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authoritative.
NO. COA05-343
NORTH CAROLINA COURT OF APPEALS
Filed: 15 November 2005
CHARLES HALEY
Employee-Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 128293
ABB, INC.
Defendant-Employer,
SELF INSURED (GALLAGHER
BASSETT
SERVICES, INC.,
Servicing
Agent).
Appeal by defendant from an Opinion and Award entered 4
November 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 October
2005.
The
Deuterman Law Group, PA, by Daniel L. Deuterman and Joel W. Davis, for
plaintiff-appellee.
McGuireWoods,
LLP, by Steven T. Ackermann, for defendant-appellant.
BRYANT, Judge.
ABB, Inc. (defendant) appeals an Opinion and Award entered 4
November 2004 by the North Carolina Industrial Commission (Full Commission)
awarding Charles Haley (plaintiff) temporary total disability compensation,
temporary partial disability compensation and medical expenses incurred for the
treatment of plaintiff’s disability; and ordering defendant to pay plaintiff’s
attorney’s fees and a sanction of $1,000.00 for failure to comply with the
Workers’ Compensation Rules.
On 29 January 2001 plaintiff sustained a compensable injury
by accident to his right knee when he slipped off a pallet while working as a
stock room attendant/receiving clerk for defendant. Defendant accepted liability for plaintiff’s right knee injury by
filing a Form 60 on 30 March 2001,
wherein the carrier agreed to make temporary total disability payments
based on the average weekly wage of $533.20, which yields a weekly compensation
rate of $355.48. On 10 April 2001,
defendant filed an amended Form 60 listing an average weekly wage for plaintiff
of $1,097.44 which yields the maximum compensation rate for 2001 of $620.00 per
week.
Plaintiff was initially treated by Dr. Robert Wainer, an
orthopaedic surgeon. On 16 March 2001,
Dr. Wainer performed knee surgery on plaintiff. Thereafter, plaintiff’s condition deteriorated and he was
subsequently diagnosed by Dr. Wainer as having developed reflex sympathetic
dystrophy (RSD). Dr. Wainer referred
plaintiff to Dr. Lewis A. Koman at North Carolina Baptist Hospital for
treatment of his RSD.
Plaintiff underwent several diagnostic exams to determine
the extent of his complex regional pain syndrome (CRPS), also referred to as
RSD. The results of the diagnostic
exams indicated plaintiff had an abnormal pain reaction and plaintiff was
diagnosed by Dr. Koman as suffering from severe arthrofibrosis, or scar tissue
in the knee joint, and CRPS in the right leg, secondary to the admittedly
compensable knee injury of 29 January 2001.
CRPS or RSD is a syndrome that includes pain which is usually out of
proportion to the injury and includes autonomic dysfunction and functional
impairment.
On 31 October 2001, plaintiff underwent a repeat arthroscopy
performed by Dr. Gary Poehling. The
second arthroscopy revealed very severe arthrofibrosis in plaintiff’s right
knee, which Dr. Koman felt was directly related in part to the severity of
plaintiff’s injury. Although the
arthroscopy of 31 October 2001 restored some range of motion to plaintiff’s
leg, plaintiff continued to experience severe and disabling symptoms of
CRPS. Plaintiff did not regain
functional use of his right leg and remained on crutches.
On 16 January 2002, Dr. Koman found plaintiff unable to work
and referred him for pain management.
On 21 January 2002, Dr. Koman released plaintiff to sedentary work,
restricted to sitting. Plaintiff was
allowed to work half days for two weeks, for six hours per day in the third
week, and full time in the fourth week.
Plaintiff returned to work with defendant on 26 January 2002
in a created shipping clerk position. This position normally required a worker
to load trucks, attach labels and complete paperwork. However, in order to adhere to plaintiff’s restrictions,
plaintiff was only required to complete paperwork.
Dr. Koman continued to treat plaintiff and on 24 April 2002
Dr. Koman found plaintiff needed additional sympathetic block injections and
referred plaintiff to a psychologist.
