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NO. COA04-1656
NORTH CAROLINA COURT OF APPEALS
Filed: 15 November 2005
LIONEL LEWIS,
Employee,
Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 035008
CRAVEN REGIONAL MEDICAL CENTER,
Employer
and
VIRGINIA INSURANCE RECIPROCAL,
Carrier,
Defendants
Appeal by defendants from opinion and award entered 30 July
2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 10 October 2005.
The
Law Offices of George W. Lennon, by George W. Lennon and S. Neal Camak, and
Hugh D. Cox, for plaintiff-appellee.
Sumrell,
Sugg, Carmichael, Hicks & Hart, P.A., by Jill Quattlebaum Byrum and B. Kyle
Dickerson, for defendant-appellants.
MARTIN, Chief Judge.
Craven Regional Medical Center and Virginia Insurance
Reciprocal (collectively “defendants”) appeal from an opinion and award of the
North Carolina Industrial Commission (the “Commission”) setting aside the
Commission’s previous approval of a Form 26 agreement on the grounds that the
benefits awarded thereunder were less favorable than those available under N.C.
Gen. Stat. §97-30 (2003). We affirm.
Lionel Lewis (“plaintiff”) suffered a herniated disc in his
back on 23 February 1990 during the course and scope of his employment. Defendants admitted liability and paid
plaintiff temporary total disability from 30 March 1990 through 28 January 1991
as provided by a Form 21 agreement approved by the Commission on 31 October
1991. Beginning on 28 January 1991 and
continuing for a period of forty-five weeks, plaintiff received worker’s
compensation for a fifteen percent permanent partial disability to his back as
provided for by N.C. Gen. Stat. §97-31 pursuant to a Form 26 agreement approved
by the Commission on 10 October 1991.
On 14 May 1992, plaintiff sought additional compensation on
the grounds that he suffered a substantial change of condition. Both the deputy commissioner and the
Commission rejected plaintiff’s claim of a change in condition. In so doing, the Commission found as fact
that, “[d]espite his very limited education and his work history of manual
labor, [plaintiff] has had wage earning capacity. . . . His allegation that he
has been totally disabled is not accepted as credible.” Plaintiff appealed, and this Court affirmed,
holding the Commission’s findings of fact supported its conclusion that there
had been no change in plaintiff’s condition.
Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 149,
468 S.E.2d 269, 274 (1996) (“Lewis I”).
Although plaintiff argued to this Court that the Form 26 agreement was
not fair and just, the Court declined to address the issue in the absence of a
motion by plaintiff to the Commission to have the agreement set aside. Lewis I, 122 N.C. App. at 148, 468
S.E.2d at 274.
On 6 June 1996, plaintiff requested a hearing before the
Commission to challenge the Form 26 agreement on the grounds that it was not
fair to plaintiff at the time it was entered and was, therefore, improvidently
approved by the Commission. The deputy
commissioner rejected plaintiff’s challenge to the Form 26 agreement, but the
Full Commission reversed. Contrary to
its earlier determination that plaintiff retained wage earning capacity, the
Commission found plaintiff had been incapable of earning wages since 23
February 1990 and determined that plaintiff was qualified to receive benefits
under N.C. Gen. Stat. §97-29. Upon
comparing the disability compensation provided under the Form 26 agreement with
those calculated pursuant to N.C. Gen. Stat. §97-29, the Commission concluded
the Form 26 agreement did not provide plaintiff with the most favorable
disability benefits to which he was entitled and, therefore, must be set
aside. Accord Vernon v. Steven L.
Mabe Builders, 336 N.C. 425, 432-33, 444 S.E.2d 191, 195 (1994).
Defendant appealed and this Court reversed, holding (1)
there was no competent evidence in the record to support the finding that plaintiff
was incapable of earning wages with defendant-employer or in any other
employment so as to be entitled to benefits under N.C. Gen. Stat. §97-29 and (2) the Commission was collaterally
estopped from finding plaintiff to be incapable of work on 10 October 1991 by
virtue of its previous finding that plaintiff retained wage earning capacity at
the time the Form 26 agreement was approved.
