All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA07-731
Filed:
16 September 2008
ROBERT H. ALPHIN,
Employee,
Plaintiff,
v.
I.C.
File No. 021806
TART L.P. GAS COMPANY,
Employer,
AETNA LIFE & CASUALTY COMPANY,
Carrier,
Defendants.
Appeal
by plaintiff from opinion and award entered 22 March 2007 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 12 December 2007.
Brent Adams &
Associates, by Robin K. Martinek, for plaintiff-appellant.
Hedrick Gardner
Kincheloe & Garofalo, L.L.P., by Jeffrey A. Doyle and Susan J. Vanderweert,
for defendants-appellees.
GEER,
Judge.
Plaintiff
Robert H. Alphin appeals from an opinion and award of the North Carolina
Industrial Commission denying his motion to reinstate benefits and determining
that he failed to prove that he has been totally disabled or had diminished
wage-earning capacity. Based upon our
review of controlling precedents regarding the presumption of continuing
disability arising from Form 21 and Form 26 agreements, we hold that the
Commission erred in concluding that the presumption in this case had “ended.” Instead, the burden of rebutting the
presumption of continuing disability remained on defendants, and the Commission
was required to determine whether defendants had met their burden before
deciding that plaintiff was not entitled to indemnity compensation. With respect to plaintiff’s motion to
reinstate benefits, our standard of review requires that we uphold the
Commission’s determination that plaintiff did not show that his unjustified
refusal to cooperate had ceased.
Accordingly, we affirm in part and reverse and remand in part.
Facts
Plaintiff
suffered a compensable injury on 8 March 1990 resulting in low back pain
radiating into his right leg. The
parties executed a Form 21 pursuant to which defendants agreed to pay temporary
total disability compensation to plaintiff for “necessary weeks”; the agreement
was approved by the Commission on 2 April 1990.
Subsequently, plaintiff returned to work on at least two occasions. The record indicates, however, that on 28 June
1990, the parties entered into a Form 26 agreement to reinstate temporary total
disability compensation for “necessary weeks.”
On 13 July 1990, defendants filed, and the Commission approved, a Form
24 application to terminate compensation.
In
October 1990, defendants filed another Form 26, stating that plaintiff had
reached maximum medical improvement and agreeing to pay plaintiff compensation
for a 10% permanent partial impairment to his back. The Commission approved the agreement on 1
November 1990, and defendants filed a Form 28B on 11 December 1990, stating
that the case was being closed by the defendant carrier.
The
parties executed a third Form 26 agreeing that plaintiff had again became
totally disabled as of 23 July 1991 and agreeing to reinstate temporary total
disability for “necessary weeks.” On 16
December 1991, the parties entered into a fourth Form 26 agreeing that
plaintiff had reached maximum medical improvement, that he had a 15% permanent
partial impairment rating, and that defendants would pay plaintiff for the 5%
increase in his rating. The Commission
approved the fourth Form 26 agreement on 7 January 1992, and the defendant
carrier filed another Form 28B closing the case.
A
fifth Form 26 agreement was executed with the parties agreeing to payment of
continuing temporary total disability compensation beginning 4 March 1993 and
continuing “for necessary weeks.” The
Commission approved this agreement on 11 May 1993.
In the
opinion and award on appeal, the Commission found, that as of 11 November 1993,
plaintiff was capable of earning wages in sedentary work with no bending and
twisting, although if plaintiff was sitting, he would need a couple of minutes
every half hour to stand. Plaintiff had
a 25% permanent partial impairment rating to the back. These findings were based on the evaluation
of Kenneth J. Rich, M.D. reflected in a note dictated on 11 November 1993. Defendants paid plaintiff the increase of 10%
in his permanent partial impairment rating.
On 10
May 1994, the Commission ordered plaintiff to cooperate with vocational
rehabilitation efforts. On 25 May 1994
and again on 30 November 1994, the Commission denied defendants’ Form 24
applications to stop payment of compensation.
