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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.
COA07-1265
NORTH
CAROLINA COURT OF APPEALS
Filed: 19
August 2008
ANDREA
GREGORY,
Employee,
Plaintiff-Appellee,
v.
North Carolina Industrial Commission
I.C. File No. 209462
W.A. BROWN
& SONS,
Employer,
PMA INSURANCE
GROUP,
Carrier,
Defendants-Appellants.
Appeal by
Defendants from opinion and award entered 11 May 2007 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 16 April 2008.
DeVore,
Acton, & Stafford, P.A., by William D. Acton, Jr., for
Plaintiff-Appellee.
Hedrick,
Gardner, Kincheloe & Garofalo, L.L.P., by Neil P. Andrews and Jennifer P.
Pulley, for Defendants-Appellants.
McGEE,
Judge.
Andrea
Gregory (Plaintiff) filed a Form 18 on 5 February 2002 claiming benefits for a
back injury allegedly caused by a specific traumatic incident that occurred
while Plaintiff was working for W.A. Brown & Sons (Defendant-Employer). Defendant-Employer and its carrier, PMA
Insurance Group (collectively Defendants), denied Plaintiff’s claim, and
Plaintiff requested that her claim be assigned for
hearing.
Deputy
Commissioner Morgan S. Chapman (Deputy Commissioner Chapman) held a hearing on
16 September 2003. One of
Plaintiff’s lay witnesses, Tony Harding (Mr. Harding), did not appear for the
hearing, and Plaintiff testified that she had personally delivered a subpoena to
Mr. Harding in advance of the hearing.
At the close of the hearing, Plaintiff “moved that she be allowed to
depose [Mr.] Harding who did not appear for the hearing to testify.” The parties also requested additional
time to depose necessary medical witnesses. Deputy Commissioner Chapman entered an
order on 10 October 2003 allowing Plaintiff sixty days to depose Mr. Harding at
Plaintiff’s expense and thirty additional days in which to submit Mr. Harding’s
deposition transcript. Deputy
Commissioner Chapman also allowed the parties sixty days to depose necessary
medical witnesses at Defendants’ expense and thirty additional days to submit
their depositions.
Deputy
Commissioner Chapman entered an opinion and award on 28 April 2004 denying
Plaintiff’s claim for benefits.
Deputy Commissioner Chapman concluded that Plaintiff had sustained an
injury by accident arising out of and in the course of her employment with
Defendant-Employer on an unknown date during the week of 11 October 2001. However, Deputy Commissioner Chapman
also concluded that Plaintiff’s claim was barred because Plaintiff failed to
give Defendant-Employer written notice of the injury within thirty
days.
Plaintiff and
Defendants appealed to the North Carolina Industrial Commission (the
Commission), and the Commission filed an opinion and award on 18 January 2005
(2005 opinion and award) reversing Deputy Commissioner Chapman’s opinion and
award. The Commission concluded
that “[o]n an unknown date during the week of October 11, 2001, [P]laintiff
sustained an injury by accident arising out of and in the course of her
employment with [D]efendant[-Employer] in that she sustained a back injury as
the result of a specific traumatic incident of the work assigned.” The Commission also concluded that
“[t]he aggravation or exacerbation of [P]laintiff’s pre-existing back condition
as a result of a specific traumatic incident, which has resulted in loss of wage
earning capacity, is compensable under the Workers’ Compensation Act.” The Commission further concluded that
Defendants had actual notice of Plaintiff’s work-related injury. The Commission concluded that even if
Defendants did not have actual notice, “[P]laintiff’s failure to give written
notice within thirty days [was] reasonably excused because [P]laintiff did not
reasonably know of the nature, seriousness, or probable compensable character of
her injury until after extensive treatment with Dr. Roy, her treating
physician.” The Commission remanded
the matter for assignment to a deputy commissioner “for the taking of additional
evidence or further hearing, if necessary, and the entry of an Opinion and Award
with findings on the issues of (1) the extent of [P]laintiff’s disability; (2)
the amount of indemnity benefits due [P]laintiff; and (3) the extent of medical
compensation due [P]laintiff.”
Defendants
appealed to our Court, and Plaintiff filed a motion to dismiss Defendants’
appeal on the grounds that Defendants’ appeal was interlocutory and did not
affect a substantial right. We
entered an order on 3 June 2005 dismissing Defendants’
appeal.
