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authoritative.
NO. COA04-577
NORTH CAROLINA
COURT OF APPEALS
Filed: 5 April 2005
VONDA
KAY BROWN,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 147671
THE
KROGER COMPANY,
Employer,
CONTINENTAL
CASUALTY
INSURANCE
COMPANY,
Carrier,
Defendants.
Appeal by
defendants from opinion and award entered 2 December 2003 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 17 February 2005.
Faith Herndon
for plaintiff-appellee.
YOUNG, MOORE
& HENDERSON, P.A., by Joe E. Austin, Jr., and Jennifer T. Gottsegen, for
defendants-appellants.
TIMMONS-GOODSON,
Judge.
The Kroger
Company (“Kroger”) and Continental Casualty Insurance Company (“Continental”)
(collectively, “defendants”) appeal an opinion and award of the North Carolina
Industrial Commission awarding Vonda Kay Brown (“plaintiff”) total and partial
disability payments, medical treatment compensation, and a ten percent increase
in compensation. For the reasons
discussed herein, we affirm in part and remand in part.
The facts and
procedural history pertinent to the instant appeal are as follows: On 9 June 2001, plaintiff was employed by
Kroger as a deli and bakery manager. As
plaintiff was walking down a hallway near the manager’s office, she tripped on
an extension cord and fell to the floor, landing on her right side. As a result of her fall, plaintiff sustained
injuries to her right shoulder, knee, and elbow, and she also sustained
injuries to her sacrum and lumbar area.
Although
plaintiff refused medical attention on the day of her fall, she sought medical
attention from Concentra Medical Centers on 11 June 2001. Plaintiff returned to work on 21 June 2001,
and she continued to work at diminished wages through 18 July 2001. After returning to work, plaintiff received
medical treatment from Dr. Lyman Smith (“Dr. Smith”), an orthopedic
surgeon. Dr. Smith’s treatment of
plaintiff focused on the on-going right knee and shoulder problems plaintiff
was experiencing. Dr. Smith determined
that plaintiff’s shoulder problems were a result of bursitis caused by the fall
on 9 June 2001, and that plaintiff’s knee problems were caused by an arthritic
condition aggravated by the fall. Dr.
Smith recommended that plaintiff receive physical therapy for her injuries,
and, on 18 July 2001, Dr. Smith provided plaintiff with a note excusing her
from work until 22 August 2001. On 22
August 2001, Dr. Smith ordered plaintiff to receive magnetic resonance imaging
(“MRI”) on her right knee. Dr. Smith
anticipated that plaintiff could return to work if the MRI results were “normal.”
On 28 August
2001, plaintiff fell down stairs at her home when her right leg “gave out from
under” her. Following plaintiff’s 28
August 2001 fall, plaintiff sought treatment from Dr. Jeffrey Kobs (“Dr. Kobs”),
an orthopedic surgeon. As a result the
fall, plaintiff sustained injuries to her right ankle and her left knee. Due to these injuries, plaintiff was unable
to work until 24 January 2002.
In early
February 2002, plaintiff returned to work at Kroger. Plaintiff subsequently took vacation, and, on 12 February 2002,
plaintiff sought treatment from Dr. Suzanne Zorn (“Dr. Zorn”) of the Arthritis
Rheumatology Osteoporosis Center. Dr.
Zorn recommended that plaintiff refrain from working for approximately one
month.
Following her
fall on 9 June 2001, plaintiff filed a complaint with the North Carolina
Department of Labor, Division of Occupational Safety and Health (“NCDL/DOSH”). After investigating the circumstances
leading to plaintiff’s 9 June 2001 fall, NCDL/DOSH cited Kroger for four “nonserious”
occupational safety and health code violations. Defendants denied plaintiff’s compensation claim, and on 14
February 2002, North Carolina Industrial Commission Deputy Commissioner Edward
Garner, Jr. (“Deputy Commissioner Garner”), held an evidentiary hearing on the
matter. Following the hearing, the parties
deposed Dr. Smith and introduced stipulations and other records into
evidence. On 23 October 2002, Deputy
Commissioner Garner filed an opinion and award concluding that plaintiff
sustained injuries as a result of the 9 June 2001 fall, which Deputy Commissioner
Garner concluded arose out of and in the course of plaintiff’s employment with
Kroger. However, Deputy Commissioner
Garner denied plaintiff’s claim for compensation for those injuries associated
with the 28 August 2001 fall, “reject[ing]” plaintiff’s testimony regarding the
fall as “not being credible.” After
refusing to find “that plaintiff’s injury was caused by the willful failure of
[Kroger] to comply with a statutory requirement[,]” Deputy Commissioner Garner
also denied plaintiff’s claim for a ten percent increase in compensation due to
Kroger’s alleged statutory violations.
