All opinions
are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
Reports. In the event of discrepancies between the electronic version of an
opinion and the print version appearing in the North Carolina Reports and North
Carolina Court of Appeals Reports, the latest print version is to be considered
authoritative.
NO.
COA07-1001
NORTH
CAROLINA COURT OF APPEALS
Filed: 19
August 2008
DEBORAH A.
POLK,
Employee,
Plaintiff
v.
North Carolina Industrial Commission
I.C. File No. 137146
NATIONWIDE
RECYCLERS, INC.,
Employer
TRAVELERS
INSURANCE CO.,
Carrier,
Defendants
Appeal by
plaintiff from an opinion and award entered 4 April 2007 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 20 February 2008.
Poisson,
Poisson & Bower, PLLC, by Fred D. Poisson, Jr., and E. Stewart Poisson, for
plaintiff-appellant.
Hedrick,
Gardner, Kincheloe & Garofalo, L.L.P., by Neil P. Andrews and Jennifer P.
Pulley, for defendant-appellees.
HUNTER,
Judge.
Deborah A.
Polk (“plaintiff”) appeals from an opinion and award by the Industrial
Commission resolving her claim for workers’ compensation against former employer
Nationwide Recyclers, Inc. (“defendant”)[1]. After careful review, we affirm in part
and reverse in part.
I.
Defendant
hired plaintiff to work as a wastewater operator on 3 June 2000. On 3 July 2000, plaintiff sustained a
compensable injury to her elbow.
Plaintiff was diagnosed with a contusion on her left elbow causing
labored motion and lateral tenderness.
The diagnosing doctor restricted plaintiff’s gripping and other
activities at work. After seeing a
series of doctors and undergoing numerous tests and surgery, plaintiff was
released to light duty work status on 7 May 2001. When plaintiff experienced no relief
from her pain, she underwent further testing on 2 May 2002. She was released at maximum medical
improvement on 1 July 2002 by her treating physician, who assigned her left arm
a twelve percent permanent partial impairment rating.
Plaintiff was
out of work and received benefits for this permanent partial disability under
the Workers’ Compensation Act from 5 April 2002 through 23 April 2003. When defendant could not accommodate her
physical restrictions, she was terminated on 3 July 2002. Plaintiff continued to receive medical
treatment. On 23 April 2003,
plaintiff was hired as a dispatcher by Carolina
By-Products.
On 4 February
2005, defendant filed Form 33, requesting that plaintiff’s claim be assigned for
hearing; per the form, defendant wished to begin paying permanent partial
disability benefits to plaintiff and was requesting an order to do so. The deputy commissioner’s opinion and
award held that plaintiff was entitled to benefits under both N.C. Gen. Stat.
§97-29 (2007) for constructive (temporary total) disability and N.C. Gen. Stat.
§97-31 (2007) for her permanent partial disability, but that she was not
required to make an election of these remedies. Defendant appealed to the Full
Commission, which reversed the deputy commissioner and held that plaintiff was
eligible for benefits only under N.C. Gen. Stat. §97-31 and awarded her benefits
under that statute, as well as attorney’s fees and continuing medical
treatment. Plaintiff appeals to
this Court.
II.
Plaintiff
makes two arguments pertaining to one of the few modifications made by the Full
Commission to the deputy commissioner’s order. Whereas the deputy commissioner awarded
benefits to plaintiff under N.C. Gen. Stat. §97-29, the Full Commission held
that while plaintiff was not entitled to benefits under that statute, she
was entitled to benefits under N.C. Gen. Stat. §97-31(13) and could not
delay filing for compensation under that statute. Plaintiff argues that the Full
Commission erred in both conclusions.
We consider plaintiff’s arguments in turn.
A.
Plaintiff
first argues that the Full Commission’s conclusion that she failed to show she
is entitled to benefits under N.C. Gen. Stat. §97-29 was in error both because
it misapplies the law and because it is based upon findings of fact that are not
supported by competent evidence in the record. Both points are without
merit.
