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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. COA04-1428
NORTH CAROLINA
COURT OF APPEALS
Filed: 20 September 2005
JOYCE
BROWN MCGHEE,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 162636
BANK OF AMERICA CORPORATION,
Employer,
EBI/ROYAL
AND SUNALLIANCE
INSURANCE
CO.,
Carrier,
Defendants.
Appeal by
defendants from opinion and award entered 16 June 2004 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 12 May 2005.
Fred D. Smith,
Jr., for plaintiff appellee.
Wilson &
Ratledge, PLLC, by Maura K. Gavigan and Kristine L. Prati, for defendant
appellants.
McCULLOUGH,
Judge.
Defendants
appeal from an opinion and award of the North Carolina Industrial Commission
(“the Commission”) awarding plaintiff total disability compensation, medical
expenses, and attorneys’ fees.
Defendants argue that plaintiff’s claim was not timely filed, and that
the Commission therefore lacked jurisdiction to hear the claim. Defendants further contend the Commission
erred in concluding that plaintiff is totally disabled, and erred in awarding
her medical expenses and attorneys’ fees.
We affirm the opinion and award of the Commission.
The facts of
the instant case, as found by the Commission, are as follows: plaintiff was
employed as an assistant vice-president in marketing and training by defendant
Bank of America (“BOA”), where she had worked for nearly eighteen years. BOA’s home office was located in Charlotte,
North Carolina; however, plaintiff’s place of employment was Richmond,
Virginia, where she resided.
On 1 August
1998, plaintiff was returning to Richmond from a business trip to Florida. Plaintiff’s manager had instructed her to
drive her personal vehicle home and then fly back to Florida at defendants’
expense. While driving from Florida to
Richmond on 1 August, plaintiff sustained injuries to her head, neck, left
shoulder, and ribs when her vehicle was “T-boned” with considerable force by
another vehicle in Wilmington, North Carolina.
Plaintiff received emergency care in Wilmington, where she was diagnosed
with a head injury and multiple acute strain secondary to the motor vehicle
accident. When she returned to
Richmond, plaintiff continued to receive medical care over the next two years
for a variety of conditions arising from the accident, including cerebral
concussion with persistent post-concussive disorder, cervical whiplash,
cognitive defects, attention problems, persistent chronic pain, a blind spot in
her left eye, and neurosensory hearing loss in the left ear.
Between 1
August 1998 and 14 August 2000, plaintiff received either her full salary or
short-term disability payments from defendants. While plaintiff received short-term disability she was not
working. During the weeks plaintiff
received her full salary, she worked between three to six hours per day
performing menial, “make work” tasks.
The Commission found, and defendants have excepted, that these tasks did
not constitute “other employment” pursuant to section 97-2(9) of the General
Statutes.
On 5 September
2000, plaintiff attempted full-time employment at National Catalog in
Martinsville, Virginia. Due to her
chronic headaches, however, plaintiff was unable to perform her job duties, and
National Catalog terminated her employment on 7 November 2000. Plaintiff received unemployment compensation
benefits from the Virginia Employment Security Commission between 27 November 2000
and 15 May 2001 as a result of her termination by National Catalog.
Following her
move to Martinsville, Virginia, plaintiff continued to receive medical care for
a variety of conditions arising from her 1 August 1998 injury, including
chronic pain, major depression, post-traumatic stress disorder, and cognitive
defects. Two of plaintiff’s treating
physicians testified that plaintiff remains incapable of employment.
Upon
presentation of the evidence, the Commission found and concluded that plaintiff
was totally disabled and entered an award granting her total disability
compensation, medical expenses, and attorneys’ fees. From the opinion and award of the Commission, defendants appeal.