Defendants filed another Form 24 on 17 May 1995, alleging that plaintiff
had failed to comply with vocational rehabilitation. The Executive Secretary’s Office approved
this Form 24 on 5 July 1995 effective 5 May 1995.
Plaintiff
filed a Form 33 request for a hearing on 17 April 1996, alleging that
defendants refused to pay permanent and total disability compensation. Plaintiff also filed a motion for
reinstatement of benefits on 24 June 1996 claiming that he had fully complied
with defendants’ rehabilitation efforts, but adding that if the Commission
found he had failed to comply, he was at that point ready, willing, and able to
fully and completely cooperate.
Following
a hearing before the deputy commissioner on 19 December 1996, the deputy
determined that plaintiff had participated in vocational rehabilitation in a
reasonable fashion and that temporary total disability payments should be
reinstated. The deputy, however, also found that plaintiff’s entitlement to
temporary total disability benefits ended when he reached maximum medical
improvement on 7 November 1996, and after that date, plaintiff was entitled
only to his rating.
Both
parties appealed to the Full Commission.
In an opinion and award filed 17 March 1999, the Commission reversed the
deputy commissioner’s decision concluding that plaintiff had failed to cooperate
with vocational rehabilitation after being ordered to do so; defendants were
entitled to terminate plaintiff’s compensation for failure to cooperate; and
plaintiff reached the end of his vocational rehabilitation period on 5 May 1995
when he refused to cooperate. In
addition to addressing the failure to cooperate, the Commission found that “[a]s
of November 11, 1993, plaintiff was capable of earning wages in sedentary work
with no bending and twisting and with sitting and standing and if sitting, being
provided a couple of minutes every half hour to stand.”
Plaintiff
appealed to this Court, and on 16 May 2000, this Court issued an opinion
affirming in part, reversing in part, and remanding to the Full
Commission. Alphin v. Tart L.P. Gas
Co., 138 N.C. App. 167, 535 S.E.2d 117 (May 16, 2000) (unpublished). The Court affirmed the Commission’s
determination that plaintiff had not complied with vocational rehabilitation,
but held that the Commission was only authorized to suspend — and not terminate
— benefits until plaintiff’s unjustified refusal to cooperate ceased. The Court directed that the Commission’s
opinion and award on remand specify that plaintiff might be entitled to weekly
compensation benefits upon a proper showing that plaintiff was willing to
cooperate with defendants’ rehabilitative efforts.
On 8
December 2000, the Full Commission entered an order denying plaintiff’s motion
for resumption of benefits on the grounds that “plaintiff has not made a proper
showing nor has he affirmatively established that he is willing to cooperate
with defendants’ rehabilitative efforts.”
On the same date, based on this Court’s decision, the Commission amended
its opinion and award to provide that plaintiff’s benefits were only suspended.
The Commission, however, repeated its earlier finding that plaintiff was
capable of earning wages in sedentary work with restrictions and awarded
plaintiff compensation for his 25% permanent partial rating to his back subject
to an offset for compensation already paid by defendants. Plaintiff filed notice of appeal to this
Court on 3 January 2001, but never perfected the appeal.
On 5
April 2001, plaintiff filed a motion to resume payment of temporary total
workers’ compensation benefits, alleging that defendants refused to provide
vocational rehabilitation despite plaintiff’s expressed willingness to
cooperate. On 20 April 2001, the
Executive Secretary entered an order, stating: “Due to the fact that the issues
contained in the Opinion and Award filed on March 17, 1999 are currently on
appeal to the North Carolina Court of Appeals, IT IS HEREBY ORDERED that the
plaintiff’s Motion is denied in the administrative forum.”
On 13
June 2001, plaintiff filed a Form 33 request for hearing, stating: “I have not
received any temporary total benefits since May 5, 1995 and have not returned
to gainful employment.” The deputy
commissioner issued an opinion and award finding that “[p]laintiff’s verbal
assurances of cooperation have not been accepted as credible, not only because
of his previous problems with the rehabilitation providers but also because of
his appearance and demeanor at the hearing.”