On 24 May 2002 plaintiff was first examined by psychologist Dr. Timothy
N. Webster. Dr. Webster initially evaluated plaintiff to determine whether or
not plaintiff was a candidate for a spinal cord stimulator. Dr. Webster diagnosed plaintiff with major
depression secondary to chronic pain and situational stressors. Dr. Webster found plaintiff to have no
significant psychiatric history and found plaintiff to be credible based upon
the testing he administered.
On 10 July 2002, Dr. Koman noted he did not feel plaintiff
needed to remain sedentary, but felt plaintiff required a job that would accommodate
his continued use of crutches. Dr.
Koman did not feel p1aintiff needed additional therapy, but felt plaintiff’s
continuing symptoms of pain needed to be addressed. On 8 August 2002, plaintiff was seen by psychiatrist Dr. Henry E.
Branham. Dr. Branham diagnosed
plaintiff with major depression, single episode, non-psychotic, secondary to
chronic pain syndrome and RSD. A spinal
cord stimulator was surgically installed by Dr. Stuart Meloy of Piedmont Pain
Management in December 2002. The trial of
the spinal cord stimulator was not successful and plaintiff was left with
severe back pain at the site of the insertion of the device into his spinal
cord.
In August of 2003 plaintiff was referred to Dr. Henry Ezell
Branham, Jr. for a psychiatric evaluation.
On 24 January 2003, Dr. Branham evaluated plaintiff and found plaintiff
to be so profoundly depressed and suicidal that Dr. Branham wrote plaintiff out
of work indefinitely. After receiving
Dr. Branham’s report Jean Bassett, defendant’s rehabilitation nurse overseeing
plaintiff’s case, referred plaintiff to Dr. Webster for psychological
counseling. Dr. Webster saw plaintiff
on 31 January 2003, at which time he found plaintiff’s depression was
considerably worse and plaintiff was having suicidal thoughts. Dr. Webster found plaintiff’s depression to
be disabling.
On 20 February 2003, plaintiff was given a functional
capacity evaluation and found to be capable of sedentary work for eight hours a
day. Dr. Koman last saw plaintiff on 26
February 2003, at which time Dr. Koman assigned a 100% permanent impairment
rating to plaintiff’s right leg. Dr.
Koman also placed plaintiff on permanent restrictions that included sedentary
work only, lifting ten pounds maximum, and limited walking and standing with crutches
only. Dr. Koman attributed the rating
and restrictions to the limitation of motion in plaintiff’s knee, the swelling,
the previous surgeries, the decreased function, and plaintiff’s inability to
walk. Dr. Koman causally related the
rating and restrictions to plaintiff’s compensable injury of 29 January
2001. Dr. Koman released plaintiff to
further care with pain management professionals and continued psychiatric
treatment.
The Full Commission found that, as the result of the
compensable injury by accident, plaintiff was totally disabled and unable to
work in any employment from 18 March 2001 until he returned to work on 26
January 2002. Upon his return to work,
plaintiff earned diminished wages and was paid temporary partial disability
benefits from 26 January 2002 through 30 June 2002, in varying amounts equal to
two-thirds of the difference between plaintiff’s average weekly wage of
$1,097.40 and his actual earnings.
The Full Commission also found that defendant unilaterally
and without explanation decided to terminate plaintiff’s temporary partial
disability benefits without seeking or receiving approval of the
Commission. On 17 October 2002, the
Commission issued an Order requiring defendant to pay plaintiff temporary
partial disability, subject to a 10% penalty for all payments more than 14 days
past due. Defendant did not timely file
an appeal of this Order. At the time of
the 30 April 2003 hearing before Deputy Commissioner Glenn, defendant had not
made any additional temporary partial disability payments to plaintiff and had
failed to comply with the Commission’s Order of 17 October 2002.
As a result of the termination of plaintiff’s benefits,
plaintiff suffered financial hardship.
The Full Commission found plaintiff’s financial problems after April
2002 were the direct result of defendant’s decision to terminate plaintiff’s
temporary partial disability benefits without approval of the Commission. Plaintiff’s financial problems compounded
and aggravated his depression resulting from the pain and disability of his
compensable knee injury of 29 January 2001.
