Defendant North Carolina Guaranty Association ( the Association ) appeals the amended opinion and award of the North Carolina Industrial Commission ( the Commission ) awarding plaintiffs a ten percent increase in worker s compensation. NELSON MULLINS RILEY & SCARBOROUGH, L.L.P., by Christopher J. Randolph Ward, for defendant-appellee Branch Erections Company, Inc. Appeal by defendants from opinion and award entered 28 April 2003 by the North Carolina Industrial Commission. Guaranty Association was liable after the employer s insurer became insolvent without considering the provisions of the insurance policy between the employer and its insolvent insurer because (1) the Guaranty Act and the cases interpreting it require that the Commission determine whether an employee s claim is covered under an insurance policy before holding defendant Guaranty Association liable for an insolvent insurance company s nonpayment of a claim (2) the Commission abused its discretion by declining to receive the policy as evidence and by failing to take into account the terms of the policy while reconsidering the case when the Association s recent entry into the case, coupled with its argument that it was statutorily prevented from the obligation claimed by plaintiffs, is good grounds for the Commission to reconsider the evidence and receive further evidence in the case and (3) the Commission s determination was not supported by sufficient findings of fact when it concluded the additional compensation was part of a covered claim. § 97-12 due to the employer s willful violations of OSHA safety standards was a covered claim for which the N.C. COA03-1032 Filed: 7 September 2004 Workers Compensation- amended opinion-ten percent increase-insolvent insurer-guaranty association The Industrial Commission erred in its amended opinion and award by determining that a ten percent increase in compensation assessed against an employer under N.C.G.S.

GUARANTY ASSOCIATION (NOW ADDED), Statutory Insurer, Defendants NO. BRANCH ERECTIONS COMPANY, INC., Employer, THE GOFF GROUP, Carrier (NOW DISMISSED), N.C.

MARY NICOLE BOONE VOGLER, Widow, MARILYN SUE ANN CLYMER, Guardian Ad Litem for KRISTIN DAKOTA VOGLER, Minor Child, and MARK BOONE, Guardian Ad Litem for MEGAN NICOLE BOONE, Minor Stepchild, of BILLY CHARLES VOGLER, Deceased Employee, Plaintiffs, v.

Lakshya 2004