Plaintiff
appealed the deputy commissioner’s decision to the Full Commission. On 9 May 2003, the Full Commission entered an
order finding that “[t]he record indicates that the most recent medical
evaluation of plaintiff’s condition occurred on 11 November 1993, when Dr. Rich
released plaintiff to return to work with restrictions and rated him with a 25%
permanent partial disability to his back.
The Full Commission finds as a fact that an updated independent medical
evaluation is necessary to determine the extent of plaintiff’s continuing
disability, if any, and whether he would benefit from a resumption of
vocational rehabilitation.” The Commission
ordered plaintiff to submit to an independent medical examination and held the
record in the case open until the Commission received the results of the
evaluation. The issue of reinstatement
of plaintiff’s benefits was held in abeyance pending receipt of the results of
the evaluation and the closing of the record.
Dr. Rich performed the independent medical examination on plaintiff, and
the Commission received his deposition testimony in September 2004.
On 22
March 2007, the Full Commission filed an opinion and award affirming the
holding, but entirely modifying, the opinion and award of the deputy
commissioner. The Commission concluded
that plaintiff had failed to make a proper showing that his unjustified refusal
to cooperate with vocational rehabilitation had ceased and that plaintiff was
not, therefore, entitled to have his compensation reinstated. It further determined that plaintiff’s
presumption of total disability had “ended,” that plaintiff was required to
prove continuing disability, and that plaintiff had not proven that he was
totally disabled or had diminished wage-earning capacity after 5 May 1995. The Commission, therefore, denied plaintiff’s
claim for additional indemnity compensation.
Plaintiff timely appealed the opinion and award to this Court.
Discussion
Our
review of a decision of the Industrial Commission is limited to a determination
“whether there is any competent evidence to support the findings of fact, and
whether the findings of fact justify the conclusions of law.” Cross v. Blue Cross/Blue Shield, 104
N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). The findings of the Commission are conclusive
on appeal when there is competent evidence to support them, even if there is
evidence to the contrary. Hardin v.
Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc.
review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). “‘The Commission is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.’“ Adams v. AVX Corp., 349 N.C. 676, 680,
509 S.E.2d 411, 413 (1998) (quoting Anderson v. Lincoln Constr. Co., 265
N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)).
This Court, however, reviews the Commission’s conclusions of law de
novo. Deseth v. LensCrafters, Inc.,
160 N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003).
I
As an
initial matter, plaintiff contends that the issue whether he was totally or
partially disabled was not properly before the Commission for decision. According to plaintiff, the Commission’s 9
May 2003 order requiring plaintiff to submit to an independent medical
examination was improper because the Commission did not have the authority to
review his disability status pursuant to N.C. Gen. Stat. §97-83 (2007).
N.C.
Gen. Stat. §97-83 provides that “upon the arising of a dispute under this
Article, either party may make application to the Commission for a hearing in
regard to the matters at issue, and for a ruling thereon.” Plaintiff points to the fact that defendants
never applied to the Commission for a hearing on the issue of plaintiff’s
ongoing disability, but rather solely filed Form 24 applications seeking to
terminate compensation for failure to cooperate with vocational rehabilitation
efforts. Plaintiff further notes that
this Court’s prior decision in this case addressed only whether the Commission
could terminate, as opposed to suspend, benefits under N.C. Gen. Stat. §97-25
(2007) and, therefore, did not mandate that plaintiff prove his continuing
disability.
It is
well established that when a party appeals to the Full Commission, it is the “duty
and responsibility of the full Commission to decide all of the matters in
controversy between the parties.” Joyner
v. Rocky
In
plaintiff’s 1996 motion to reinstate benefits, plaintiff asserted as one of his
grounds that he “continues to be totally and permanently impaired and is unable
to work in any capacity whatsoever” and, therefore, that he “is entitled to
continue to receive benefits for his total disability pursuant to N.C.G.S. §97-29.” In his Form 44 application for review of the
deputy commissioner’s decision denying reinstatement, plaintiff asserted that
the deputy commissioner erred “on the grounds that the defendant did not carry
its burden of proving that the claimant was capable of earning the same or
greater wages that he earned at the time he was injured . . . .” Subsequently, after the Full Commission’s
opinion and award following remand by this Court, plaintiff filed a motion with
the Executive Secretary for resumption of payment of benefits in support of
which he asserted that he “has been totally and permanently impaired and
disabled since his original on the job injury” and that he “has not been able
to work in any capacity or earn any income whatsoever since March 8, 1990.”