Plaintiff has remained out of work since 24 January 2003
under Dr. Branham’s orders. The Full
Commission found plaintiff has not reached maximum medical improvement and
since 24 January 2003 has continued to be unable to work due to his disabling
depression and the physical pain and disability caused by his admittedly
compensable injury of 29 January 2001.
The Full Commission found, based on the greater weight of the credible
evidence, that plaintiff’s depression and other psychological conditions are
the proximate result of the pain associated with his compensable knee injury of
29 January 2001.
The Full Commission further found that plaintiff’s back
condition resulted from the implantation of the spinal cord stimulator and was
a natural and probable result of the compensable injury by accident and
resulting pain. The Full Commission
awarded plaintiff temporary total disability compensation, temporary partial
disability compensation, compensation for medical expenses incurred for the
treatment of his disability, and ordered defendant to pay plaintiff’s
attorney’s fees and a sanction of $1,000.00 for failure to comply with the
Workers’ Compensation Rules. Defendant
appeals.
_________________________
Defendant raises four issues on appeal: (I) whether the Full
Commission erred in assessing sanctions and attorney’s fees against defendant;
(II) whether the Full Commission erred in awarding plaintiff compensation for
his back and leg injuries prior to a second opinion evaluation; (III) whether
the Full Commission accurately determined plaintiff’s average weekly wage; and
(IV) whether the Full Commission erred in finding defendant is not entitled to
initiate vocational rehabilitation. For
the following reasons, we affirm the Opinion and Award of the Full Commission.
Review by this Court of a decision by the North Carolina
Industrial Commission is limited to the determination of “whether any competent
evidence supports the Commission’s findings of fact and whether [those]
findings . . . 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).
We note at the outset that defendant has failed to specifically assign
error to each finding of fact it contends is not supported by competent
evidence. Defendant merely asserts
“[t]he Deputy Commissioner’s and Full Commission’s findings of fact and
conclusions of law were unsupported by the evidence and/or contrary to the
Workers’ Compensation Act, N.C. Gen. Stat. Section 91-1 et seq.” “[F]indings of fact to which [an appellant]
has not assigned error and argued in his brief are conclusively established on
appeal.” Static Control Components, Inc. v. Vogler, 152 N.C. App. 599,
603, 568 S.E.2d 305, 308 (2002).
Furthermore, our “[a]ppellate review depends on specific exceptions and
proper assignments of error presented in the record on appeal. The assignment of error must clearly
disclose the question presented. A
single assignment [of error] generally challenging the sufficiency of the
evidence to support numerous findings of fact . . . is broadside and
ineffective.” Wade v. Wade, 72
N.C. App. 372, 375-76, 325 S.E.2d 260, 266 (1985) (internal citations omitted);
see also, N.C. R. App. P. 10.
Therefore, the Full Commission’s specific findings of fact are binding
on appeal. However, the Commission’s
conclusions of law are reviewed de novo. McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d
695, 701 (2004).
Finally, we note, in his brief, plaintiff moves this Court
to dismiss defendant’s appeal. “Motions
to an appellate court may not be made in a brief but must be made in accordance
with N.C. R. App. P. 37.” Horton v.
New South Ins. Co., 122 N.C. App. 265, 268, 468 S.E.2d 856, 858
(1996). We will limit our review only
to those issues properly preserved by the parties.
Defendant first claims the Full Commission erred in
assessing sanctions and attorney’s fees against defendant. Under Section 97-88.1 of the North Carolina
General Statutes the Industrial Commission may assess “the whole cost of the
proceedings including reasonable [attorney’s fees]” if the Commission
determines “any hearing has been brought, prosecuted or defended without
reasonable ground.” N.C. Gen. Stat.