Deputy Commissioner Garner thereafter ordered defendants to pay
plaintiff total and partial disability payments as well as compensation for her
medical treatment, with the amount of compensation related to plaintiff’s right
knee injury deferred until plaintiff reached maximum medical improvement. Deputy Commissioner Garner also ordered
defendants to pay the costs associated with the deposition of Jeanine Alston (“Alston”),
an employee of NCDL/DOSH.
Both plaintiff
and defendants appealed Deputy Commissioner Garner’s award to the Full
Commission. Following review of the
matter on 5 May 2003, the Full Commission determined that it need not
reconsider evidence, receive further evidence, or rehear argument from the
parties. However, the Full Commission
did receive evidence regarding modifications of the compensability of plaintiff’s
28 August 2001 fall. In an opinion and
award filed 2 December 2003, the Full Commission concluded that plaintiff
sustained injuries from the 9 June 2001 fall, which the Full Commission
concluded arose out of and in the course of plaintiff’s employment with
Kroger. The Full Commission also
concluded that plaintiff sustained injuries as a result of her 28 August 2001
fall, which the Full Commission concluded was “the direct and natural result of
plaintiff’s June 9, 2001 injury by accident.”
The Full Commission further concluded that plaintiff was entitled to a
ten percent increase in compensation due to the “willful failure of [Kroger] to
comply with a statutory requirement reprimand by OSHA.” The Full Commission reserved the issue of
plaintiff’s entitlement to future benefits related to her wage-earning capacity
after 14 February 2002, concluding that “this evidence was not presented before
this panel.” The Full Commission
thereafter awarded plaintiff temporary and partial disability payments, medical
treatment compensation, and a ten percent increase in compensation. Defendants appeal.
We note
initially that defendants’ brief contains arguments supporting only eleven of
the original sixteen assignments of error on appeal. Pursuant to N.C.R. App. P. 28(b)(6) (2004), the omitted
assignments of error are deemed abandoned.
Therefore, we limit our present review to those issues properly
preserved by defendants for appeal.
The issues on
appeal are whether the Full Commission erred by: (I) increasing the amount of plaintiff’s compensation by ten
percent; (II) failing to rule on the propriety of the cost of a witness
deposition; (III) reserving the issue of plaintiff’s entitlement to future
benefits; (IV) concluding that plaintiff’s 28 August 2001 fall was related to
her prior accident; and (V) failing to define the time limit of plaintiff’s
award.
Defendants
first argue that the Full Commission erred by increasing the amount of
plaintiff’s compensation by ten percent pursuant to N.C. Gen. Stat.
§97-12. Defendants assert that there
was no evidence that Kroger violated any statute warranting the increased
award, and that N.C. Gen. Stat. §97-12 is unconstitutionally vague as applied
to the facts of this case. We disagree.
N.C. Gen. Stat.
§97-12 (2003) provides as follows:
When the injury
or death is caused by the willful failure of the employer to comply with any
statutory requirement or any lawful order of the Commission, compensation shall
be increased ten percent (10%). . . . The burden of proof shall be upon him who
claims an exemption or forfeiture under this section.
In the instant
case, defendants contend that there was no evidence that Kroger failed to
comply with any statutory requirement because “no statute prohibits an employer
from stretching an extension cord across a hallway.” However, as discussed above, following its investigation of Kroger,
NCDL/DOSH cited Kroger for four “nonserious” violations of federal occupational
safety and health codes. Specifically,
NCDL/DOSH cited Kroger for violation of 29 C.F.R. 1910.22, which provides as
follows:
This section
applies to all permanent places of employment, except where domestic, mining,
or agricultural work only is performed. Measures for the control of toxic
materials are considered to be outside the scope of this section.
. . . .
(b) Aisles and
passageways.
(1) Where
mechanical handling equipment is used, sufficient safe clearances shall be
allowed for aisles, at loading docks, through doorways and wherever turns or
passage must be made. Aisles and
passageways shall be kept clear and in good repairs, with no obstruction across
or in aisles that could create a hazard.
29 C.F.R.
1910.22 (2003). In its citation of
Kroger, NCDL/DOSH noted the presence of a “flexible cord extending across the
aisle/passageway [which] created a tripping hazard for employees working in
office.”