Plaintiff’s
Form 33 request for a hearing, dated 13 June 2001, stated that the parties had
been unable to agree because plaintiff had “not received any temporary total
benefits since May 5, 1995 and [had] not returned to gainful employ[.]” Defendants’ response to the request asserted
that the parties had been unable to agree because, in part, “[p]laintiff has
not made a proper showing that he is entitled to any further [temporary total
disability] compensation.” In the pre-trial
agreement, defendants contended that the issues to be heard included whether
plaintiff had met his burden of proving that he is disabled as a result of his
injury. Following the hearing and the
deputy commissioner’s decision, plaintiff’s Form 44 application for review by
the Full Commission assigned as error:
7. Paragraph Number 1 and 2 of the Award
in that it finds that the plaintiff’s claim for additional compensation is
denied and orders each party to pay its own cost on the grounds that such “Award”
ignores the plaintiff’s status as a disabled and impaired employee, unable to
work pursuant to the terms of the order of the North Carolina Industrial
Commission issued on its Form 21 . . . .
Upon review, the
Commission ordered an independent medical evaluation not only to determine “the
extent of plaintiff’s continuing disability, if any,” but also to assess
whether plaintiff “would benefit from a resumption of vocational
rehabilitation.”
Thus,
the issue whether plaintiff has an ongoing disability from his admittedly
compensable workplace injury has consistently been before the Commission. Nothing in this Court’s first decision
precluded the Commission from addressing the issue. Further, plaintiff’s own Form 44 application
for review raised the issue, as well as the relevance of the parties’ Form 21
to that issue. As this Court observed in
Joyner, “[i]nasmuch as the Industrial Commission decides claims without
formal pleadings, it is the duty of the Commission to consider every aspect of
plaintiff’s claim whether before a hearing officer or on appeal to the full
Commission.”
II
Plaintiff
contends that the Industrial Commission incorrectly applied the law regarding
presumptions when it stated:
18. Plaintiff’s acceptance of the Commission’s
determination that plaintiff was capable of earning wages and the Commission’s
award of compensation for his rating under N.C. Gen. Stat. §97-31 ended his
presumption of continuing total disability.
. . .
.
36. The final decision by the Full Commission
that plaintiff had reached maximum medical improvement, was capable of
sedentary work and was entitled to payment for permanent partial disability
based on his twenty-five percent (25%) rating ended plaintiff’s presumption of
continuing total disability.
Although these
statements were each denominated a “finding of fact,” they actually present
conclusions of law that we review de novo.
In
this case, the parties entered into an initial Form 21 and subsequent Forms 26
that gave rise to a rebuttable presumption of continuing disability. See Clark v. Wal-Mart, 360 N.C.
41, 44, 619 S.E.2d 491, 493 (2005) (holding that presumption of disability in
favor of employee arises in “limited circumstances,” including “(1) when there
has been an executed Form 21 . . .; (2) when there has been an executed Form 26
. . .; or (3) when there has been a prior disability award from the Industrial
Commission”). As this Court has
explained, “when a Form 26 supplemental agreement is executed, the nature of
the disability is determined according to what is specified in the Form 26
supplemental agreement.” Foster v.
U.S. Airways, Inc., 149 N.C. App. 913, 918, 563 S.E.2d 235, 239, disc.
review denied, 356 N.C. 299, 570 S.E.2d 505 (2002).
The
Supreme Court instructed in Saunders v. Edenton Ob/Gyn Ctr., 352 N.C.
136, 140, 530 S.E.2d 62, 65 (2000), that we must look to the terms of the last
agreement of the parties.[Note 1] Therefore, the terms of the final Form 26, “entered
into by the parties and approved by the Commission, are the final terms which
became binding between the parties.”