§97-88.1 (2003); see also, Hieb v. Howell’s Child Care Ctr., Inc., 123
N.C. App. 61, 472 S.E.2d 208 (1996) (where the Full Commission properly awarded
attorney’s fees upon finding defendants in violation of Industrial Commission
rules by terminating compensation without the Commission’s approval, and by
refusing to resume immediate payments following the Deputy Commissioner’s
order). The Commission may also assess
a penalty of 10% of any “installment not paid within 14 days after it becomes
due.” N.C. Gen. Stat. §97-18(g)
(2003). Furthermore, Rule 802 of the
Workers’ Compensation Rules of the North Carolina Industrial Commission permits
the Commission to impose fees and sanctions upon a party that fails to comply
with the Commission’s rules or fails to timely file required forms. Workers’ Comp. R. of N.C. Indus. Comm’n 802,
2005 Ann. R. (N.C.) 919, 945-46; see also, Joyner v. Mabrey Smith Motor Co.,
161 N.C. App. 125, 587 S.E.2d 451 (2003) (where the Full Commission properly
imposed sanctions under Rule 802 when the defendant failed to answer
interrogatories within the appropriate time period and failed to request any
extension of time).
The Full Commission awarded plaintiff attorney’s fees of 25%
of the past due temporary partial disability compensation; a late payment
penalty of 10% on all past due temporary partial or total disability
compensation; a sanction of $1,000.00 for failure to comply with the Workers’
Compensation Rules by stopping plaintiff’s temporary partial disability
compensation without Commission approval; and attorney’s fees of 25% of all
compensation payable to plaintiff. The
Full Commission made the following pertinent findings of fact which are based
on competent evidence and therefore binding on appeal:
41. On or about June 30, 2002, defendant unilaterally and without explanation decided to terminate plaintiff’s temporary partial disability benefits. Defendant did not seek or receive Commission approval before terminating plaintiff’s benefits.
42. As a result
of the termination of plaintiff’s benefits, plaintiff suffered financial
hardship. . . . Plaintiff’s financial problems compounded and aggravated
plaintiff’s depression resulting from the pain and disability of his
compensable knee injury of January 29, 2001.
43. From the
period of April 28, 2002 through the date of the hearing before the Deputy
Commissioner, plaintiff received only three temporary partial disability
payments, requiring plaintiff’s counsel to request an order from the Commission
requiring defendant to make regular payments.
44. On October
17, 2002, the Commission issued an Order requiring defendant to pay plaintiff
temporary partial disability, subject to a 10% penalty for all payments more
than 14 days past due. Defendant did
not timely file an appeal of this Order.
45. At the time
of the hearing before Deputy Commissioner Glenn, defendant had not made any
additional temporary partial disability payments to plaintiff and failed to
comply with the Commission’s Order of October 17, 2002.
The Full Commission concluded “[d]efendant’s refusal to
comply with the Commission’s Order of October 17, 2002 to reinstate temporary
partial disability compensation and defendant’s denial of psychological
treatment were made without any reasonable basis.” The Full Commission’s conclusion that defendant’s refusal to
comply with the Commission’s order and its denial of psychological treatment
was without reasonable grounds and based on unfounded litigiousness was based
on sufficient evidence such that its decision to award reasonable attorney’s
fees was appropriate. See Hieb,
123 N.C. App. at 69, 472 S.E.2d at 213.
This assignment of error is overruled.
Defendant next claims the Full Commission erred in awarding
plaintiff compensation for his back and leg injuries prior to its guaranteed
second opinion evaluation. Defendant
argues it is statutorily entitled to a second opinion regarding plaintiff’s
permanent partial disability rating under Section 97-27(a) of the North Carolina
General Statutes. Defendant requested
an independent medical examination at the hearing before Deputy Commissioner
Glenn to obtain a second opinion which was denied.
N.C. Gen. Stat. §97-27 states:
(a) After an
injury, and so long as he claims compensation, the employee, if so requested by
his employer or ordered by the Industrial Commission, shall, subject to the
provisions of subsection (b), submit himself to examination, at reasonable
times and places, by a duly qualified physician or surgeon designated and paid
by the employer or the Industrial Commission. . . .
(b) In those
cases arising under this Article in which there is a question as to the
percentage of permanent disability suffered by an employee, if any employee,
required to submit to a physical examination under the provisions of subsection
(a) is dissatisfied with such examination or the report thereof, he shall be
entitled to have another examination by a duly qualified physician or surgeon .
. . .
N.C.G.S.
