22004758.doc

NORTH CAROLINA INDUSTRIAL COMMISSION
I.C. NO. 22-004758, MARY K. TISDALE, Employee, Plaintiff v. CHOICE HEALTH MANAGEMENT SERVICES, LLC,  Employer, SELF-INSURED (PMA MANAGEMENT CORP., Third-Party Administrator), Defendant.
ORDER for the Full Commission by ADRIAN A. PHILLIPS, Commissioner.
Filed: October 24, 2025.
This matter is before the Full Commission on Plaintiff's appeal from the July 30, 2024, Order of Commissioner James C. Gillen dismissing Plaintiff's appeal to the North Carolina Court of Appeals.  On October 14, 2024, Defendant filed a Motion to Dismiss Plaintiff's Purported Appeal, asserting that Plaintiff failed to file a brief or written grounds supporting her appeal of the July 30, 2024, Order.  To date, Plaintiff has not filed a response to Defendant's Motion.  On October 21, 2024, Chair Philip A. Baddour, III, held Defendant's Motion in abeyance until consideration by the panel of the Full Commission assigned to review this matter. The Full Commission reviewed this matter administratively without oral argument on December 3, 2024, pursuant to 11 NCAC 23A .0701 of the Workers' Compensation Rules of the North Carolina Industrial Commission. 
A P P E A R A N C E S
Plaintiff:	Mary K. Tisdale, Pro se.  
	Defendant:	Hedrick Gardner Kincheloe & Garofalo, LLP, Charlotte, North Carolina; Neil P. Andrews and Robert Creech, Counsel of Record.