Thus,
by virtue of the final Form 26, plaintiff had a presumption of continuing total
disability. The Commission, however,
concluded that this presumption “ended” with the Commission’s “final decision”
that plaintiff had reached maximum medical improvement, that he was capable of
sedentary work, and that he was entitled to compensation for his rating. As support for this conclusion, the
Commission cited only Dancy v. Abbott Labs., 139 N.C. App. 553, 534
S.E.2d 601 (2000), aff’d per curiam, 353 N.C. 446, 545 S.E.2d 211
(2001). Nothing in Dancy,
however, appears to justify the conclusion reached by the Commission.
In Dancy,
the Form 21 agreement providing for total disability benefits for an indefinite
period was followed by a Form 26 agreement specifying that the employee would
be paid temporary partial disability for two weeks.
The
only part of Dancy that can be viewed as addressing when the presumption
has “ended” — the basis for the Commission’s conclusion in this case — is the
opinion’s general discussion of the presumption. This Court observed that “[w]e have held that
‘[u]nless the presumption [in favor of disability] is waived by the employee,
no change in disability compensation may occur absent the opportunity for a
hearing. . . . [O]ne such way a waiver might occur is when an employee and
employer settle their compensation dispute in a manner consistent with N.C.
Gen. Stat. §97-17 [(1999)], and that settlement is subsequently approved by the
Commission.’“
Thus,
under Dancy, the Form 26, as approved by the Commission, was binding on
the parties as if it were an award affirmed on appeal. The Commission and defendants have identified
no waiver by plaintiff of the presumption of disability arising from the Form
26. In that event, Kisiah
specifies that “absent a settlement with the employee, an award of temporary
total disability cannot be undone without resort to a lawful determination by
the Commission that the employee’s disability no longer exists — which will
require the application of law to fact and, therefore, a hearing.” Kisiah, 124 N.C. App. at 80, 476
S.E.2d at 438. At that hearing, the
employee may rely upon the presumption and “need not present evidence . . .
unless and until the employer ‘claim[ing] that the plaintiff is capable
of earning wages . . . come[s] forward with evidence to show not only that
suitable jobs are available, but also that the plaintiff is capable of
getting one, taking into account both physical and vocational limitations.’“ Id. at 81, 476 S.E.2d at 439 (quoting Kennedy
v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990)).
In
this case, the Commission made no finding that it conducted a hearing at which
defendants bore the burden set out in Kennedy, and the record contains
no finding by the Commission in any of its opinions and awards that suitable
jobs are available for plaintiff and that plaintiff is capable of getting one,
taking into account both his physical and vocational limitations. “[O]nly the Commission can ascertain whether
an employer has presented evidence rebutting a Form 21 presumption of
disability.”
The
Commission based its conclusion that the presumption had “ended” on three facts
found in prior opinions and awards: (1) plaintiff’s reaching maximum medical
improvement, (2) the Commission’s determination that plaintiff was capable of
sedentary work, and (3) the Commission’s award of permanent partial disability
based on a 25% rating and plaintiff’s acceptance of that compensation. The Commission’s conclusion cannot be
reconciled with established law on the presumption of continuing disability.
In Brown
v. S & N Commc’ns, Inc., 124 N.C. App. 320, 330, 477 S.E.2d 197, 203
(1996), this Court held unambiguously: “A finding of maximum medical
improvement is not the equivalent of a finding that the employee is able to
earn the same wage earned prior to injury and does not satisfy the defendant’s
burden [of rebutting the presumption].”
