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opinions are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
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authoritative.
NO. COA07-732
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2008
JAMES R. STARR,
Employee,
Plaintiff-Appellee,
v. North
Carolina Industrial Commission
I.C.
File Nos. 134874 & 290784
GASTON COUNTY BOARD OF
EDUCATION, Employer, and
KEY RISK INSURANCE COMPANY,
Carrier,
Defendant-Appellees,
and
NORTH CAROLINA SCHOOL BOARDS
TRUST, Third-Party Administrator,
Defendant-Appellant.
Appeal
by third-party administrator-defendant from an opinion and award entered 2
February 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 14 January
2008.
The
Sumwalt Law Firm, by Mark T. Sumwalt and Vernon Sumwalt, for
plaintiff-appellee.
Hedrick,
Eatman, Gardner & Kinchloe, L.L.P., by Margaret M. Kingston and Allen C.
Smith, for defendant-appellant, North Carolina School Boards Trust.
Stiles,
Byrum & Horne, L.L.P., by Henry C. Byrum, Jr. for defendant-appellees
Gaston County Board of Education and Key Risk Insurance Company.
STEELMAN,
Judge.
This
Court may not re-weigh evidence when the findings of fact of the Industrial
Commission are supported by competent evidence in the record. Where those findings support the
Commission’s conclusions of law, its award must be affirmed. Because compensation payments pursuant to a
Form 60 are not a final award, the Commission acted within its authority to
order appellant to reimburse the appellee insurance carrier.
I. Factual and Procedural Background
This
matter involves two separate and distinct compensable injuries to James Starr
(hereinafter “plaintiff”), who was employed by the Gaston County Board of
Education (“employer”) as a groundskeeper on 17 April 2001 and on 6 August
2002.
On
17 April 2001, plaintiff injured his lower back while performing routine job
duties. At that time, employer was
self-insured with the North Carolina School Boards Trust (“NCSBT”). NCSBT filed a Form 60 in May 2001, admitting
plaintiff’s right to compensation for his back injury (“2001 injury”). Following lumbar surgery to repair a
herniated disc, plaintiff was released to return to work in October 2001. Between March and July 2002, plaintiff was
treated for low back pain, radiating into his right leg, by Dr. Herman
Gore. During this time, plaintiff
missed work and collected disability on three separate occasions because of
continuing pain.
On
6 August 2002, in the course and scope of plaintiff’s employment, his truck was
rear-ended by another vehicle. The day
following this accident, plaintiff reported an injury to his neck and right
shoulder to employer. At the time of
this accident, employer was insured for worker’s compensation by Key Risk
Insurance Company (“Key Risk”). On 7
August 2002, defendant filed a Form 19 reporting the accident and listing
injuries to plaintiff’s “neck & shoulder on right side.” On 13 September 2002, Key Risk filed a Form
60 describing the accident but not specifying the nature of plaintiff’s
injury. On 24 September 2002, plaintiff
filed a Form 18 listing injury to his “neck, right shoulder, mid back.”
At
a follow-up visit with Dr. Gore shortly after the August 2002 accident,
plaintiff reported pain in both legs.
While a clinical examination revealed his condition to be no different
than that found in a 15 July 2002 clinical exam, Dr. Gore referred plaintiff to
Dr. Petty, a neurosurgeon who had previously treated him in 1997 for a cervical
spine injury. Under Dr. Petty’s care,
plaintiff was released to return to work “with restrictions” on 11 February
2003. Despite Dr. Petty’s release,
plaintiff has not returned to work since August 2002 and has continued to see
Dr. Gore for pain management. Key Risk
continued to pay temporary total disability (“TTD”).
On
29 July 2003, Key Risk filed a Form 33 with the North Carolina Industrial
Commission, seeking (1) a determination that plaintiff’s disability since 11
March 2003 was related to the 17 April 2001 back injury, (2) reimbursement for
TTD compensation paid by Key Risk since that date, and (3) to end TTD
compensation for the August 2002 injury.
On 2 February 2007, the Full Commission entered an Opinion and Award,
holding that plaintiff’s disability related to the August 2002 accident lasted
only until 11 February 2003 and that any subsequent disability was related to
the April 2001 accident. It further
ordered that NCSBT reimburse Key Risk for all TTD compensation payments since
11 February 2003, to reimburse plaintiff for any underpayments during that
period of time, and to pay plaintiff TTD compensation until further order of
the Commission. NCSBT appeals.