* * * * * * * * * * *
Having reviewed the prior Order, the parties' briefs, and the contents of the Industrial Commission file, the Full Commission enters the following Order pursuant to N.C. Gen. Stat. § 97-85.
* * * * * * * * * *
On April 10, 2024, the Full Commission filed an Opinion and Award in this matter denying Plaintiff's claim for benefits under the Workers' Compensation Act.  Plaintiff filed a notice of appeal of the April 10, 2024, Full Commission Opinion and Award to the North Carolina Court of Appeals on April 17, 2024.  
Plaintiff's appeal was acknowledged by the Clerk of the Industrial Commission in a letter dated April 22, 2024.  Plaintiff's Petition to Appeal as an Indigent Person was approved by Commissioner Gillen on April 18, 2024.
Subsequent to the filing of her notice of appeal, and pursuant to Rules 18(d)(2) and 27(b) of the North Carolina Rules of Appellate Procedure, respectively, Plaintiff was allowed 45 days after giving notice of appeal, plus an additional three days, in which to serve a proposed record on appeal upon Defendant.  N.C. R. App. P. 18(d)(2) (2023), N.C. R. App. P. 27(b) (2023).  As such, Plaintiff had up to and including June 4, 2024, to serve a proposed record on appeal.  Id. 
On July 29, 2024, Defendant filed Defendant's Motion to Dismiss Plaintiff's Appeal to the Court of Appeals asserting that Plaintiff, as appellant, failed to take timely action required to present the appeal for decision by failing to serve Defendant with a proposed record on appeal in compliance with Rule 18(d)(2).  Defendant further asserted that on May 20, 2024, Defendant sent Plaintiff an email stating that Defendant did not object to Plaintiff requesting from the Commission a 30 day extension of time to serve her proposed record on appeal on Defendant, but Defendant did not receive a motion to extend time to file Plaintiff's proposed record on appeal or Plaintiff's proposed record on appeal.  Defendant further asserted that as of the date of its Motion, Plaintiff had not docketed the record on appeal with the North Carolina Court of Appeals.  In a properly executed Affidavit accompanying Defendant's Motion, counsel for Defendant averred that the assertions in the Motion were correct and affirmed that "Counsel for Defendant has not received a copy of a Proposed Record on Appeal as of July 29, 2024."  
On July 30, 2024, Commissioner Gillen granted Defendant's Motion and dismissed Plaintiff's appeal to the North Carolina Court of Appeals for failure to serve Defendant with the proposed record on appeal.
On August 13, 2024, Plaintiff timely filed a notice of appeal from the July 30, 2024, Order.  Plaintiff's appeal was acknowledged by the Clerk of the Industrial Commission in a letter dated August 20, 2024.  Plaintiff filed a Form 44 Application for Review on August 21, 2024.  On September 6, 2024, Plaintiff filed a brief to the Full Commission listing contact information for various medical providers and a statement requesting her claim be found compensable.  In her brief, Plaintiff does not assert that she requested an extension of time to serve the proposed record on appeal on Defendant, and Commission records do not indicate that any such request was ever made.  
On October 14, 2024, Defendant filed Defendant-Appellee's Brief to the Full Commission.  On the same day, Defendant filed a Motion to Dismiss Plaintiff's Purported Appeal, asserting that in Plaintiff's September 6, 2024, filing, Plaintiff attempted to relitigate issues previously decided by the Commission and failed to address by stating any facts or citing any law to support modifying the July 30, 2024, Order, which constituted an abandonment of her appeal.  To date, Plaintiff has not filed a response to Defendant's Motion.  On October 21, 2024, Chair Philip A. Baddour, III, held Defendant's Motion in abeyance until consideration by the panel of the Full Commission assigned to review this matter.
* * * * * * * * * * *
The North Carolina Rules of Appellate Procedure are mandatory and failure to follow them subjects an appeal to dismissal.  See State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007); Viar v. N.C. Dep't. of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005).  An appeal may be dismissed upon motion of a party if the appellant fails to take any action required to present the appeal for decision within the times allowed by the North Carolina Rules of Appellate Procedure.  N.C. R. App. P. 25(a) (2023).
Under Rule 18(c) of the North Carolina Rules of Appellate Procedure, a record on appeal "shall contain" an index, a statement regarding the procedural posture of the case, a document showing the Industrial Commission had jurisdiction over the claim, all relevant pleadings, the appealed order, and additional documentation from litigation of the claim.  N.C. R. App. P. 18(c) (2023).  Rule 18(d) of the North Carolina Rules of Appellate Procedure provides that if a record on appeal is not settled by agreement, the appellant shall serve a proposed record on appeal on all opposing parties within 45 days from filing the notice of appeal and must include the material set forth in Rule 18(c).  N.C. R. App. P. 18(d)(2) (2023).  Three additional days are added to that prescribed time period if the notice of appeal is served by mail or electronic mail.  N.C. R. App. P. 27(b) (2023).    
Plaintiff had 45 days, plus an additional three days, from the filing of her notice of appeal on April 17, 2024, to serve a proposed record on appeal upon Defendant; thus, the deadline for Plaintiff to serve the proposed record on appeal upon Defendant was June 4, 2024.  Id.; N.C. R. App. P. 18(d); N.C. R. App. P. 27(b).  Defendant has averred that Defendant never received from Plaintiff a motion to extend time to file Plaintiff's proposed record on appeal or Plaintiff's proposed record on appeal.   In her brief, Plaintiff does not assert that she requested an extension of time to serve the proposed record on appeal on Defendant, and Commission records do not indicate that any such request was ever made.  Thus, Plaintiff's deadline to serve a proposed record on appeal upon Defendant was June 4, 2024.  N.C. R. App. P. 18(d); N.C. R. App. P. 27(b).
To date, Plaintiff has not served a proposed record on appeal upon Defendant or filed a record on appeal with the North Carolina Court of Appeals.  Thus, the Full Commission finds and concludes that Plaintiff failed to comply with the deadlines set forth in Rule 18(d) of the North Carolina Rules of Appellate Procedure as she failed to serve a copy of the proposed record on appeal in her claims upon Defendant within the allowed timeframe.  As such, pursuant to Rule 25(a) of the North Carolina Rules of Appellate Procedure, Plaintiff's appeal was subject to dismissal.
* * * * * * * * * * *
	Based upon the foregoing, Commissioner Gillen's July 30, 2024, Order is hereby AFFIRMED, and Plaintiff's appeal of the April 10, 2024, Opinion and Award of the Full Commission to the North Carolina Court of Appeals is hereby DISMISSED.  No costs are taxed as Plaintiff was permitted to proceed in forma pauperis.  
	As the Full Commission addressed the merits of Plaintiff's appeal, the Commission declines to address Defendant's Motion to Dismiss Plaintiff's Purported Appeal.
	s/Phillips, C.
	s/Baddour, Ch., concurring.
	s/Taylor, C., concurring.

I.C. NO. 22-004758		Page 2