The North Carolina
Occupational Safety and Health Act provides that “[a]ll occupational safety and
health standards promulgated under the federal act . . . shall be adopted as
the rules of the Commissioner of this State unless the Commissioner decides to
adopt an alternative State rule as effective as the federal requirement and
providing safe and healthful employment in places of employment . . . .” N.C. Gen. Stat. §95-131(a) (2003); see N.C.
Gen. Stat. §95-129(2) (2003) (“Each employer shall comply with occupational safety
and health standards or regulations promulgated pursuant to this Article[.]”). We conclude that, by virtue of N.C. Gen.
Stat. §95-131(a), the requirements of 29 C.F.R. 1910.22(b)(1) are a “statutory
requirement” that brings plaintiff’s injury and Kroger’s subsequent citation
within the scope of N.C. Gen. Stat. §97-12.
See Prevette v. Clark Equipment Co., 62 N.C. App. 272, 275, 302
S.E.2d 639, 641 (1983) (“By virtue of G.S. 95-129(2) the [federal] prohibition
of employees riding on machinery such as the forklift involved here is a ‘statutory
requirement’ so as to bring this employee’s death within the purview of G.S.
97-12.” (footnote omitted)). Therefore,
if Kroger’s action in violating 29 C.F.R. 1910.22(b)(1) was willful, plaintiff
is entitled to a ten percent increase in compensation.
An act is considered willful “when there
exists ‘a deliberate purpose not to discharge some duty necessary to the safety
of the person or property of another,’ a duty assumed by contract or imposed by
law.” Beck v. Carolina Power &
Light Co., 57 N.C. App. 373, 383-84, 291 S.E.2d 897, 903 (quoting Brewer
v. Harris, 279 N.C. 288, 297, 182 S.E.2d 345, 350 (1971)), aff’d per
curium, 307 N.C. 267, 297 S.E.2d 397 (1982). In the instant case, defendants do not
challenge the intent or purpose of Kroger in stretching the extension cord
across the hallway. Instead, defendants
contend that Kroger did not willfully violate 29 C.F.R. 1910.22(b)(1) because
the statute does not “expressly prohibit stretching an extension cord across a
hallway.” In a similar contention,
defendants assert that N.C. Gen. Stat. §97-12 is unconstitutionally vague as
applied to the facts of this case, in that the statute fails to warn or notify
employers that stretching an extension cord across a hallway may result in a
ten percent increase in compensation.
However, defendants cite no authority for the contention that a violated
statute must expressly prohibit the precise action or inaction by the employer,
and we decline to create such a broad exception to N.C. Gen. Stat. §97-12.
“Statutes and
ordinances must be sufficiently precise; a ‘statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application violates
the first essential of due process of law.’” Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 128 N.C.
App. 703, 708, 496 S.E.2d 825, 828 (quoting Connally v. General Construction
Co., 269 U.S. 385, 391, 70 L. Ed. 322, 328 (1926)), disc. review denied
and appeal dismissed, 348 N.C. 496, 510 S.E.2d 382 (1998). “Ultimately, notice is the most important
criteria; a statute or ordinance will be found to violate due process if it
fails to give adequate notice to parties which might be affected by its
application.” Fantasy World, 128
N.C. App. at 708, 496 S.E.2d at 828 (citing Smith v. Goguen, 415 U.S.
566, 39 L. Ed. 2d 605 (1974)).
In the instant
case, as detailed above, N.C. Gen. Stat. §97-12 expressly allows a ten percent
increase in compensation where an employee’s injury “is caused by the willful
failure of the employer to comply with any statutory requirement or any lawful
order of the Commission[.]” N.C. Gen.
Stat. §95-131(a) adopts the federal occupational standards as “the rules of the
Commissioner of this State,” and both the state and federal regulations are
published and available to employers in order to erase uncertainty as to what
safety measures are required in the workplace.
N.C. Gen. Stat. §95-129(4) provides any employer the right to
participate in the development of the standards by commenting on developing
standards or requesting the development of them. In light of the foregoing, we conclude that defendants were put
on sufficient notice regarding the duties, consequences, and application of the
Workers’ Compensation Act and its relevant safety standards. Accordingly, we overrule defendants’ first
argument.[Note 1]
Defendants next
argue that the Full Commission erred by failing to rule on the propriety of
Deputy Commissioner Garner’s assessment of costs for the deposition of
Alston. Defendants assert that the Full
Commission was required to rule on the issue because defendants had assigned
error to it. We note that in her brief,
plaintiff expressly “abandons her request for costs associated with OSHA
investigator Jeanine Alston’s deposition.”
Therefore, we decline to address the merits of defendants’ argument, and
we remand the case to the Full Commission with instructions to amend its
opinion and award to strike the assessment of costs for Alston’s deposition.