In addition, the fact that plaintiff is capable of earning wages in
sedentary work does not rebut the presumption because it relates only to
plaintiff’s physical limitations and does not establish that suitable jobs
exist and that plaintiff is capable of getting one, taking into account both
his physical limitations — the sedentary work limitation — and his vocational
limitations. See Outerbridge
v. Perdue Farms, Inc., 181 N.C. App. 50, 56, 638 S.E.2d 564, 569 (holding
that when Commission found an employee capable of sedentary work, it “determined
the existence of Plaintiff’s disability: that his work capacity since
[the specified date] is sedentary,” but it did not determine extent of
plaintiff’s disability), aff’d per curiam, 361 N.C. 583, 650 S.E.2d 594
(2007).[Note 3]
The
Commission essentially concluded that the presumption had ended because
plaintiff was released by Dr. Rich to return to work in a sedentary position
with restrictions. Yet, it has long been
the law that “[a]n employee’s release to return to work is not the equivalent
of a finding that the employee is able to earn the same wage earned prior to
the injury, nor does it automatically deprive an employee of the [Form 21/26]
presumption.” Radica v.
The
Commission’s final consideration — that it had found plaintiff to be entitled
to his rating — appears to be based on a mistaken belief that plaintiff’s
entitlement to or receipt of benefits under N.C. Gen. Stat. §97-31 (2007)
precluded the receipt of benefits under N.C. Gen. Stat. §97-29 (2007) for
temporary total disability. While an
employee cannot recover under N.C. Gen. Stat. §§97-29 and 97-31 simultaneously,
the employee has the option of choosing the most favorable recovery. Franklin v. Broyhill Furniture Indus.,
123 N.C. App. 200, 205, 472 S.E.2d 382, 385-86, cert. denied, 344 N.C.
629, 477 S.E.2d 39 (1996).
Defendants
contend that plaintiff’s acceptance of payment for his permanent partial
disability rating pursuant to N.C. Gen. Stat. §97-31 constituted plaintiff’s
election. The Commission and defendants
have overlooked Gupton v. Builders Transp., 320 N.C. 38, 40, 357 S.E.2d
674, 676 (1987), in which our Supreme Court pointed out that this Court had “overlooked
case law from [the Supreme] Court indicating that an award under N.C.G.S. §97-31
does not necessarily foreclose the award of additional benefits to which a
claimant might be entitled.” The Court
explained that the focus of N.C. Gen. Stat. §97-31 is on “the prevention of
double recovery, not exclusivity of remedy” and, therefore, “a plaintiff
entitled to select a remedy under either N.C.G.S. §97-31 or N.C.G.S. §97-30 may
receive benefits under the provisions offering the more generous benefits, less
the amount he or she has already received.”
Gupton, 320 N.C. at 43, 357 S.E.2d at 677.
Given
the holding in Gupton, plaintiff did not, in this case, elect his remedy when he accepted
compensation for his rating under N.C. Gen. Stat. §97-31. If he should ultimately succeed on his claim
under N.C. Gen. Stat. §97-29 or N.C. Gen. Stat. §97-30 (2007), then plaintiff
would be entitled to choose the more favorable remedy with defendants receiving
a credit for previous payments made to plaintiff. See Guerrero v. Brodie Contrs.,
Inc., 158 N.C. App. 678, 685, 582 S.E.2d 346, 350 (2003) (remanding to
Commission for failing to award “credit to defendants for payment of the lump
sum permanent partial disability award” after plaintiff sought ongoing
temporary total disability benefits).
In
sum, none of the Commission’s “findings” support its conclusion that plaintiff’s
presumption of continuing disability had “ended.” To the contrary, as a result of the parties’
final Form 26, plaintiff had the benefit of a continuing presumption of total
disability. He was not required to
produce any evidence of disability, and, instead, the burden rested with
defendants to prove plaintiff’s employability.
We must, therefore, reverse the Commission’s conclusion that plaintiff “has
not proven that he has been totally disabled or had diminished wage-earning
capacity after May 5, 1995.” We remand
for a determination by the Commission whether defendants have rebutted
plaintiff’s presumption of continuing total disability.[Note 4]
III
Plaintiff
also challenges the Commission’s decision that plaintiff did not make “a proper
showing that plaintiff’s unjustified refusal to cooperate [in vocational
rehabilitation] had ceased.” Plaintiff
contends that the Commission failed to make appropriate findings of fact and
conclusions of law supported by competent evidence on this issue.[Note 5]
The
Commission found that in the hearing before the deputy commissioner, plaintiff
presented the following testimony to support his claim that he has shown that
he is ready, willing, and able to cooperate with rehabilitation:
(a)
His condition has not improved since his injury and he continued to be treated
by Dr. Rick [sic] and his family physician for pain control.