_______________________________________________________
Defendants argue
the Industrial Commission erred by (1) concluding that plaintiff’s claim was
timely filed; (2) concluding that plaintiff is totally disabled; (3) finding
that the part-time position offered to plaintiff did not constitute “other
employment” as defined in section 97-2(9) of the General Statutes; (4) ordering
defendants to pay for medical treatment for plaintiff; and (5) awarding
plaintiff attorneys’ fees. For the
reasons stated herein, we affirm the opinion and award of the Commission.
By their first assignment
of error, defendants contend the Commission erred in finding and concluding
that plaintiff’s claim was timely filed.
Defendants correctly note that, pursuant to section 97-24 of our General
Statutes, the right to workers’ compensation for an injury by accident claim is
“forever barred” unless the claimant files a claim with the Industrial
Commission either (1) within two years of the accident or (2) “within two years
after the last payment of medical compensation when no other compensation has been
paid and when the employer’s liability has not otherwise been
established.” N.C. Gen. Stat. §97-24
(2003). Defendants argue that plaintiff
neither filed her claim within two years of the accident, nor within two years
after the last payment of medical compensation by defendants. We disagree.
Plaintiff’s
accident occurred on 1 August 1998.
Plaintiff filed a Form 18 Notice of Accident with the North Carolina
Industrial Commission on 9 August 2001.
Thus, she did not file her claim within two years of the accident. However, the Commission found that
defendants last paid medical compensation for plaintiff’s compensable injuries
in August of 2000. Plaintiff therefore
filed her claim within the two-year period following the last payment of
medical compensation by defendants. At
that time, defendants had paid no other compensation pursuant to the Workers’
Compensation Act, nor had their liability been otherwise established. Plaintiff’s claim was thus timely
filed. See N.C. Gen. Stat.
§97-24.
Defendants assign
error to the Commission’s finding that they last paid medical compensation for
plaintiff’s injuries in August of 2000.
Defendants argue that the payment at issue, $72,554.38 paid to medical
providers in Virginia, does not meet the statutory definition of “medical
compensation” under section 97-2(19) of the North Carolina General Statutes,
because when defendants made the payment, they presumed that plaintiff would be
filing a workers’ compensation claim in Virginia, rather than North Carolina. We find no merit to defendants’ argument.
Section
97-2(19) of the North Carolina General Statutes defines medical compensation as
medical,
surgical, hospital, nursing, and rehabilitative services, and medicines, sick
travel, and other treatment, including medical and surgical supplies, as may
reasonably be required to effect a cure or give relief and for such additional
time as, in the judgment of the Commission, will tend to lessen the period of
disability; and any original artificial members as may reasonably be necessary
at the end of the healing period and the replacement of such artificial members
when reasonably necessitated by ordinary use or medical circumstances.
N.C. Gen. Stat.
§97-2(19) (2003). Nothing in the
definition limits the geographical locale of the medical treatment to North
Carolina, nor does the definition create exceptions based upon an employer’s
“impression” of a “presumed claim” in a foreign jurisdiction.
In their answers to plaintiff’s second
interrogatories, defendants responded to the following question: “Did
[defendants] pay for either medical, surgical, hospital, nursing,
rehabilitative services, or medicine for injuries sustained by [plaintiff] on
August 1, 1998?” Defendants responded
“Yes.” Defendants also affirmed that
they had made such payments through August of 2000. Thus, by their own admission, defendants paid medical
compensation to plaintiff in August of 2000.
The Commission did not err in finding that defendants last paid medical
compensation to plaintiff in August of 2000.
Defendants
argue that plaintiff received “other compensation” in the form of short-term
disability benefits such that the provisions of section 97-24 are
inapplicable. We disagree. “Compensation” under the Workers’
Compensation Act means “the money allowance payable to an employee or to his
dependents as provided for in this Article, and includes funeral
benefits provided herein.” N.C. Gen.
Stat. §97-2(11) (2003) (emphasis added).
Defendants concede that the short-term disability benefits paid to
plaintiff were in lieu of workers’ compensation benefits and not made payable
to plaintiff pursuant to the Workers’ Compensation Act. The short-term disability benefits therefore
do not qualify as “other compensation” under section 97-24 of the General
Statutes. We overrule defendants’
assignment of error.