II. Standard of Review
“Appellate review of an award from the
Industrial Commission is generally limited to two issues: (1) whether the
findings of fact are supported by competent evidence, and (2) whether the
conclusions of law are justified by the findings of fact. Clark v. Wal-Mart, 360 N.C. 41, 43,
619 S.E.2d 491, 492 (2005) (citing Hendrix v. Linn-Corriher Corp., 317 N.C.
179, 186, 345 S.E.2d 374, 379 (1986)). Where there is competent evidence to
support the Commission’s findings, they are binding on appeal even in light of
evidence to support contrary findings. McRae
v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004). The Commission’s conclusions of law are
reviewed de novo. Ramsey v.
Southern Indus. Constructors, Inc., 178 N.C. App. 25, 30, 630 S.E.2d 681,
685 (2006).
It
is the duty of the Commission to decide the matters in controversy and not the role
of this Court to re-weigh the evidence. See Crump v. Independence Nissan,
112 N.C. App. 587, 589, 436 S.E.2d 589, 592 (1993) (“[T]he full Commission has
the duty and responsibility to decide all matters in controversy between the
parties[.]”); Trivette v. Mid-South Mgmt., Inc., 154 N.C. App. 140, 144,
571 S.E.2d 692, 695 (2002) (“The Full Commission is the ‘sole judge of the
weight and credibility of the evidence.’”).
“Rule
28(b)(6) of the Rules of Appellate Procedure restricts our review to questions that
are supported by the arguments made in the brief. Where a party fails to bring forward any argument or authority in
their brief to support their assignments of error, those assignments of error
are deemed abandoned.” Williams v.
N.C. Dep’t of Env’t & Natural Res., 166 N.C. App. 86, 95, 601 S.E.2d
231, 236-37 (2004)(citations omitted), rev. denied, 359 N.C. 643, 614
S.E.2d 925 (2005); N.C.R. App. P. 28(b)(6) (2007).
III. Evidentiary and Ultimate Findings of Fact
We
note at the outset that the Commission’s findings of fact include both
evidentiary and ultimate findings of fact.
There are two kinds of
facts: Ultimate facts, and evidentiary facts.
Ultimate facts are the final
facts required to establish the plaintiff’s cause of action or the defendant’s
defense; and evidentiary facts are those subsidiary facts required to prove the
ultimate facts.
Woodard
v. Mordecai,
234 N.C. 463, 470, 67 S.E.2d 639, 644 (1951) (internal citations omitted); see
also In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675
(1997)(stating that determinations requiring the exercise of judgment or the
application of legal principles are more properly classified as conclusions of
law, while those reached through logical reasoning are more properly classified
as findings of fact).
IV. Material Aggravation of Pre-Existing
Condition
In its first argument, NCSBT contends that the Full Commission erred in concluding that the August 2002 injury did not materially aggravate or accelerate plaintiff’s pre-existing back condition caused by the 2001 accident. We disagree.
A. Evidentiary Findings of Fact
NCSBT asserts that many of the Commission’s
findings of fact are unsupported by the competent medical evidence in the
record and that conclusions of law 2, 3, and 5 were erroneous as a matter of
law. However, rather than bringing
forward its assignments of error challenging certain findings of fact, NCSBT
makes a series of broad sweeping statements to the effect that the Industrial
Commission’s decision was incorrect. To
the extent that NCSBT has failed to argue specific assignments of error
regarding the Industrial Commission’s findings of fact, they are deemed
abandoned. Williams, 166 N.C.
App. at 95, 601 S.E.2d at 236-37. We
further note that findings of fact 30-31 and 33-36, to which NCSBT assigns
error, require the application of legal principles and are more properly
classified as conclusions of law. Helms, 127 N.C. App. at 510, 491
S.E.2d at 675. We thus defer
consideration of arguments involving these findings, and limit our analysis in
this section to the Commission’s evidentiary findings.
Within
this argument, NCSBT contends that plaintiff’s 2001 disk injury improved
significantly following September 2001 surgery, and that clinical findings
regarding symptoms of left leg pain following the August 2002 motor vehicle
accident establish a material aggravation of his 2001 lumbar condition. Specifically, NCSBT contends that the
Commission’s findings of fact related to the issue of material aggravation of
his pre-existing back condition (evidentiary findings 7, 8, 10, 12, 14, 20-22,
and 28) are contrary to all competent evidence of record, because all competent
medical evidence demonstrates that plaintiff experienced significant
improvement following back surgery in 2001 and sustained a new lumbar injury
from the motor vehicle accident that caused persistent symptoms of back and
bilateral leg pain. NCSBT further
asserts that the Commission applied the wrong standard for determining causation.