(b)
Defendants had not provided him with any vocational rehabilitation services
since the Form 24 application was approved [May 5, 1995].
(c) He
had expressed his willingness to fully cooperate with any vocational
rehabilitation efforts that defendants provided. Plaintiff testified that he authorized his
attorney to write numerous letters expressing his willingness to cooperate with
vocational rehabilitation, to defendants, defendants’ attorney, the Industrial
Commission and his previous rehabilitation provider; that he had submitted a
motion for reinstatement of compensation and an affidavit both expressing his
willingness to fully cooperate with any vocational rehabilitation offered by
defendants.
(d) He
has at all times since June 26, 1996, been willing to fully cooperate with any
vocational rehabilitation offered by defendants.
(e) He
believed that he had fully cooperated with vocational rehabilitation prior to
the suspension of his compensation in 1995.
(f)
Since June 26, 1996, defendants have not offered him any medical services,
despite his requests for services.
(g) He
has not been able to work since June 26, 1996.
(h) He
talked to and filed an application for services with the North Carolina
Division of Vocational Rehabilitation Services (State Vocational Rehabilitation
Services). Plaintiff’s application was
dated February 14, 2002.
(Alteration
original.) The Commission then found
that defendants had, on cross-examination of plaintiff, established that
plaintiff was receiving social security disability, had not applied for
unemployment compensation, had not looked for work since 1 June 1996, had not
made efforts to return to school or seek vocational retraining, and did know
that he could obtain help from the Division of Vocational Rehabilitation
Services until four days prior to the hearing, at which time he immediately applied
for assistance. Plaintiff has not
assigned error to this description of his testimony.
The
Commission acknowledged that plaintiff has “repeatedly expressed his
willingness to cooperate with vocational rehabilitation offered by defendants.” It then found that “[s]imultaneously with his
assurances at the hearing that he was ready and willing to cooperate, plaintiff
also testified that he has not been able to work since June 26, 1996, and
believed he had fully cooperated with vocational rehabilitation.” The Commission then summarized plaintiff’s
prior conduct resisting vocational rehabilitation, explaining that in light of
that conduct, it could not accept plaintiff’s testimony as credible.
The
Commission reasoned: “Considering his past conduct, the Full Commission finds
that if plaintiff is of the opinion that he fully cooperated with previous
vocational rehabilitation, his current written assurances of willingness to
cooperate are probably a forecast of more of the same conduct.” The Commission, therefore, found: “Even
though a Plaintiff’s written assurance of intent to cooperate with vocational
rehabilitation may be sufficient, based on the greater weight of the evidence
the plaintiff in this case did not make a proper showing that he was willing to
cooperate with vocational rehabilitation through his written declarations of
willingness to cooperate or through his application for vocational assistance
through the State Vocational Rehabilitation Program several days prior to the
hearing before the Deputy Commissioner.”
“Before
making findings of fact, the Industrial Commission must consider all of
the evidence. The Industrial Commission
may not discount or disregard any evidence, but may choose not to believe the
evidence after considering it.” Weaver
v. Am. Nat’l Can Corp., 123 N.C. App. 507, 510, 473 S.E.2d 10, 12
(1996). “In weighing the evidence, the
Commission is the sole judge of the credibility of the witnesses and the weight
to be given to their testimony, and may reject a witness’ testimony entirely if
warranted by disbelief of that witness.”
Lineback v.
Plaintiff
argues on appeal, however, that “[b]y finding that the Plaintiff can never be
determined to be credible based on his pre-1995 hearing activities, the
Industrial Commission denies Plaintiff the second chance clearly anticipated in
the Court’s [prior] opinion and §97-25.”
We do not read the Commission’s credibility findings as being based
solely on plaintiff’s prior conduct.
