim. In its filing, defendant stated that it had no notice of the car accident or that plaintiff claimed that the car accident was related to his workers' compensation claim until the April 2012 mediation. Defendant asserted that plaintiff should be estopped from claiming compensation for the head injury because "the motor vehicle accident resulted in a settlement with a third party and the distribution of the settlement funds without preserving defendant's lien." Because the parties were unable to agree on compensability of the head injury, plaintiff filed a Form 33 with the Commission in January 2013 requesting that the claim be assigned for a hearing.
Deputy Commissioner Phillip A. Holmes heard this matter on 11 December 2013. On 7 March 2014, Deputy Commissioner Holmes entered an opinion and award denying plaintiff's claim for benefits. The deputy commissioner concluded that N.C.G.S. § 97-10.2 "provides the only method in which the employer's lien is satisfied from a third party settlement." The deputy commissioner further concluded that under Hefner v. Hefner Plumbing Co., 252 N.C. 277, 113 S.E.2d 565 (1960), when an employee settles and disburses funds from a third-party settlement without preserving the defendant's lien, or applying to a superior court judge to reduce or eliminate the lien, the employee is barred from recovering under the Act. Accordingly, Deputy Commissioner Holmes determined that plaintiff here was estopped from claiming benefits from his 29 June 2009 car wreck because he did not contend it was compensable until after the third-party claim settled and the settlement proceeds were distributed. Plaintiff appealed to the Full Commission.
The Full Commission heard the case on 15 August 2014, and on 2 March 2015, issued an opinion and award reversing the decision of the deputy commissioner. In so doing, the Commission considered the record of the proceedings before the deputy commissioner, which included the parties' stipulations, exhibits, and testimony from witnesses, including plaintiff and his wife. The Commission assigned credibility to the testimony of plaintiff and his wife and found that plaintiff was not aware that his injuries from the car crash were arguably compensable until the April 2012 mediation. Further, the Commission found and concluded that plaintiff provided timely actual notice of the car wreck to defendant and that defendant knew of the collision and its attendant circumstances. Regarding defendant's lien and the applicability of Hefner, the Commission found, in relevant part:
(Punctuation inconsistencies in original.) Furthermore, the Commission concluded that
(Punctuation inconsistencies in original.) Accordingly, the Commission awarded plaintiff benefits arising out of the 29 June 2009 automobile crash and ordered defendant to pay all related medical expenses incurred by plaintiff when those bills are approved by the Commission under established procedures. The Commission further ordered that defendant be reimbursed "for its statutory lien against the third party settlement in this matter when the subrogation amount is determined by agreement of the parties or by a Superior Court Judge." The Commission ordered defendant to continue paying plaintiff temporary total disability benefits. Defendant appealed from the Commission's opinion and award.
In a unanimous opinion filed on 1 December 2015, with one judge concurring separately, the Court of Appeals reversed the Full Commission. Easter-Rozzelle, ___ N.C. App. at ___, 780 S.E.2d at 250. The majority opined that the Commission misstated the law by asserting that Hefner precluded an employee from recovering both from his employer under the Act and from a third-party tortfeasor in an action at law. Id. at ___, 780 S.E.2d at 248. The majority noted that the provision requiring an employee to elect between the two remedies was removed in 1933 and observed that Hefner recognized that an employee could pursue both remedies under the formerly applicable statute, N.C.G.S. § 97-10. Id. at ___, 780 S.E.2d at 248; see also Hefner, 252 N.C. at 282-83, 113 S.E.2d at 569 ("Indeed the applicable statute contemplates that where employee pursues his remedy against the employer and against the third party, a determination of benefits due under the Act must be made prior to the payment of funds recovered from the third party.").
Furthermore, relying upon this Court's decision in Pollard v. Smith, 324 N.C. 424, 426, 378 S.E.2d 771, 773 (1989), the Court of Appeals majority stated that under the current statute, N.C.G.S. § 97-10.2, a settlement requires the written consent of the employer in order to be valid, even when the case is settled in accord with subsection (j), which allows either party to apply to the superior court to determine the subrogation amount of the employer's lien. Id. at ___, 780 S.E.2d at 248-49. The majority opined that the General Assembly intended for employers to have involvement and consent in the settlement process and added that allowing defendant to be reimbursed "from settlement funds already paid and disbursed does not accomplish the statute's purpose and intent, and is unfair to Defendant." Id. at ___, 780 S.E.2d at 249-50. The majority concluded that, "[i]n light of the requirement of N.C. Gen.[ ]Stat. § 97-10.2(h) that the employer provide written consent to the Plaintiff's settlement with a third party, the reasoning of the Hefner case is applicable here." Id. at ___, 780 S.E.2d at 250. Because plaintiff here settled his claim with the third party and disbursed the proceeds without the written consent of defendant, and without an order from the superior court or the Commission, the majority held that plaintiff was barred from recovery under the Act. Id. at ___, 780 S.E.2d at 250.