The
Commission considered testimony from plaintiff, his supervisor, the Director of
Facility Services of the Gaston County Schools, and a human resources
representative. Depositions from three
physicians and a rehabilitation specialist, and associated medical records,
were also considered.
Findings Regarding
Plaintiff’s Back Surgery
Citing findings of fact 10 and 12, NCSBT
contends that the competent evidence showed that plaintiff reached “sustained
improvement” of his low back condition following surgery and was back at work
full-time and full duty as of 29 October 2001, and that there is no competent
medical evidence showing otherwise. To
the contrary, in findings of fact 9, 11, and 13, unchallenged by NCSBT, the
Commission found that plaintiff’s pain did not resolve following surgery, that improvement
was “slow,” and that Dr. Doute continued to recommend a lumbar fusion in July
2002 to address the degeneration in plaintiff’s low back. Employer’s human resource officer testified
to plaintiff’s work record, which included multiple absences in the months
between the surgery and the August 2002 motor vehicle accident. Finally, Dr. Doute testified that
plaintiff’s postoperative improvement was “pretty slow,” that decreases in pain
medication led to increased pain, and
that the postoperative pain was due to a “structural problem with the
disk.” We hold that findings of fact 10
and 12 are supported by plaintiff’s testimony, testimony from the human
resources representative for employer, the testimony of Drs. Doute and Gore,
and other findings of fact by the Commission.
Findings Regarding the
Nature and Duration of the 2002 Injury
NCSBT challenges finding of fact 28, which
states that:
After giving careful
consideration to the competent credible evidence in its entirety, it is
determined that the greater weight of the evidence at most shows a temporary
aggravation of Plaintiff’s pre-existing neck condition following his August 6,
2002 injury by accident. From the
evidence of record, this temporary aggravation resulted in disability to
Plaintiff from August 7, 2002 and lasted only until February 11, 2003, when Dr.
Petty determined Plaintiff was capable of work and his only restriction being
to avoid placing his head in an unusual position.
Having
reviewed the deposition testimony of the treating physicians, we conclude that
this finding is supported by competent medical testimony from the neurologist
who treated plaintiff for complaints of neck and shoulder pain following the
2002 accident.
Neurologist
J. M. Petty, M.D., testified that plaintiff’s 2002 neurological and clinical
exams were normal. He further testified
that plaintiff’s reported pain and 2002 MRI scan were similar to those in Dr.
Petty’s 1997 records, and that the only basis for relating plaintiff’s neck
pain to the 2002 motor vehicle accident was plaintiff’s history, rather than
clinical or diagnostic findings.
Plaintiff testified that he had had neck surgery in 1983. During plaintiff’s course of treatment, Dr.
Petty released him to work on 11 February 2003, 11 March 2003, and 2 September
2004. These three work releases
included limited restrictions based only upon plaintiff’s complaints of pain,
for which Dr. Petty recommended physical therapy. Moreover, finding of fact 23, unchallenged by NCSBT, states that:
Dr. Gore acknowledged that
plaintiff’s low back pain continued at the same level as prior to the motor
vehicle accident. Dr. Gore never made
an assessment of whether there was a material aggravation of plaintiff’s low
back condition as a result of his motor vehicle accident. He deferred to the physician who treated
plaintiff for his neck injury on any disability associated with that condition.
Finding
of fact 23 is binding on this Court. See
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)
(unchallenged findings of fact are binding on appeal). We hold that Dr. Petty’s deposition
testimony and finding of fact 23 are competent evidence supporting the
Commission’s conclusion that any aggravation to plaintiff’s pre-existing neck
condition was temporary.
Having
determined that there was competent evidence supporting finding of fact 28, we
need not address NCSBT’s challenge to findings of fact 7, 8, 20, and 22. We decline to address NCSBT’s argument that
finding of fact 28 “omits salient facts” and is contrary to the competent
evidence of record and to the law. McRae,
358 N.C. at 496, 597 S.E.2d at 700; Trivette, 154 N.C. App. at 144, 571
S.E.2d at 695.