Lewis v. Craven Reg’l Med. Ctr., 134 N.C. App. 438, 442, 518
S.E.2d 1, 4 (1999), aff’d per curiam, 352 N.C. 668, 535 S.E.2d 33 (2000)
(“Lewis II”). The matter was
remanded to the Commission for a determination of whether plaintiff would
receive a greater benefit under N.C. Gen. Stat. §97-30 than he received under
the Form 26 agreement. Id. at
443, 518 S.E.2d at 4.
On remand, the Commission concluded that the compensation
provided in the agreement was less favorable to plaintiff than that available
under N.C. Gen. Stat. §97-30 and again set aside the Form 26 agreement. Building on its initial opinion and award,
which determined that plaintiff had retained wage-earning capacity since his
injury, the Commission took judicial notice of the federal minimum wage in 1991
and inferred plaintiff’s wage-earning capacity to be equal to the minimum wage. The Commission rejected the possibility that
plaintiff could earn more than the minimum wage because “there [was] no
indication in the record” justifying the elevation of his wage-earning capacity
above minimum wage. Based on the
federal minimum wage in 1991, the Commission calculated plaintiff was entitled
to the amount of $24,298.28 under N.C. Gen. Stat. §97-30, which was greater
than the $10,116.45 plaintiff received pursuant to the Form 26 agreement. The Commission made findings of fact and
conclusions of law that plaintiff was not provided the most favorable remedy,
set aside the Form 26 agreement, and awarded plaintiff $14,181.83, the
difference between the benefits he had already received under the Form 26
agreement and the benefits as calculated under N.C. Gen. Stat. §97-30. Defendants appeal.
______________________
Our standard of review in reviewing an appeal from the
Commission is well-established. We are
to determine “whether any competent evidence supports the Commission’s findings
of fact and whether the findings of fact support the Commission’s conclusions
of law.” Deese v. Champion Int’l
Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). The Commission’s findings of fact “are
conclusive on appeal when supported by competent evidence,” irrespective of
evidence supporting a contrary finding, Morrison v. Burlington Industries,
304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only
“when there is a complete lack of competent evidence to support them[.]” Young v. Hickory Bus. Furn., 353 N.C.
227, 230, 538 S.E.2d 912, 914 (2000).
The evidence is to be taken in the light most favorable to the
plaintiff, who “is entitled to the benefit of every reasonable inference to be
drawn from the evidence.” Deese,
352 N.C. at 115, 530 S.E.2d at 553. The
Commission’s conclusions of law, however, are reviewable de novo. Whitfield v. Laboratory Corp. of Am.,
158 N.C. App. 341, 348, 581 S.E.2d 778, 783 (2003).
In their first appellate contention, defendants assert the
“provisions of N.C. Gen. Stat. §97-30 do not account for the calculation of a
wage differential when an employee is not earning a post-injury wage.” Defendants argue the statutory provision
“contemplates that benefits under this section may be awarded only when the
employee has returned to some type of employment at which he or she earns wages
after the injury.” We reject
defendants’ interpretation of N.C. Gen. Stat. §97-30 for three reasons.
First, a calculation of compensation for partial incapacity
is based on the difference in a claimant’s “average weekly wages before the
injury and the average weekly wages which he is able to earn thereafter
. . . .” N.C. Gen. Stat. §97-30
(emphasis added). By focusing the
calculation on post-injury wage-earning capacity and not actual post-injury
wages, the statutory provision accords with the overall structure of the
Workers’ Compensation Act. See Hill
v. DuBose, 234 N.C. 446, 447-48, 67 S.E.2d 371, 372 (1951) (“Compensation
must be based upon loss of wage-earning power rather than the amount actually
received”); see also Evans v. Asheville Citizens Times Co., 246 N.C.
669, 100 S.E.2d 75 (1957). Second, it
was well established in the previous two appeals that plaintiff had not
returned to work. If defendants’ theory
was adopted and plaintiff could not qualify for benefits under N.C. Gen. Stat.
