850878.doc

I.C. NO. 850878, RITA JO HARRIS, Employee, Plaintiff v. KRISTIN HAAG AND PERSONALIZE THIS INC., Employer, NONINSURED, Defendant.  OPINION AND AWARD by ROBERT WAYNE RIDEOUT, JR., Deputy Commissioner, N.C. Industrial Commission.  Filed 18 June 2009.



The undersigned heard this case in Raleigh, North Carolina, on June 8, 2007.  Following the receipt of the briefs of the parties, this matter is ready for decision.
A P P E A R A N C E S
	Plaintiff:	Smith, James, Rowlett & Cohen, Greensboro, North Carolina, Margaret Rowlett, Counsel of Record

	Defendants:	Wilson & Coffey, Winston-Salem, North Carolina, Stuart Russell, Counsel of Record

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ISSUES
The issues in contention are:
Has the defendant fail to comply with a valid Order of the Industrial Commission, which is still in effect, and which defendants have present ability to comply with and whose purpose could still be served?
What sanctions, if any, would be appropriate?
Is Defendant's failure to obey the Order of February 19, 2009, stubborn, unfounded litigiousness?
Is Defendant liable for sanctions for their failure to obey the Order of February 19, 2009?
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FINDINGS OF FACT
On February 19, 2009, the Commission issued an Order approving a Compromise Settlement Agreement.
Defendant satisfied the indemnity payments and attorney's fee, but failed to make any payments to the medical care providers, as instructed in the February 19, 2009 Order.
The undersigned finds defendant failed to comply with a valid Order of the Industrial Commission.
The undersigned finds the Order in question still in effect.
The undersigned finds the purpose of the Order can still be served with compliance.
At the hearing, defendant presented numerous documents, indicating she has limited to no income, substantial debts and lacks the present ability to pay the medical bills in this case.
The undersigned finds the defendant does not have the present ability to comply with the Order.
Although not in civil contempt, the defense of this claim constitutes stubborn, unfounded litigiousness.
Plaintiff's counsel submitted an itemized fee request for $1167.25.  The undersigned finds this amount reasonable.
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	The foregoing Stipulations and Findings of Fact engender the following additional:
CONCLUSIONS OF LAW
In order to prove civil contempt, the moving party must show the opposing party failed to comply with a valid Order, that the Order in question still in effect, the opposing party has the present ability to comply with the Order, and the purpose of the Order still be served with compliance.  N.C. Gen. Stat. §5A-21.
The evidences failed to prove beyond a preponderance that defendant has the present ability to comply and is, therefore, not in civil contempt pursuant to N.C. Gen. Stat. §97-80(g) and N.C. Gen. Stat. §5A-21 through 5A-25.
Defendant's failure to obey the Order of February 19, 2009, necessitating this contempt hearing, constitutes stubborn, unfounded litigiousness.  N.C. Gen. Stat. §97-88.1
Defendants are liable for sanctions for their failure to obey the Order of February 19, 2009.  N.C.I.C. Rule 703.
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	Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned enters the following:
A W A R D
Defendant is direct to pay Plaintiff's counsel $1,167.25.
Plaintiff's counsel shall send a copy of this Opinion & Award to Plaintiff's medical providers who have not been paid for services provided to Plaintiff related to her compensable injury. The healthcare providers with outstanding bills in this matter shall not seek to obtain collection of these bills from Plaintiff.  The healthcare providers shall direct their collection efforts at Defendant-Employer Kristin Haag, individually and d/b/a Personalize This, Inc.  Failure to comply with this Order by the healthcare providers and their collection agencies will result in the initiation of contempt proceedings against persons in violation of this Order.
In the hope that defendant will now make efforts to discharge this debt, and to prevent causing further hardship to defendant, all costs and sanctions are REMITTED.
	It is further ORDERED that this case be REMOVED from the undersigned's hearing docket.



			S/			
ROBERT WAYNE RIDEOUT, JR.
DEPUTY COMMISSIONER

RR:mc

I.C. No. 850878	Page 4

Code:  130