Regarding finding of fact 14, NCSBT asserts that
this finding “modifies” Key Risk’s Form 60 and is an unauthorized limitation on
Key Risk’s liability for the 2002 injury. Finding of fact 14 states:
14. Plaintiff sustained a second admittedly compensable injury by accident [a]rising out of and in the course of his employment with the Defendant-employer on August 6, 2002, when he was involved in a motor vehicle accident. The Defendant-employer and Key Risk admitted compensability for a neck injury with a Form 60 dated September 6, 2002. Plaintiff filed a Form 18 on September 5, 2002, alleging injuries to his neck, right shoulder and mid-back. These Defendants stipulated that they have continued to pay Plaintiff temporally [sic] total disability since August 6, 2002.
We
have reviewed the record and conclude that finding of fact 14 is supported by
competent evidence.
The
record clearly reflects that none of the Industrial Commission Forms filed by
any party in conjunction with the 2002 accident specified an injury to the
lumbar region of the back. The Form 60
filed by Key Risk in September 2002 describes the August 2002 accident as being
a rear-end collision, but in no way describes the nature of plaintiff’s
injury. Plaintiff’s 2002 Form 18
described his injuries from the motor vehicle accident as being to his “Neck,
right shoulder, mid back.” While finding
of fact 14, as stated, may not be technically correct, any deficiency is
immaterial when viewed in light of the medical testimony. Appellees’ Forms 18 and 60, coupled with the
medical testimony, provide competent evidence before the Commission that the
Form 60 filed by Key Risk admitted plaintiff’s right to compensation from a
cervical injury, as articulated in finding of fact 14.
Furthermore,
we disagree with NCSBT’s characterization of this finding as a “modification”
to Key Risk’s Form 60. The Form 60
clearly admitted plaintiff’s right to compensation for injuries of 6 August
2002. NCSBT’s own Form 60 just as
clearly admitted compensability for the 2001 lower back injury. As factfinder, the Commission acted within
its authority to infer from Key Risk’s Form 60 and plaintiff’s Form 18 that the
admission was “limited” to the cervical injury and its resulting symptoms. Trivette, 154 N.C. App. at 144, 571
S.E.2d at 695.
We
conclude that the record contains competent evidence supporting findings of
fact 10, 12, 14, and 28.
B. Ultimate Findings of Fact
NCSBT
next contends that the Commission erred in its findings of fact (nos. 30, 31,
33, 34, and 36) that: (1) the evidence failed to establish that the 2002
accident materially aggravated or accelerated plaintiff’s preexisting low back
condition; (2) the greater weight of the evidence established that plaintiff’s
disability since 11 February 2003 resulted from the 17 April 2001 low back
injury; (3) Key Risk was entitled to reimbursement from NCSBT for compensation
paid since 11 February 2003; and (4) plaintiff was entitled to have NCSBT pay
for medical treatment necessitated by the 17 April 2001 injury. Each of these is an ultimate finding of
fact, required to establish the plaintiff’s cause of action. Woodard, 234 N.C. at 470, 67 S.E.2d
at 644.
NCSBT
contends that, because the medical records indicated bilateral leg pain in the
time period following the August 2002 motor vehicle accident, the Commission
erred in finding that plaintiff’s back condition did not substantially change
as a result of that accident, nor did the accident materially aggravate or
accelerate the low back injury.
Findings of fact nos. 4, 6, 9, 11, 13, 16-19, 21, 23-24, and 29,
uncontested on appeal, support findings of fact 30, 31, 33, 34, and 36, as do
findings of fact nos. 10, 12, and 28, discussed supra. Where there is competent evidence to support
the Commission’s findings, we will not re-weigh the evidence even though there
may be evidence to support contrary findings.
Clark v. Wal-Mart, 360 N.C. at 43, 619 S.E.2d at 492; Trivette,
154 N.C. App. at 144, 571 S.E.2d at 695.
NCSBT
further contends that the Commission applied the wrong causation standard to
the evidence, erroneously relying upon the “absence of MRI evidence” to conclude
that the 2002 accident did not materially aggravate or accelerate plaintiff’s
lumbar injury. Because the cases cited by NCSBT dealt with different facts and
circumstances than those before us in this matter, they are not controlling and
we do not reach this argument.
We
conclude that the record contains competent evidence supporting findings of
fact 30, 31, 33, 34, and 36.
C. Conclusions of Law
Finally, NCSBT contends that the Commission
erred in its conclusions of law (nos. 2, 3, and 5) that: (1) the 2002 accident
did not materially aggravate or accelerate plaintiff’s 2001 injury; (2) the
greater weight of the evidence establishes that plaintiff’s lower back and leg
pain after the 2002 accident was not caused by that accident; and (3)
defendant-appellees are entitled to reimbursement from NCSBT for compensation
paid since 11 February 2003. We review
the Commission’s conclusions of law de novo, but this review is limited
to whether the findings of fact support the Commission’s conclusions of
law. Ramsey, 178 N.C. App. at
30, 630 S.E.2d at 685.