Defendants next
argue that the Full Commission erred by deferring its ruling on plaintiff’s
entitlement to future benefits regarding her wage-earning capacity after 14
February 2002. Defendants assert that, due to the evidence presented by the
parties, the Full Commission was required to rule on the issue. We disagree.
According to
the Workers’ Compensation Act, the “[p]rocesses, procedure, and discovery” used
by the Industrial Commission in its hearings “shall be as summary and simple as
reasonably may be.” N.C. Gen. Stat.
§97-80(a) (2003). “Strictly speaking,
the rules of evidence applicable in our general courts do not govern the
Commission’s own administrative fact-finding.”
Haponski v. Constructor’s Inc., 87 N.C. App. 95, 97, 360 S.E.2d
109, 110 (1987) (citations omitted). In
the instant case, the Full Commission chose not to participate in “administrative
fact-finding” on the issue of plaintiff’s wage-earning capacity after 14
February 2002, citing the lack of evidence on the issue before it. Defendants contend that the Full Commission
had sufficient evidence before it to make a decision, and that the issue was
litigated by implication of the parties.
In support of this contention, defendants note that both parties
stipulated into evidence plaintiff’s post-hearing medical and wage records.
We recognize
that “[t]he Industrial Commission has an obligation to make specific findings
of fact and conclusions of law determining each issue which is raised by the
evidence and upon which plaintiff’s right to compensation depends.” Slatton v. Metro Air Conditioning,
117 N.C. App. 226, 231, 450 S.E.2d 550, 553 (1994). However, we also recognize that “[t]he Commission is not in a
position to make a proper award until the extent of disability or permanent
injury, if any, is determined.” Hall
v. Chevrolet Co., 263 N.C. 569, 575, 139 S.E.2d 857, 861 (1965) (holding
that “because of plaintiff’s lack of evidence at the hearing,” the plaintiff’s
permanent partial disability claim, of which he presented no evidence at the
original hearing, “has not been adjudicated.”). Furthermore, we note that “[t]he Workmen’s Compensation Act
should be construed liberally, so that its benefits are not denied upon
technical and narrow interpretation[,]” Conklin v. Freight Lines, 27
N.C. App. 260, 261, 218 S.E.2d 484, 485 (1975), and this Court has held that
the “same reasoning” which allows a claimant to reopen his case to present new
evidence “would certainly allow the Commission to keep the case open in order
to give [the] claimant another opportunity to gather the missing evidence
essential to the determination of the issue.”
Id. at 263, 218 S.E.2d at 486.
Under N.C. Gen.
Stat. §97-85 (2003), when an appeal of an opinion and award is taken, the Full
Commission is granted the authority to “review the award, and if good ground be
shown therefor, reconsider the evidence, receive further evidence, rehear the
parties or their representatives, and, if proper, amend the award[.]” “[W]hether ‘good ground be shown therefore’
in any particular case is a matter within the sound discretion of the
Commission, and the Commission’s determination in that regard will not be
reviewed on appeal absent a showing of manifest abuse of discretion.” Lynch v. Construction Co., 41 N.C.
App. 127, 131, 254 S.E.2d 236, 238 (holding that the Full Commission did not
exceed its authority by remanding case for further testimony regarding causal
connection of accident and injury), disc. review denied, 298 N.C. 298, 259
S.E.2d 914 (1979). In the instant case,
in its opinion and award, the Full Commission noted that although “Dr. Zorn
wrote plaintiff out of work for one month” twice following the 14 February 2002
hearing, Dr. Zorn “did not indicate
whether plaintiff’s incapacity for work was a result of her right knee injury,
her other conditions or some combination thereof[,]” and “the record contains
no indication that the surgery [on plaintiff’s left knee] was ever performed.” In light of the case and statutory law
detailed above, we conclude that the Full Commission did not abuse its
discretion by reserving its decision regarding the issue of plaintiff’s
wage-earning capacity after 14 February 2002.
The full extent of plaintiff’s injuries had not yet been determined, and
plaintiff was entitled to an opportunity to gather that information necessary
to determine which of her conditions was causing her continuing incapacity for
work. Accordingly, we overrule this
argument.
Defendants next
argue that the Full Commission erred by accepting plaintiff’s account of the 28
August 2001 fall. Defendants assert
that because Deputy Commissioner Garner was the only Commission representative
to observe plaintiff’s testimony regarding the fall, the Full Commission was
bound by Deputy Commissioner Garner’s determinations regarding the credibility
of plaintiff’s testimony. We disagree.
In Adams v.