§97-27 (2003). “The language of the
statute, however, imposes no mandatory obligation on the Industrial Commission
to order an examination. When an employee [sic] requests the Commission to
order an employee to submit to an examination, whether the Commission grants or
denies the employer’s request is within the discretion of the Commission.” Taylor v. M. L. Hatcher Pick-Up &
Delivery Serv., 45 N.C. App. 682, 684-85, 263 S.E.2d 788, 790 (1980). Defendant chose plaintiff’s treating doctor
that gave him the disability rating for his right leg. Defendant has shown no abuse of discretion
by the Deputy Commissioner in finding that defendant was not entitled to an
independent medical evaluation for plaintiff’s leg injury. Furthermore, the Full Commission found,
based on credible evidence, that plaintiff’s back condition resulted from the
implantation of the spinal cord stimulator and was a natural and probable
result of the compensable injury by accident and resulting pain. Therefore the Full Commission did not err in
affirming the Deputy Commissioner’s findings and awarding plaintiff
compensation for his back and leg injuries.
This assignment of error is overruled.
Defendant also argues the Full Commission improperly
determined plaintiff’s average weekly wage.
In its Opinion and Award, the Full Commission found that “[d]efendant
shall pay plaintiff temporary total disability compensation at the rate of
$620.00 per week for the periods from March 18, 2001 through January 25, 2002
and from January 24, 2003 and continuing until further Order of the
Commission.” Defendant claims
plaintiff’s weekly wage was inflated due to the amount of overtime he worked in
the year prior to his injury by accident and his decrease in wages was not
caused solely by the accident, but rather also by the lack of overtime
available for plaintiff to work subsequent to his injury and his wages should
be recalculated.
The Full Commission found as fact that “[o]n April 10, 2001,
defendant filed an amended Form 60 listing an average weekly wage for plaintiff
of $1,097.40, which yields the maximum compensation rate for 2001 of $620.00
per week.” This finding was not
assigned as error by defendant and is binding upon this Court. Furthermore, evidence presented at the
hearing before Deputy Commissioner Glenn established that overtime was still
available to defendant’s workers and defendant had moved plaintiff to a
position where his overtime was not limited to that available on a single
production line. See Derosier v.
WNA, Inc., 149 N.C. App. 597, 602, 562 S.E.2d 41, 45 (2002). We find competent evidence supports the Full
Commission’s determination of plaintiff’s average weekly wage. This assignment of error is overruled.
Finally, defendant argues the Full Commission erred in
finding it is not entitled to initiate vocational rehabilitation. “In case of a controversy arising between
the employer and employee relative to the continuance of medical, surgical,
hospital, or other treatment, the Industrial Commission may order such further
treatments as may in the discretion of the Commission be necessary.” N.C. Gen. Stat. §97-25 (2003).
The Full Commission found as fact that plaintiff has been
assigned a 100% permanent partial impairment rating to his right leg and that,
physically, plaintiff is capable of sedentary work for eight hours a day. However, plaintiff has been found to be
unable to work due to psychological disability directly related to his chronic
pain and physical disability. Plaintiff
was seen by three different doctors concerning his psychological conditions,
one of which conducted an independent medical examination at the request of
defendant. The Full Commission found
the opinions and conclusions of each of the doctors examining and treating
plaintiff’s psychological condition were all consistent. Furthermore, the Full Commission found “[p]laintiff
has not reached maximum medical improvement of his depression and since January
24, 2003 has continued to be unable to work due to his disabling depression and
the physical pain and disability caused by his admittedly compensable injury of
January 29, 2001.”
In light of the findings, it is clear the Full
Commission exercised its sound and
proper discretion in denying defendant’s request for vocational rehabilitation
services until plaintiff is released by his treating physicians to return to
work or participate in vocational rehabilitation services. See, Shoemaker v. Creative Builders,
150 N.C. App. 523, 563 S.E.2d 622 (2002) (this Court affirmed the Full
Commission’s finding that vocational rehabilitation was futile and was properly
denied based on the testimony of the plaintiff’s treating physician). This assignment of error is overruled.
For the foregoing reasons, the Opinion and Award of the Full
Commission is affirmed.
Judges HUDSON and CALABRIA concur.