04 NCAC 10A .0609          MOTIONS PRACTICE IN CONTESTED CASES

(a)  Motions brought before the Commission shall be addressed as follows:

(1) All motions in cases which are currently calendared for hearing before the Full Commission or Deputy Commissioner shall be sent directly to the Chair of the Full Commission panel or Deputy Commissioner before whom the case is pending.

(2) Motions filed before a case is calendared before a Deputy Commissioner, or once a case has been continued, or removed from a Deputy Commissioner calendar, or after the filing of an Opinion and Award, shall be directed to the Executive Secretary of the Industrial Commission.  Motions to reconsider or amend an Opinion and Award, made prior to giving notice of appeal to the Full Commission, shall be directed to the Deputy Commissioner who authored the Opinion and Award.

(3)           Motions filed after notice of appeal to the Full Commission has been given but prior to the calendaring of the case shall be directed to the Chair of the Industrial Commission.

(4)           If a case has been continued from the Full Commission hearing docket, motions shall be directed to the Chair of the panel of Commissioners who ordered the continuance.

(5)           Motions filed after the filing of an Opinion and Award by the Full Commission but prior to giving notice of appeal to the Court of Appeals shall be directed to the Commissioner who authored the Opinion and Award.

(b)  A motion shall state with particularity the grounds on which it is based, the relief sought, and a brief statement of the opposing party’s position, if known.  Service shall be made on all opposing attorneys of record, or on all opposing parties, if not represented.

(c)  Motions to continue or remove a case from the hearing calendar on which the case is set must be made well in advance of the scheduled hearing and may be made in written or oral form.  In all cases the moving party must provide just cause for the motion and state that the other parties have been advised of the motion and relate the position, if known, of the other parties regarding the motion.  Oral motions must be followed with a written confirmation from the moving party.

(d)  The responding party to a motion shall have 10 days after a motion is served during which to file and serve copies of response in opposition to the motion.  The Industrial Commission may shorten or extend the time for responding to any motion.

(e)  Notwithstanding the provisions of Paragraph 4 of this Rule, a motion may be acted upon at any time by the Commission, despite the absence of notice to all parties, and without awaiting a response thereto.  A party who has not received actual notice of such a motion or who has not filed a response at the time such action is taken and who is adversely affected by the action may request that it be reconsidered, vacated, or modified.  Motions will be determined without oral argument, unless the Industrial Commission orders otherwise.

(f)  In all cases where correspondence relative to a case before the Industrial Commission is sent to the Industrial Commission, copies of such correspondence shall be contemporaneously sent by the same method of transmission, to the opposing party or, if represented, to opposing counsel.  Written communications, whether addressed directly to the Commission or copied to the Commission, may not be used as an opportunity to introduce new evidence or to argue the merits of the case, with the exception of the following instances:

(1)           Written communications, such as a proposed order or legal memorandum, prepared pursuant to the Commission’s instructions;

(2)           Written communications relative to emergencies, changed circumstances, or scheduling matters that may affect the procedural status of a case such as a request for a continuance due to the health of a litigant or an attorney;

(3)           Written communications sent to the tribunal with the consent of the opposing lawyer or opposing party if unrepresented; and

(4)           Any other communication permitted by law or the rules or procedures of the Commission.

At no time may written communications, whether addressed directly to the Commission or copied to the Commission, be used as an opportunity to cast the opposing party or counsel in a bad light.

(g)  All motions made before the Industrial Commission must include a proposed Order to be considered by the Industrial Commission.

(h)  Except as otherwise expressly provided by statute, rule, or by order of the Commission, in computing any period of time prescribed or allowed by the Commission’s Rules, by order of the Commission, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or a legal holiday.  When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation.  Whenever a party has the right to do some act or take some proceedings within a prescribed period after the service of any document, three days shall be added to the prescribed period.

History Note:        Authority G.S. 97-80(a);

Eff. January 1, 1990;

Amended Eff. June 1, 2000; March 15, 1995.