The deputy
commissioner’s order stated that plaintiff’s “position with Carolina By-Products
is overly modified and is not indicative of her wage-earning capacity in the
competitive labor market.” Pursuant
to the Supreme Court’s holding in Peoples v. Cone Mills Corp., 316 N.C.
426, 438, 342 S.E.2d 798, 806 (1986), the deputy commissioner concluded there
was insufficient evidence in the record to make findings as to plaintiff’s
wage-earning capacity.
The Full
Commission’s opinion distinguished Peoples and reversed this conclusion,
stating:
In asserting
that she is entitled to temporary total disability benefits under N.C. Gen.
Stat. §97-29 for constructive disability, plaintiff has relied on Peoples
[], claiming that her current job is modified and, thus, an unreliable basis for
determining her wage earning capacity. . . . The [Supreme] Court stated “proffered
employment would not accurately reflect earning capacity . . . if [it] is so
modified because of the employee’s limitations that it is not ordinarily
available in the competitive job market.” [] However, the Full Commission finds the
present case to be distinguished from Peoples in that the employment at
issue with Carolina By-Products was actually obtained by plaintiff in the
competitive market, and was not proffered by the defendant-employer. The Full Commission declines to
interpret Peoples as holding that employment that was obtained in the
competitive job market, and not proffered by the defendant-employer, is
insufficient evidence of wage-earning capacity. The Full Commission further finds there
to be insufficient evidence to find that plaintiff’s job duties with Carolina
By-Products have been modified and, thus, finds that plaintiff has shown that
she is capable of employment in the competitive market at wages that are equal
to or greater than her pre-injury average weekly wage. Thus, plaintiff has failed to show that
she is entitled to temporary total disability benefits under N.C. Gen. Stat.
§97-29 for constructive disability.
Plaintiff
argues that the Full Commission misapplied the law on this point. We disagree.
N.C. Gen.
Stat. §97-29 applies only to cases of total disability.
To support a
conclusion of disability, the Commission must find: (1) that the plaintiff was incapable
after his injury of earning the same wages he earned before his injury in the
same employment, (2) that the plaintiff was incapable after his injury of
earning the same wages he earned before his injury in any other employment and
(3) that the plaintiff’s incapacity to earn was caused by his
injury.
Hendrix v.
Linn-Corriher Corp., 317 N.C.
179, 186, 345 S.E.2d 374, 378-79
(1986). Plaintiff testified that
she earned more post-injury than she had pre-injury. Per Peoples, however, the
post-injury job must have been attained in a competitive market; if the job
provided post-injury was “‘so modified because of the employee’s limitations
that it is not ordinarily available in the competitive job market,’ the job is
‘make work’ and is not competitive.”
Jenkins v. Easco Aluminum, 165 N.C. App. 86, 95, 598 S.E.2d 252,
258 (2004) (quoting Peoples, 316 N.C. at 438, 342 S.E.2d at
806).
Plaintiff argues that her position with Carolina By-Product -- her post-injury employment -- was so modified as to constitute make work. Plaintiff makes much of the fact that other employees had to assist her with her duties; however, as the Full Commission noted, when plaintiff was hired by Carolina By-Products after her injury, the company “was aware of her restrictions[.]” Plaintiff does not dispute the Full Commission’s conclusion that the employment with Carolina By-Products “was actually obtained by plaintiff in the competitive market, and was not proffered by the defendant-employer.”
Plaintiff
argues that the position was thereafter modified to the extent that it is not
indicative of her ability to find employment elsewhere. See Peoples, 316 N.C. at 438, 342
S.E.2d at 806. This argument bleeds
into her next argument: That the
Full Commission’s conclusion on this point was not based on competent findings
of fact. Essentially, plaintiff
argues that the Commission should have believed her version of the facts
(wherein her duties were heavily modified to suit her physical limitations)
rather than the testimony of Roger Dunhoft (“Dunhoft”) (wherein her duties were
not heavily modified) because he did not have adequate knowledge of her
situation. She asks this Court to
disregard his testimony on that basis.