Plaintiff sought this Court's review of the Court of Appeals' unanimous decision. On 8
Plaintiff argues that in reversing the Full Commission, the Court of Appeals relied upon cases that had been superseded by statute, including Hefner and Pollard, and misinterpreted the provisions of the Act. We agree, and thus reverse the decision of the Court of Appeals.
We review an order of the Full Commission to determine only "whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); see also N.C.G.S. § 97-86 (2015). "The Commission's conclusions of law are reviewed de novo." McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004) (citation omitted). We review decisions of the Court of Appeals for errors of law. Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609, 611, 781 S.E.2d 282, 284 (2016) (citing N.C. R. App. P. 16(a)).
Here the Court of Appeals majority concluded that the Commission misstated the holding in Hefner and that Hefner bars plaintiff from recovering compensation under the Act. This reliance on Hefner is misplaced because the provisions relating to claims against third-party tortfeasors were substantially amended in 1959, and Hefner was decided under the previous statute. Further, we note that the Commission did slightly misstate this Court's holding in Hefner by suggesting that under the old statutory framework, an employee could never recover both under a workers' compensation claim and against a third-party tortfeasor. This is understandable on the part of the Commission in that the Court in Hefner was applying N.C.G.S. § 97-10, a "somewhat prolix enactment," Lovette v. Lloyd, 236 N.C. 663, 667, 73 S.E.2d 886, 890 (1953), which was the last in a line of provisions not heralded for their clarity. See A Survey of Statutory Changes in North Carolina in 1943, 21 N.C. L. Rev. 323, 382 (1943) [hereinafter Survey] ("Section 11 of the Act has always been a source of difficulty." (footnote omitted)).
The original Workers' Compensation Act, enacted in 1929, required an employee to choose between recovering compensation from his employer under the Act or recovering damages against the third-party tortfeasor. The North Carolina Workmen's Compensation Act, ch. 120, sec. 11, 1929 N.C. Pub. [Sess.] Laws 117, 122. Specifically, section 11 provided that when an employee
Id. (emphasis added). This express "election of remedies" language was removed in 1933 when the General Assembly deleted section 11 and replaced it with a new version, Act of May 12, 1933, ch. 449, sec. 1, 1933 N.C. Pub. [Sess.] Laws 798, 798, which was further amended in 1943, Act of Mar. 8, 1943, ch. 622, sec. 1, 1943 N.C. Sess. Laws 728, 728-29. The amended section, which was codified at N.C.G.S. § 97-10, provided that "after the Industrial Commission shall have issued an award, or the employer or his carrier has admitted liability ... the employer or his carrier shall have the exclusive right to commence an action" against the third party for a period of six months, after which the employee possessed the right to bring the action.
A variation of the latter situation arose in Ward v. Bowles, 228 N.C. 273, 45 S.E.2d 354 (1947). There, after the plaintiff was injured in a car accident while in the course of his employment, he brought a negligence action against the third party. Id. at 274-75, 45 S.E.2d at 354-55. The third-party defendant contended that, because the plaintiff had never filed a claim for compensation against his employer, and because there had been no award issued by the Commission and no admission of liability by the employer, the plaintiff was precluded from pursuing damages against the defendant under N.C.G.S. § 97-10. Id. at 274-75, 45 S.E.2d at 354-55. The Court disagreed, concluding that "[w]hile the rights of the employee, as against a third party after claim for compensation is filed, are limited, G.S. 97-10, there is nothing in the Act which denies him the right to waive his claim against his employer and pursue his remedy against the alleged tort-feasor by common law action for negligence." Id. at 275, 45 S.E.2d at 355. Thus, while N.C.G.S. § 97-10, as interpreted, allowed an employee who had filed a claim for compensation against his employer to also seek recovery from the third party in the limited circumstances prescribed by the statute, section 97-10 still provided for an election of remedies for a plaintiff who sought to avoid those limitations. This decision became the basis for the holding in Hefner.