§97-30 due to his failure to return to work, our remand in Lewis II for
determination of whether “[p]laintiff would have been entitled to receive a
greater benefit under section 97-30 than he received under the Form 26” would
have been meaningless. Lewis II,
134 N.C. App. at 443, 518 S.E.2d at 4.
Third, we have previously held that an employee is not entitled to
benefits under N.C. Gen. Stat. §97-30 where an employer shows the employee
unjustifiably refused employment suitable to his capacity. Franklin v. Broyhill Furniture Industries,
123 N.C. App. 200, 206, 472 S.E.2d 382, 386 (1996). It stands to reason that an employee who does not return to work
due to the lack of employment suitable to his capacity procured by his employer
would not be barred from entitlement to benefits. Accordingly, we reject defendants’ contention that the Commission
cannot consider an employee’s post-injury capacity to earn wages in calculating
benefits for partial incapacity under N.C. Gen. Stat. §97-30 where the employee
does not actually return to work.
By their second argument, defendants contend there was no
competent evidence before the Commission on the date the Form 26 was approved
from which the Commission could have determined that N.C. Gen. Stat. §97-30
provided a more favorable remedy than plaintiff received pursuant to N.C. Gen.
Stat. §97-31 under the Form 26 agreement.
The Commission took judicial notice of the federal minimum wage in 1991,
as it was entitled to do, in order to calculate plaintiff’s compensation under
N.C. Gen. Stat. §97-30. Defendants
contend the Commission’s use of the federal minimum wage as plaintiff’s earning
capacity (had he been working at the time the Form 26 was entered into) was
speculative and unsupported by competent evidence. We disagree.
Following our remand in Lewis II for further
consideration of plaintiff’s entitlement to benefits under N.C. Gen. Stat.
§97-30 for partial incapacity, the Commission allowed the parties to submit new
briefs. The Commission found as fact
that defendants presented “[n]o evidence of a single job plaintiff could obtain
and keep within his restrictions” at the various hearings in this case. Indeed, a medical record notation dated 28
November 1990 indicates that defendants would not let plaintiff return to
limited duty work and that defendants subsequently discharged him by the time
he was seen by his treating physician on 21 March 1991. The Commission went further and noted that
there was “no indication in the record that plaintiff could earn more than the
federal minimum [wage].” In addition,
the Commission noted plaintiff had been rated as having a 15% permanent partial
disability to his back. This permanent
disability was considered by the Commission in conjunction with plaintiff’s
educational limitation of being functionally illiterate, plaintiff’s work
history and work restrictions, and his on-going pain. In light of these factors, all of which were proper for consideration
by the Commission in determining plaintiff’s wage-earning capacity, and the
Commission’s previous finding that plaintiff was not totally disabled, the
Commission determined plaintiff’s wage-earning capacity diminished to the
fullest extent allowed by federal law.
In so doing, the Commission performed its duty to review the record
evidence and make a determination as to plaintiff’s residual wage-earning
capacity.
Defendants argue that, viewing plaintiff’s restrictions,
plaintiff might have been capable of earning more than the minimum wage. Such an argument is little more than an
invitation to this Court to review the record evidence of plaintiff’s
restrictions and limitations and make a determination different than that which
was reached by the Commission, a task which is beyond our scope of review. We hold the Commission’s determination, that
plaintiff retained only minimal earning capacity, was supported by the relevant
medical and record evidence and accords with this Court’s mandate in Lewis
II. This argument is overruled.
Defendants additionally argue the Commission erroneously
failed to give them a credit for temporary total disability benefits paid past
the date plaintiff reached maximum medical improvement. However, defendants failed to assign error
to the Commission’s opinion and award on the basis that a credit was
erroneously overlooked by the Commission; accordingly, this argument has not
been properly preserved for appellate review and is overruled. N.C. R. App. P. 10(a) (“Except as otherwise
provided herein, the scope of review on appeal is confined to a consideration
of those assignments of error set out in the record on appeal in accordance
with this Rule 10”). None of the
assignments of error direct the attention of this Court to an alleged error
regarding the credit, nor are there clear or specific record or transcript
references included in the brief as required by N.C. R. App. P. 10(c)(1).
We have carefully considered defendants’ remaining arguments
and find them to be without merit. The
opinion and award of the Commission is affirmed.
Affirmed.
Judges HUNTER and STEELMAN concur.