However,
[t]he
Commission is the sole judge of the credibility of the witnesses and the weight
to be given their testimony. The
courts may set aside findings of fact only upon the ground they lack evidentiary
support. The court does not have
the right to weigh the evidence and decide the issue on the basis of its
weight. The court’s duty goes no
further than to determine whether the record contains any evidence tending to
support the finding.
Anderson v.
Construction Co., 265 N.C.
431, 433-34, 144 S.E.2d 272, 274 (1965) (citations
omitted).
It is clear
from the record that Dunhoft was plaintiff’s direct supervisor for nearly a year
and had contact with her on a daily basis. He testified as to her assigned work, the
work of persons in the same job, and modifications that had been made for
plaintiff because of her disability.
This testimony is covered in detail in the Full Commission’s findings of
fact 21 and 22. We cannot say,
therefore, that no evidentiary basis exists to support the Full Commission’s
findings on these points.
Because plaintiff has not shown that the Full Commission misapplied the law nor that its findings of fact were not based on competent evidence, we overrule these assignments of error.
B.
As this Court
has noted before, the other method by which benefits may be claimed under the
Workers’ Compensation Act is provided by N.C. Gen. Stat. §97-31. The Full Commission’s conclusion as to
this statute stated:
[T]he only
remedy available to plaintiff at this juncture is to receive payment for the
twelve percent (12%) permanent partial disability rating to her left arm per
N.C. Gen. Stat. §47-31(13).
[Plaintiff’s doctor] found plaintiff to be at maximum medical improvement
following her second surgery on July 1, 2002, and assigned the twelve percent
(12%) rating to plaintiff’s left arm.
Maximum medical improvement is defined as the point [at] which the
condition or injury has stabilized with respect to further improvement. . .
. [Plaintiff’s doctor] testified
that as of July 1, 2002, plaintiff’s injury had stabilized. Based on the evidence of record,
plaintiff has provided no rational basis -- in law or fact -- upon which to find
that plaintiff should be able to defer the only remedy available to her at this
juncture, which is to receive payment for the twelve percent (12%) permanent
partial disability rating to her left arm per N.C. Gen. Stat.
§97-31(13).
Plaintiff
argues that defendant cannot force her to elect a remedy for her
disability. This argument is flawed
in two respects: First, per N.C.
Gen. Stat. §97-83 (2007), “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”; thus, defendant was permitted
to request a hearing as to plaintiff’s benefits under the Act in the first
place. Second, per the Full
Commission’s ruling, plaintiff does not have two remedies between which to pick;
the Full Commission held that she is entitled to benefits only under N.C. Gen.
Stat. §97-31, a ruling we affirmed above.
Thus, this argument is without merit.
We note that
plaintiff argues at length that Knight v. Wal-Mart Stores, Inc.,
“expressly gives the choice solely to the claimant as to when to make an
election with regard to benefits for permanent injury” and states that “the
right to petition the Commission to seek indemnity compensation lies with the
claimant, not the defendants[.]”
Knight, 149 N.C. App. 1, 16, 562 S.E.2d 434, 445 (2002). This argument misconstrues the holding
of Knight. Plaintiff quotes
this portion of the opinion in support of her argument: “MMI represents the first point in time
at which the employee may elect, if the employee so chooses, to receive
scheduled benefits for a specific physical impairment under N.C. Gen. Stat.
§97-31[.]” Id. (emphasis
omitted). However, this statement
is a summary point within an extended explanation of how the concept of MMI
relates to N.C. Gen. Stat. §§97-29 and -31, as shown in this
quote:
There is a
great deal of confusion regarding what significance, if any, the concept of MMI
has within the context of a loss of wage-earning capacity pursuant to either
N.C. Gen. Stat. §97-29 or §97-30, and this confusion has produced two lines of
case law exemplified recently in two opinions simultaneously issued by this
Court. . . .
We have
concluded that the primary significance of the concept of MMI is to delineate a
crucial point in time only within the context of a claim for scheduled benefits
under N.C. Gen. Stat. §97-31, and that the concept of MMI does not have any
direct bearing upon an employee’s right to continue to receive temporary
disability benefits once the employee has established a loss of wage-earning
capacity pursuant to N.C. Gen. Stat. §97-29 or §97-30.