On remand of
the Commission’s 2005 opinion and award, Deputy Commissioner John B. Deluca
(Deputy Commissioner Deluca) filed an opinion and award on 4 May 2006. Defendants appealed, and the Commission
filed an opinion and award on 11 May 2007 (2007 opinion and award), adopting
Deputy Commissioner Deluca’s opinion and award “except with regard to the issue
of the causal relationship of [P]laintiff’s leg and hip pain to the compensable
injury and the issue of ongoing disability.” The Commission made numerous findings of
fact, including a finding that the Commission’s 2005 opinion and award “is
incorporated by reference as if fully set forth herein.” The Commission concluded that “[o]n or
about October 10, 2001, [P]laintiff sustained a compensable injury as the result
of a specific traumatic incident that aggravated her pre-existing back
condition.” However, the Commission
concluded that Plaintiff had “failed to carry the burden of proving by competent
evidence that a causal relationship existed between the work-related accident
and her left leg and hip pain.” The
Commission concluded that as a result of her compensable specific traumatic
incident, Plaintiff was totally disabled from 16 October 2001 until 31 May 2005,
and also concluded that Plaintiff was entitled to receive disability
compensation for that period of time.
The Commission concluded that Defendants were not entitled to a credit
for short-term and long-term disability payments received by Plaintiff and
further concluded that “Defendants are required to provide [P]laintiff with
reasonably necessary medical treatment related to her compensable back injury by
accident that tends to effect a cure, provide relief, or lessen the period of
disability.” In its award, the
Commission stated as follows: “In that the record contains insufficient evidence
concerning the extent of [P]laintiff’s disability, if any, after May 31, 2005,
this issue is RESERVED for future determination.” Defendants appeal.
_______________________________
Our review of
an opinion and award by the Commission is limited to two inquiries: (1) whether
there is any competent evidence in the record to support the Commission’s
findings of fact; and (2) whether the Commission’s conclusions of law are
justified by the findings of fact.
Counts v. Black & Decker Corp., 121 N.C. App. 387, 389, 465
S.E.2d 343, 345, disc. review denied, 343 N.C. 305, 471 S.E.2d 68
(1996). If supported by competent
evidence, the Commission’s findings are conclusive even if the evidence might
also have supported contrary findings.
Jones v. Candler Mobile Village, 118 N.C. App. 719, 721, 457 S.E.2d
315, 317 (1995). We review the
Commission’s conclusions of law de novo. Johnson v. Herbie’s Place, 157
N.C. App. 168, 171, 579 S.E.2d 110, 113, disc. review denied, 357 N.C.
460, 585 S.E.2d 760 (2003).
I.
Defendants
first argue the Commission erred by concluding that Plaintiff sustained a
specific traumatic incident on some unknown date during the week of 11 October
2001 or on or about 10 October 2001.
Specifically, Defendants argue that these conclusions “are not supported
by the competent evidence regarding when Plaintiff’s alleged lifting incident
occurred.” Defendants contend that
Plaintiff “claims she was picking up a bucket of pods and felt pain in her lower
back [on 11 October 2001]” and that “Plaintiff has never wavered in the
identification of October 11, 2001, as the specific date she claims to have been
injured at work.” However,
Defendants point to the Commission’s finding in the 2005 opinion and award that
“[Plaintiff’s] time records show she did not work that particular morning.” Defendants also argue that the
Commission’s conclusions are premised upon a misapprehension of law. Specifically, Defendants argue that “the
caselaw does not permit the Commission to create a date of injury or to
substitute its own findings when the evidence is
insufficient.”
In its 2005
opinion and award, the Commission found as follows: “Plaintiff alleges that she
was injured on October 11, 2001, after her morning break; however, her time
records show she did not work that particular morning. Nonetheless, the Full Commission finds
that [P]laintiff did suffer an injury on an unknown date that same week.” In its 2007 opinion and award, the
Commission found that “Plaintiff sustained a back injury as a result of a
specific traumatic incident on or about October 10, 2001.”
These
findings of fact are supported by competent evidence. Plaintiff testified that when she tried
to pick up a bucket of metal pods weighing sixty to seventy pounds, she “felt a
pop” in the lower part of her back.
Plaintiff testified that this occurred some time between 9:40 a.m. and
12:00 p.m. on Thursday, 11 October 2001.
Plaintiff also testified that at the time of the incident, she was
working with Mr. Harding, and that Mr. Harding came over to her and “asked what
was wrong.” Plaintiff testified
that Mr. Harding called over Rick Dunaway (Mr. Dunaway) and that Mr. Dunaway
went to get Plaintiff’s supervisor, Barry Christy (Mr. Christy). Plaintiff also testified that Mr.
Christy gave her a back brace.
Plaintiff
further testified that she went to ProMed, a medical clinic, on Sunday, 14
October 2001, complaining of back pain.