Instead, the Commission pointed out that plaintiff’s showing of a
willingness to cooperate was based almost entirely on oral and written
expressions of intent unsupported by current conduct corroborating those
statements. The lone step undertaken by
plaintiff — seeking assistance from the State — occurred only four days before
the hearing in front of the deputy commissioner.
In
assessing the sincerity of plaintiff’s representations, the Commission could
appropriately consider, as it did, plaintiff’s lack of recent conduct
suggesting a willingness to cooperate and any recent conduct inconsistent with
his expressed intent. The Commission
referred to plaintiff’s pre-1995 conduct only in reference to plaintiff’s
testimony at the hearing that he believed that he had, during that time frame,
fully cooperated. The Commission could
reasonably determine that if plaintiff believed that his prior conduct
constituted full cooperation — when the Commission had since ruled otherwise —
then plaintiff’s bare representation that he is now willing to cooperate was
not entitled to much weight.
The
Commission made ample findings of fact explaining its reasoning — and the basis
for its credibility determination — in refusing to reinstate plaintiff’s
benefits terminated under N.C. Gen. Stat. §97-25. It is not the role of this Court to revisit
the Commission’s decision regarding plaintiff’s credibility. See Pitman v. Feldspar Corp.,
87 N.C. App. 208, 216, 360 S.E.2d 696, 700 (1987) (holding that the Commission
may refuse to believe certain evidence, controverted or not, and may accept or
reject the testimony of any witness), disc. review denied, 321 N.C. 474,
364 S.E.2d 924 (1988). We, therefore,
affirm the Commission’s opinion and award to the extent it concluded that
plaintiff had not made a proper showing that his unjustified refusal to
cooperate with vocational rehabilitation had ceased.
Affirmed
in part; reversed and remanded in part.
Judges
McCULLOUGH and STEELMAN concur.
NOTES
1. In Saunders, the Court concluded that the plaintiff
was entitled only to a presumption of continuing partial disability
because the final Form 26 was an agreement to pay partial disability for “necessary”
weeks. 352 N.C. at 139-40, 530 S.E.2d at
64.
2. The approval of a Form 24 request to terminate benefits is
not sufficient to “end” the presumption of disability. King v. Yeargin Const. Co., 124 N.C.
App. 396, 399-400, 476 S.E.2d 898, 901 (1996) (holding that Rule 21 presumption
applied even when Commission had approved Form 24 request to terminate benefits
because plaintiff had been released to return to work), disc. review denied,
345 N.C. 343, 483 S.E.2d 169 (1997).
3. For the same reason, defendants’ argument that plaintiff is
precluded from challenging the Full Commission’s 8 December 2000 opinion and
award — in which the Commission found plaintiff was capable of sedentary work —
under the principles of res judicata and collateral estoppel is beside
the point. We agree that since plaintiff
did not appeal the finding that he is capable of sedentary work, that ruling is
now the law of the case. See Bicket
v. McLean Secs., Inc., 138 N.C. App. 353, 359, 532 S.E.2d 183, 186 (“‘As a
general rule, when an appellate court passes on questions and remands the case
for further proceedings to the trial court, the questions therein actually
presented and necessarily involved in determining the case, and the decision on
those questions become the law of the case, both in subsequent proceedings in
the trial court and on a subsequent appeal, provided the same facts and the
same questions, which were determined in the previous appeal, are involved in
the second appeal.’“ (quoting Tennessee-Carolina Transp., Inc. v. Strick
Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974)), disc. review denied,
352 N.C. 587, 544 S.E.2d 777 (2000).
Nevertheless, it does not resolve the question whether plaintiff is no
longer entitled to a continuing presumption of total disability.
4. Because of our resolution of this issue, we do not address
plaintiff’s challenges to various findings of fact made under the Commission’s
misapprehension of the law.
5. Plaintiff asserts various contentions regarding the
Commission’s opinion and award dated 8 December 2000. While plaintiff filed a notice of appeal from
that decision, he did not perfect that appeal and, therefore, those contentions
are not properly before us.