Id. at 13-14,
562 S.E.2d at 443 (emphasis omitted).
This meaning can also be seen if the context of the quote plaintiff uses
is given:
The primary
significance of the concept of MMI . . . is to delineate when “the healing
period” ends and the statutory period begins in cases involving an employee who
may be entitled to benefits for a physical impairment listed in N.C. Gen. Stat.
§97-31. In other words, MMI
represents the first point in time at which the employee may elect, if the
employee so chooses, to receive scheduled benefits for a specific physical
impairment under N.C. Gen. Stat. §97-31 (without regard to any loss of
wage-earning capacity). MMI does
not represent the point in time at which a loss of wage-earning capacity under
N.C. Gen. Stat. §97-29 or §97-30 automatically converts from “temporary” to
“permanent.”
Id. at 16, 562
S.E.2d at 445 (footnote omitted).
Plaintiff misconstrues the holding of Knight, which in no way bars
defendant from asking the Full Commission to resolve this
case.
III.
Plaintiff
next argues that the Full Commission did not, as it is required to do, consider
all evidence presented.
Essentially, plaintiff’s argument is that the Full Commission must not
have considered the evidence presented because it did not indicate having done
so by making findings of fact regarding them. Part of her argument is that the deputy
commissioner’s order did so, and thus the Full Commission erred in not including
them as well. This argument is
without merit.
It is true
that “before finding the facts, the Industrial Commission must consider and
evaluate all of the evidence[,]” Lineback v. Wake County Board of
Commissioners, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997), and “may
not discount or disregard any evidence, but may choose not to believe the
evidence after considering it.”
Weaver v. American National Can Corp., 123 N.C. App. 507, 510, 473
S.E.2d 10, 12 (1996) (emphasis omitted).
However, in this case, the Full Commission’s opinion states outright that
it “affirms the Opinion and Award of Deputy Commissioner Deluca with
modifications.” (Emphasis
added.) That is, the Full
Commission’s opinion is not an order meant to stand on its own, but rather a
modification of the deputy commissioner’s order. As plaintiff herself states, the facts
at issue were included in the deputy commissioner’s order. We see no reason to require that such an
order restate all the findings of fact and conclusions of law from the original
order that need no modification.
Considering that defendants filed an appeal containing thirty-two alleged
errors, it is not surprising that the Full Commission did not address each
individually.
However, the
same does not hold true for plaintiff’s argument about the Full Commission’s
failure to address the adjustment of her weekly wage in its order. The deputy commissioner’s order
stated: “Defendants[2]
shall complete a Form 22 and pay any arrearages that it may indicate.” Defendant subsequently completed a Form
22 and filed a notice of appeal as to that portion of the order. The Full Commission’s opinion and award
does not address the form or that appeal, which plaintiff argues was error. We agree. The Full Commission’s opinion and award
simply repeats the finding of fact as to plaintiff’s weekly wage made by the
deputy commissioner’s opinion and award, with no reference to the Form 22 filed
by defendant in the interim.
Whereas with other omitted findings we may assume that the Full
Commission simply wished to affirm the deputy commissioner’s opinion and award,
here new evidence has arisen between the hearings, and the Full Commission must
address that new evidence in its opinion and award. As such, we reverse only the portion of
the opinion and award that calculates plaintiff’s weekly wage and remand to the
Full Commission for findings only as to this figure.
IV.
Because there
is no evidence in the record that the Full Commission considered the Form 22
filed by defendant, we remand to the Full Commission for findings only as to the
calculation of plaintiff’s weekly wage.
Because the Full Commission did not otherwise err in its opinion and
award, we affirm as to the remainder.
AFFIRMED IN
PART; REVERSED IN PART.
Judges BRYANT
and JACKSON concur.
[1] Although both Nationwide
Recyclers, Inc., and Travelers Insurance Co. are defendants in this action, for
ease of reference, we use “defendant” to refer only to Nationwide Recyclers,
Inc., plaintiff’s employer.
[2] “Defendants” (plural)
here refers to both defendant-employer and defendant Travelers Insurance
Co.