Defendants next
contend the Commission erred in concluding that plaintiff is totally
disabled. Defendants argue plaintiff
failed to produce evidence that she is incapable of work in any employment. Defendants’ argument has no merit.
The Commission
made numerous findings detailing plaintiff’s medical history and her
incapability for employment. Defendants
failed to assign error to these findings and they are therefore binding upon
appeal. For example, the Commission
found that, due to her 1 August 1998 head trauma, plaintiff
suffers
impairments for attention, recall, perception, construction in the visual
channel, mild impairments for short-term memory, below average visual delayed
memory, striking impairments on visual spatial construction, and markedly
deteriorated intellectual functioning from pre-morbid functioning due to her
reductions in both verbal and non-verbal functioning.
Two of
plaintiff’s treating physicians testified that she was “incapable of sustaining
competitive employment” and was “totally disabled.”
The findings of
fact by the Industrial Commission are conclusive on appeal if supported by any
competent evidence. Adams v. AVX
Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413 (1998). “Thus, on appeal, this 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.’” Id. (quoting Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). In the present case, the Commission based
its finding that plaintiff was totally disabled on substantial competent
evidence of record. We overrule this
assignment of error.
By further
assignment of error, defendants contend the Commission erred in finding that
the part-time position offered to plaintiff did not constitute “other
employment” as defined by section 97-2(9) of the General Statutes. Defendants argue plaintiff offered
insufficient evidence that her part-time employment was not generally available
on the market. Defendants also contend
the Commission “applied a standard that was not considered since plaintiff was
working in Virginia and presumably pursuing a claim in Virginia.”
Defendants’
presumptions aside, plaintiff offered substantial evidence that the position
offered to her upon her return was “make work” rather than “other
employment.” Plaintiff testified when
she returned to BOA on a part-time basis, her work consisted of
help[ing] . . .
make copies, sort the copies. I would
go to, maybe, the copying company and pick up copies for them and have them
made. I’d either, maybe, do their
supplies, make sure they had their supplies, and most of the time I did --
played games on the computer from the time -- from the time that I got
there. Usually, maybe they would let me
work, maybe, just two hours sorting stuff or whatever, and the rest of the time
I was just playing games on the computer.
This evidence
supports the Commission’s finding that plaintiff’s part-time position was
“make-work.” We overrule this
assignment of error.
Defendants
further argue the Commission erred in ordering defendants to pay for
plaintiff’s medical care after August of 2000.
Defendants assert that the evidence tended to show that the medical care
provided to plaintiff was ineffective in lessening her disability or providing
relief. Defendants point to such
notations by plaintiff’s physicians that plaintiff “continues to have pain” and
“still having increased anxiety and problems sleeping” as proof that the
medical care was ineffective.
Defendants argue the Commission thus erred in concluding that the
medical care provided to plaintiff since August of 2000 was “reasonably necessary
to effect a cure and provide relief to plaintiff.” We disagree.
Apparently,
defendants believe that if a particular medication or treatment does not
produce the precise desired result, an employer should not be responsible for
payment of any of an injured worker’s medical care for chronic pain arising
from a compensable injury. There was
substantial evidence of record that plaintiff’s medical care was necessary to
provide her with relief. We overrule
this assignment of error.
Finally,
defendants argue the Commission erred in awarding attorneys’ fees to
plaintiff. The decision of whether to
award attorneys’ fees, however, is within the sound discretion of the
Industrial Commission. Taylor v.
J.P. Stevens Co., 307 N.C. 392, 397, 298 S.E.2d 681, 683 (1983). Defendants fail to demonstrate on what basis
the Commission abused its discretion in awarding attorneys’ fees, and we
likewise have discerned none.
The opinion and
award of the Industrial Commission is affirmed.
Affirmed.
Judges
TIMMONS-GOODSON and STEELMAN concur.