AVX Corp., our Supreme Court addressed a similar argument and determined
that “[w]hether the [F]ull Commission conducts a hearing or reviews a cold
record, N.C.G.S. §97-85 places the ultimate fact-finding function with the
[Full] Commission -- not the hearing officer.
It is the [Full] Commission that ultimately determines credibility,
whether from a cold record or from live testimony.” 349 N.C. 676, 681, 509 S.E.2d 411, 413 (1998). In an attempt to distinguish Adams
from the instant case, defendants correctly assert that in Adams, the
deputy commissioner rejected as incredible the claimant’s testimony regarding
the consequences of her alleged accident, while in the instant case, Deputy
Commissioner Garner rejected as incredible plaintiff’s testimony regarding the
cause of her accident. However, we are
not persuaded that Adams should be read so narrowly as to prevent the
Full Commission from reassessing the evidence before it on appeal merely
because the evidence concerns the cause of the alleged accident rather than its
consequences. Instead, we conclude
that, under the Court’s holding in Adams, the Full Commission is
entitled to reverse a deputy commissioner’s determination of credibility, even
if that reversal is based upon an examination of the “cold record” rather than “live
testimony.” Id.
Furthermore, we
also disagree with defendants’ contention that in cases in which observation of
the claimant’s actual physical behavior is a “crucial issue,” the Full
Commission should acknowledge the hearing officer’s credibility findings and
offer a full explanation if it substitutes a different judgment for those
findings. Our Supreme Court expressly
rejected such a contention in Adams, holding that “in reversing the
deputy commissioner’s credibility findings, the [F]ull Commission is not
required to demonstrate, as Sanders states, ‘that sufficient
consideration was paid to the fact that credibility may be best judged by a
first-hand observer of the witness when that observation was the only one.’” Id. (overruling Sanders v.
Broyhill Furniture Industries, 124 N.C. App. 637, 641, 478 S.E.2d 223, 226
(1996), disc. review denied, 346 N.C. 180, 486 S.E.2d 208 (1997)). In light of Adams, we are not
persuaded that the Full Commission was required to make those findings
suggested by defendants in the instant case.
Therefore, we conclude the Full Commission did not err by reassessing
the evidence and finding that plaintiff’s 28 August 2001 fall was a direct and
natural result of the 9 June 2001 fall and injury. Accordingly, this argument is overruled.
Defendants’
final argument is that the Full Commission erred by failing to define the time
limit of plaintiff’s award for medical treatment. Defendants assert that N.C. Gen. Stat. §97-25.1 requires that the
Full Commission specify the period in which defendants must compensate
plaintiff for her medical payments.
N.C. Gen. Stat.
§97-25.1 (2003) provides that
[t]he right to
medical compensation shall terminate two years after the employer’s last payment of medical or indemnity
compensation unless, prior to the expiration of this period, either: (i) the
employee files with the Commission an application for additional medical
compensation which is thereafter approved by the Commission, or (ii) the
Commission on its own motion orders additional medical compensation. If the
Commission determines that there is a substantial risk of the necessity of
future medical compensation, the Commission shall provide by order for payment
of future necessary medical compensation.
In the instant
case, the Full Commission ordered defendants to “pay for medical compensation
incurred by plaintiff as a result of the injuries she sustained when she fell
at work on June 9, 2001 and the subsequent fall of August 28, 2001.” This award was based upon the Full
Commission’s prior conclusion of law, in which the Full Commission cited N.C.
Gen. Stat. §§97-25 and 97-25.1. We
conclude that the period of limitations provided by N.C. Gen. Stat. §97-25.1 is
inherent in the Full Commission’s award.
Accordingly, this argument is overruled.
In light of foregoing conclusions, we affirm the Full Commission’s opinion and award in part, and we remand in part.
Affirmed in
part; remanded in part.
Judges BRYANT
and LEVINSON concur.
NOTE
1. We recognize that, to date, the
Occupational Safety and Health Review Commission has interpreted 29 C.F.R.
1910.22(b)(1) to apply only to those obstructions occurring in areas where “mechanical
handling equipment” is operated. See
Sec’y of Labor v. Joel Patterson Air Conditioning Recycling, 19 O.S.H. Cas.
(BNA) 2045, 2002 OSAHRC LEXIS 53, 13-14 (2002). However, we note that our Courts have not yet addressed this
issue, and, in the instant case, defendants do not contest the applicability of
the statute on the ground that mechanical handling equipment was not used in
the area in which plaintiff fell.
Therefore, we make no decision regarding the applicability of 29 C.F.R.
1910.22(b)(1) to those work areas where mechanical handling equipment is not
operated.