Plaintiff’s testimony is corroborated by a ProMed medical report stating
that Plaintiff was treated for low back pain on 14 October 2001. Plaintiff testified that she was unable
to work on Monday, 15 October 2001 due to her back pain, and that she went to
work on Tuesday, 16 October 2001, but that she only worked until 11:00 a.m. or
12:00 p.m. Specifically, Plaintiff
testified that on Tuesday, 16 October 2001, Mr. Christy told Plaintiff that she
should go home due to “the way [Plaintiff] was walking.” Plaintiff further testified that Pam
Cordts (Ms. Cordts) in Defendant-Employer’s human resources department also told
Plaintiff “that they [were] needing to get [her] out of Brown because of the way
[she] was walking.” Plaintiff
testified that she left work on Tuesday, 16 October 2001, and that since then,
she has not been able to return to work.
Mr. Harding
testified that he was working with Plaintiff when she injured her back lifting a
bucket of metal pods. Although Mr.
Harding could not state with certainty whether he worked with Plaintiff on 11
October 2001, he did testify as to a previous statement that he had written, in
which he stated:
On 10/11/2001
[Plaintiff] and I were working on our jobs as process technicians. [Plaintiff] was my work partner on this
day. When [Plaintiff] picked up a
crate of metal pods, I noticed that her facial expression dramatically changed
as if she had just felt pain.
[Plaintiff] put the crate down and said her back was hurting. She then went and advised our team
leader, [Mr.] Dunaway.
Mr. Harding
testified that this statement was true and accurate.
Defendants argue that Plaintiff’s time records show that she arrived at work on 11 October 2001 at 6:59 a.m., punched out at 8:31 a.m., and did not return to work until 12:05 p.m. Therefore, Defendants contend that Plaintiff was not at work at the time she claimed the incident occurred. However, Plaintiff’s testimony that the incident occurred on 11 October 2001, coupled with the evidence that she sought medical treatment on 14 October 2001 and could not work on 15 October 2001 or after 16 October 2001, establishes that the specific traumatic incident occurred on or about 10 October 2001 or on some unknown date during the week of 11 October 2001. Therefore, the Commission’s findings of fact are supported by competent evidence and the Commission’s findings of fact support the challenged conclusions of law.
Moreover, the
Commission did not enter its conclusions of law under a misapprehension of the
law. The Workers’ Compensation Act
provides:
With respect
to back injuries, . . . where injury to the back arises out of and in
the course of the employment and is the direct result of a specific traumatic
incident of the work assigned, “injury by accident” shall be construed to
include any disabling physical injury to the back arising out of and causally
related to such incident.
N.C. Gen.
Stat. §97-2(6) (2007). “While the
case law interpreting the specific traumatic incident provision of N.C. Gen.
Stat. §97-2(6) requires the plaintiff to prove an injury at a cognizable time,
this does not compel the plaintiff to allege the specific hour or day of the
injury.” Fish v. Steelcase,
Inc., 116 N.C. App. 703, 708, 449 S.E.2d 233, 237 (1994), cert.
denied, 339 N.C. 737, 454 S.E.2d 650 (1995). Rather, “[e]vents which occur
contemporaneously, during a cognizable time period, and which cause a back
injury, fit the definition intended by the legislature.” Id.
In
Fish, our Court held that the Commission erred by determining that the
plaintiff’s injury did not occur at a judicially cognizable time. Id. at 709, 449 S.E.2d at
237. The findings established that
the plaintiff identified mid-April 1989 as the time frame in which the injury
occurred. Id. at 709, 449
S.E.2d at 237-38. The findings also
established that the incident occurred at some time between 8 April and 1 May
1989. Id. at 709, 449 S.E.2d
at 238. Our Court held: “Even
though there are a variety of possible dates for the specific traumatic
incident, the plaintiff’s evidence, if believed, satisfies the judicially
cognizable time requirement.”
Id. Our Court held
that the plaintiff had satisfied this requirement even though the plaintiff
identified 17 April 1989 as the specific date on which the injury occurred, and
the Commission found this claim not credible. Id. Our Court held:
This finding
is simply a misunderstanding of the burden the plaintiff must meet to prove a
back injury. Judicially
cognizable does not mean “ascertainable on an exact date.” Instead, the term should be read to
describe a showing by [the] plaintiff which enables the Industrial Commission to
determine when, within a reasonable period, the specific injury occurred. The evidence must show that there was
some event that caused the injury, not a gradual deterioration. If the window during which the injury
occurred can be narrowed to a judicially cognizable period, then the statute is
satisfied.
Id.
In the
present case, as in Fish, Plaintiff identified a particular date on which
the incident occurred. However, as
demonstrated by the Commission’s finding in the present case, “[Plaintiff’s]
time records show she did not work that particular morning.” Therefore, as in Fish,
Plaintiff’s identification of that specific time period is not credible. Nevertheless, Plaintiff’s testimony,
along with other evidence, placed the specific traumatic incident within a
judicially cognizable time period.
Plaintiff’s testimony as to the date of the incident, which was
corroborated by Mr. Harding’s testimony, as well as Plaintiff’s testimony that
she sought treatment on 14 October 2001 and could not work on 15 October 2001 or
after 16 October 2001, establishes that the specific traumatic incident occurred
at a judicially cognizable time.