In Hefner, after the plaintiff was injured in a car accident, he informed the insurance carrier that he was making no workers' compensation claim at that time and was proceeding against the third-party tortfeasor. 252 N.C. at 278, 113 S.E.2d at 565-66. The plaintiff reached a settlement with the third party, and the settlement funds were disbursed. Id. at 278-79, 113 S.E.2d at 566-67. The plaintiff then filed a workers' compensation claim seeking to have the defendant insurance carrier pay a proportionate part of the attorney's fee in the third-party action. Id. at 278, 113 S.E.2d at 566. The Court first noted that, although N.C.G.S. § 97-10 had recently been repealed and replaced with new provisions, the new provisions did not apply in Hefner based on the date of the plaintiff's injuries. Id. at 281, 113 S.E.2d at 568. The Court then stated:
Id. at 282, 113 S.E.2d at 568-69. The Court did recognize that an employee could recover compensation under the Act and also seek damages from a third party, but in accordance with Ward, see 228 N.C. at 275, 45 S.E.2d at 355 ("[T]he rights of the employee, as against a third party after claim for compensation is filed, are limited, G.S. 97-10...."), concluded that in those cases the specific procedures of the section needed to be followed. Hefner, 252 N.C. at 282-83, 113 S.E.2d at 569 ("Indeed the applicable statute contemplates that where [the] employee pursues his remedy against the employer and against the third party, a determination of benefits due under the Act must be made prior to the payment of funds recovered from the third party.").
Accordingly, the Court of Appeals majority here correctly noted that the "Hefner opinion was not a blanket preclusion of an employee's right to recover from his employer as well as the third party tortfeasor under N.C. Gen.[]Stat. § 97-10." Easter-Rozzelle, ___ N.C. App. at ___, 780 S.E.2d at 248 (majority opinion). Nonetheless, Hefner did apply an election of remedies that is incompatible with the current statutory framework.
In 1959 the General Assembly repealed N.C.G.S. § 97-10 and enacted N.C.G.S. §§ 97-10.1 and 97-10.2. Act of June 20, 1959, ch. 1324, sec. 1, 1959 N.C. Sess. Laws 1512, 1512-15. Notably, these new provisions gave to the employee the exclusive right to bring the third-party action for the first twelve months from the date of the injury. Id. at 1512-13. More importantly, subsection 97-10.2(i), which was not addressed here by the Court of Appeals, provides, as it has continuously since 1959, that:
N.C.G.S. § 97-10.2(i) (2015) (emphasis added); see also ch. 1324, sec. 1, 1959 N.C. Sess. Laws at 1515. We can hardly envision a stronger legislative mandate against an election of remedies doctrine. The Court's pronouncement in Hefner that among an employee's remedies, "he may waive his claim against his employer and pursue his remedy against the third party," 252 N.C. at 282, 113 S.E.2d at 568-69, is contrary to the express language of N.C.G.S. § 97-10.2. Accordingly, Hefner does not apply here to bar plaintiff's claim under the Act.
Nor does the employer's lack of consent to the settlement revive Hefner's application for a new era. See Easter-Rozzelle, ___ N.C. App. at ___, 780 S.E.2d at 250 ("In light of the requirement of N.C. Gen.[]Stat. § 97-10.2(h) that the employer provide written consent to the Plaintiff's settlement with a third party, the reasoning of the Hefner case is applicable here."). Subsection (h) of the original N.C.G.S. § 97-10.2 required the employee or employer to obtain the written consent of the other before making a settlement or accepting payment from a third party and provided that no release or agreement obtained without consent was valid or enforceable. N.C.G.S. § 97-10.2(h) (1959); see also ch. 1324, sec. 1, 1959 N.C. Sess. Laws at 1514-15. In 1983 the legislature added N.C.G.S. § 97-10.2(j), which provided:
Act of June 30, 1983, ch. 645, sec. 1, 1983 N.C. Sess. Laws 604, 604. In Pollard we opined that "subsection (j) must be read in pari materia with the rest of the section," specifically subsection (h), and therefore, written consent was still required before a case was settled in accord with subsection (j). 324 N.C. at 426, 378 S.E.2d at 773; see also Williams v. Int'l Paper Co., 324 N.C. 567, 572, 380 S.E.2d 510, 513 (1989) ("This statute, by its terms, makes it clear that neither the employer nor the employee may make a valid settlement without the written consent of the other.... N.C.G.S. § 97-10.2(j) does not supersede § 97-10.2(h) and subsection (j) should be read in pari materia with the other provisions of the statute."). Here the Court of Appeals majority correctly recited the Court's holding in Pollard, but failed to account for the statutory revisions that followed.