All
three of these conclusions are supported by the findings discussed supra. Conclusions of law 2 and 3 are specifically
supported by finding of fact 33, which states that “the greater weight of the
evidence shows that Plaintiff’s disability since February 11, 2003, has
resulted from his low back injury on April 17, 2001.” Conclusion of law 5, which held that Key Risk paid compensation
to plaintiff on the good faith belief that plaintiff’s disability was due to a
neck injury, is specifically supported by findings of fact 14 and 34, which
establish appellees’ record of payment and right to reimbursement,
respectively.
We
thus hold that competent evidence supports the Commission’s findings, and the
Commission’s conclusions and Award are justified by those findings. Clark, 360 N.C. at 43, 619 S.E.2d at
492. This argument is without merit.
V. Equitable Arguments
In
its remaining arguments, NCSBT argues that Key Risk’s claims are barred by
equitable principles of waiver and estoppel.
We disagree.
NCSBT
asserts that Key Risk waived its right to contest liability on the 2002 claim
because it paid TTD for two years without limiting its liability through the
filing of an Industrial Commission Form 33.
NCSBT further asserts that principles of estoppel bar reimbursement of
those payments. As discussed in IV.A.
above, at no time was the injury resulting from the August 2002 accident
described by any party as being to plaintiff’s low back. Industrial Commission Forms 18 and 60, filed
by the parties, established that the 2001 accident caused the injury to
plaintiff’s low back.
“Equity
will not lend its aid in any case where the party seeking it has a full and
complete remedy at law.” Jefferson
Standard Life Ins. Co. v. Guilford County, 225 N.C. 293, 300, 34 S.E.2d
430, 434 (1945)(citations omitted). An
appeal from the Industrial Commission is permitted only as to matters of
law. Fox v. Cramerton Mills, 225
N.C. 580, 583, 35 S.E.2d 869, 870-71 (1945).
We have already established that the Commission acted within its
authority when it limited Key Risk’s liability to the cervical injury. Consequently, we limit our analysis to
NCSBT’s contention that payments prior to the 11 October 2004 filing of the
Form 33 are non-reimbursable within the meaning of N.C. Gen. Stat. §97-86.1(d).
The
relevant provision of the Workers’ Compensation statute reads:
In any claim under the
provisions of this Chapter wherein one employer or carrier has made payments to
the employee or his dependents pending a final disposition of the claim and it
is determined that different or additional employers or carriers are liable,
the Commission may order any employers or carriers determined liable to make repayment in full or in part
to any employer or carrier which has made payments to the employee or his
dependents.
N.C.
Gen. Stat. §97-86.1(d) (2005).
Contending that there was “no claim” under N.C. Gen. Stat. §97-86.1(d)
until the date that the Form 33 was filed, NCSBT argues that a plain reading of
the statute limits reimbursement to payments made “pending a final disposition
of the claim,” or between 11 October 2004 and the date of the Award.
This
Court has ruled that payment of compensation pursuant to a Form 60 is not a
final award of the Commission. Perez
v. American Airlines/AMR Corp., 174 N.C. App. 128, 131-32, 620 S.E.2d 288,
290-91 (2005) (analyzing such payments within the context of N.C.G.S. §97-47), disc.
review improv. allowed, 360 N.C. 587, 634 S.E.2d 887 (2006). Such payments are within the inherent powers
of the Commission to amend, see Ward v. Wake Cty. Bd. of Educ., 166 N.C.
App. 726, 731, 603 S.E.2d 896, 900 (2004), and the Commission acted within the
provisions of N.C. Gen. Stat.
§97-86.1(d) when it ordered NCSBT to make partial repayment to
defendant-appellees. We hold that the
Commission’s Opinion and Award is the final disposition of plaintiff’s claim as
established by the filing of the Form 60, not the Form 33.
This
argument is without merit.
IV. Conclusion
We hold that the Commission
did not err in its findings of fact, conclusions of law, or in its Award. Consequently, we affirm the 2 February 2007
Opinion and Award.
We deem abandoned those assignments of error not
addressed in defendant-appellant’s brief.
N.C. R. App. P. 28(b)(6).
AFFIRMED.
Chief Judge MARTIN and Judge
STEPHENS concur.