Forget To Identify an Issue? No Problem!

By Tara Muller

Question: When a brief writer is drafting Contentions or a Full Commission brief and identifies a compelling argument about an issue which was never raised, what can she do?

Answer: Argue it anyway!

Thanks to the North Carolina Court of Appeals in Haulcy v. Goodyear Tire & Rubber (June 5, 2018), parties who fail to raise an issue in the Pre-Trial Agreement or even in the Form 44 to the Full Commission enjoy some well-deserved leniency, if the Industrial Commission deems the issue to be relevant.

The Court of Appeals ruled that the failure to raise an issue at either level is not fatal, because the Commission has jurisdiction to rule on any matter in controversy, even those the parties did not identify. In Haulcy, the overlooked issue was relatively narrow: a credit against TTD for STD benefits received through an employer-funded plan. However, those of us who regularly draft briefs for litigators foresee some wide-ranging implications from Haulcy. Given the tremendous volume of lay and expert evidence presented in an average case, workers’ compensation litigators regularly multi-task to the extreme, such that it becomes easy – if not routine – to overlook a secondary issue or two. Haulcy provides strong appellate precedent for the proposition that the Industrial Commission has jurisdiction to hear all relevant issues, even those not timely raised under the rules. Also, it reminds litigators, who occasionally fall into the trap of becoming too laser-focused on the primary cause of action or defense, of the value of exposing their case to the fresh pair of eyes of a brief writer. Haulcy does suggest that an ambitious Deputy Commissioner or Full Commission panel can identify the issue sua sponte even if everyone else overlooks an issue, but it is doubtful that many litigators will opt to take that chance. In any event, we are now reassured that the Court of Appeals recognizes litigators as mere mortals, occasionally imperfect but still deserving of a fair shake for their clients.

Tara Muller can be reached at She is a legal writer, mediator, and former workers’ compensation litigator.