Specifically, in 1991 the legislature substantially overhauled subsections (h) and (j), Act of June 26, 1991, ch. 408, sec. 1, 1991 N.C. Sess. Laws 768, 771-72, and made further revisions to subsection (j) in 1999 and 2004, Act of June 9, 1999, ch. 194, sec. 1, 1999 N.C. Sess. Laws 401, 401; Act of July 18, 2004, ch. 199, sec. 13.(b), 2003 N.C. Sess. Laws (Reg. Sess. 2004) 786, 792. Unlike the applicable statute in Pollard, the current version of N.C.G.S. § 97-10.2 provides that no consent is required when a case is settled in accord with subsection (j). Specifically, subsection (h) states:
N.C.G.S. § 97-10.2(h) (2015) (emphases added). Furthermore, subsection (j) has been amended to further obviate the need for consent:
Id. § 97-10.2(j) (2015) (emphasis added). Accordingly, it is clear that consent is no longer required for a valid settlement and that either party can avail itself of subsection (j). See, e.g., Fogleman v. D&J Equip. Rentals, Inc., 111 N.C. App. 228, 232, 431 S.E.2d 849, 852 ("Pollard endowed subrogation lienholders... with the right not to have their lien abridged without their consent. The amended version of section 97-10.2 affected that right by allowing a party to apply to Superior Court to have it determine the amount of the lien, regardless of whether the lienholder had consented."), disc. rev. denied, 335 N.C. 172, 436 S.E.2d 374 (1993).
Defendant attempts to draw a distinction between the situation here and the statute based on the settlement funds having been disbursed, asserting that allowing plaintiff to pursue workers' compensation benefits is unfair when defendant had no participation in the settlement process. The court below
Further, we note that an employer's lien interest in third-party proceeds is "mandatory in nature," and thus, there is no "windfall of a recovery" to plaintiff here because defendant is entitled to recover the amount of its lien by means of a credit against plaintiff's ongoing workers' compensation benefits. Radzisz v. Harley Davidson of Metrolina, Inc., 346 N.C. 84, 88-90, 484 S.E.2d 566, 568-70 (1997) (holding that although the defendants had denied liability and there had been no award from the Commission, as contemplated by subsection (f), the defendants were still entitled to a lien interest in settlement proceeds that had been disbursed to the plaintiff). Subsection (j) contains no temporal requirement, and either party here may apply to the superior court judge to determine the amount of defendant's lien. As the Commission found:
The Commission's approach was entirely consistent with the current statutes, which protect both the employee's right to pursue his workers' compensation claim and the employer's right to reimbursement if a third party also has some liability for the injuries.
Moreover, while the Court of Appeals expressed concern with the fairness of the notice given by plaintiff here, we conclude that the applicable statute, N.C.G.S. § 97-22, as well the unchallenged findings of the Commission, addresses this concern. Specifically, the statute provides:
N.C.G.S. § 97-22 (2015); see also N.C.G.S. § 97-18(j) (2015) ("The employer or insurer shall promptly investigate each injury reported or known to the employer and at the earliest practicable time shall admit or deny the employee's right to compensation or commence payment of compensation....").
Here the Commission made findings and conclusions that plaintiff gave defendant notice of the car accident. The Commission found, in relevant part:
We note that these findings were unchallenged by defendant, and they therefore are binding on our review. See Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 423, 760 S.E.2d 732, 738 (2014) ("[W]here findings of fact are not challenged and do not concern jurisdiction, they are binding on appeal." (citing, inter alia, N.C.G.S. § 97-86 (2013))). Further, the Commission concluded:
This conclusion is supported by the unchallenged findings of fact.
Accordingly, defendant had an opportunity to participate in the settlement process with the third-party tortfeasor but did not do so. Plaintiff had no reason to delay negotiations with the third party or disbursement of the settlement proceeds because, based on the unchallenged findings of the Commission, he did not know that his injuries were potentially compensable under the Act. On the other hand, because defendant received actual notice, it had an opportunity to promptly investigate the accident and determine its compensability. Had defendant done so, it would have discovered what became apparent in the 9 April 2012 mediation — that plaintiff suffered compensable injuries — and it could have participated in the settlement process.
In sum, we hold that the Commission correctly concluded that Hefner is inapplicable here and that plaintiff had not waived his right to compensation under the Act. Further, the Commission correctly determined that once the subrogation lien amount is determined by agreement of the parties or by a superior court judge, defendant is entitled to reimbursement of its lien from the benefits due to plaintiff. Accordingly, we reverse the decision of the Court of Appeals, and remand this case to that court for further remand to the Commission for additional proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
Survey at 382; see also Whitehead & Anderson, Inc. v. Branch, 220 N.C. 507, 17 S.E.2d 637, (1941) (holding that an employer who had paid benefits to a deceased employee's dependents under the Act could not proceed in a wrongful death action against an independent third-party tortfeasor when the administrator of the deceased employee had already obtained a judgment against that third party). This may explain why in 1943 the legislature added the word "exclusive" to the employer's right to bring the action, and also provided that the right existed not just after an award by the Commission, but also upon an admission of liability by the employer. Survey at 382-83; see also ch. 622, sec. 1, 1943 N.C. Sess. Laws at 728-29.