Accordingly, we hold the Commission did not err.
In their
reply brief, Defendants state that the Court of Appeals “has previously declined
to follow Fish where the plaintiff was able to identify the actual date
of the injury.” In support of this
proposition, Defendants cite Rogers v. Smoky Mountain Petroleum Co., 172
N.C. App. 521, 617 S.E.2d 292 (2005).
However, Rogers is inapposite. Even though the actual date of the
alleged injury was not at issue in Rogers, our Court held that there was
insufficient competent evidence regarding the cause of the plaintiff’s alleged
back injury. Id. at 528-29,
617 S.E.2d at 297. Therefore, we
held that the plaintiff failed to prove he sustained a work-related injury to
his back. Id. In contrast, and for the reasons that
follow, Plaintiff in the present case presented sufficient evidence that her
back injury was caused by a specific traumatic incident at
work.
Defendants
argue that Plaintiff failed to prove that the specific traumatic incident caused
a compensable aggravation of her pre-existing back condition. Specifically, Defendants argue that
Plaintiff’s medical records establish that she “had at least a six month history
of back pain when she sought treatment on October 14, 2001.” However, on appeal of an opinion and
award of the Commission, our review is limited to a determination of whether the
Commission’s findings of fact are supported by competent evidence, even if the
evidence would have supported contrary findings. Jones, 118 N.C. App. at 721, 457
S.E.2d at 317. We then determine
whether the findings of fact support the conclusions of law, and whether the
conclusions of law are correct.
Counts, 121 N.C. App. at 389, 465 S.E.2d at
345.
In the case
before us, Plaintiff’s treating neurosurgeon, Dr. Ranjan Roy (Dr. Roy),
testified that Plaintiff’s work-related incident during the week of 11 October
2001 more likely than not exacerbated Plaintiff’s pre-existing back
condition. This evidence supports
the Commission’s finding that “[a]s a result of this specific traumatic
incident, [Plaintiff] sustained an injury to her back that aggravated her
preexisting degenerative condition.”
This finding, in turn, supports the Commission’s conclusions that
“[P]laintiff sustained an injury by accident arising out of and in the course of
her employment with [D]efendant[-Employer] in that she sustained a back injury
as the result of a specific traumatic incident of the work assigned” and that
“[t]he aggravation or exacerbation of [P]laintiff’s pre-existing back condition
as a result of a specific traumatic incident, which has resulted in loss of wage
earning capacity, is compensable under the Workers’ Compensation Act.” We overrule these assignments of
error.
II.
Defendants
also argue that the Commission “rendered improper conclusions regarding
Plaintiff’s disability as a result of the lifting incident.” Specifically, Defendants contend that
“[a]s discussed above, no testimony was presented to support a finding that the
described lifting incident occurred on any day during the week of October 11,
2001.” In essence, Defendants make
the same argument they made in Section I.
For the same reasons, we overrule these assignments of
error.
Defendants
also argue that “there is no evidentiary support for the Commission’s decision
to reserve the issue of Plaintiff’s continued disability beyond March 31,
2005.” However, Defendants do not
cite any legal authority in support of this argument, and we thus deem it
abandoned. See N.C.R. App.
P. 28(b)(6) (stating that “[a]ssignments of error . . . in support of
which no reason or argument is stated or authority cited, will be taken as
abandoned”).
III.
Defendants
argue the Commission erred by concluding that Plaintiff satisfied the
requirements of N.C. Gen. Stat. §97-22, which provides:
Every injured
employee or his representative shall immediately on the occurrence of an
accident, or as soon thereafter as practicable, give or cause to be given to the
employer a written notice of the accident, and the employee shall not be
entitled to physician’s fees nor to any compensation which may have accrued
under the terms of this Article prior to the giving of such notice, unless it
can be shown that the employer, his agent or representative, had knowledge of
the accident, or that the party required to give such notice had been prevented
from doing so by reason of physical or mental incapacity, or the fraud or deceit
of some third person; but no compensation shall be payable unless such written
notice is given within 30 days after the occurrence of the accident or death,
unless reasonable excuse is made to the satisfaction of the Industrial
Commission for not giving such notice and the Commission is satisfied that the
employer has not been prejudiced thereby.
N.C. Gen.
Stat. §97-22 (2007). Our Court has
held that the “[f]ailure of an employee to provide written notice of her injury
will not bar her claim where the employer has actual knowledge of her
injury.” Lakey v. U.S. Airways,
Inc., 155 N.C. App. 169, 172, 573 S.E.2d 703, 706 (2002), disc. review
denied, 357 N.C. 251, 582 S.E.2d 271 (2003).
In the case
before us, the Commission concluded as follows:
Defendants
had actual notice of [P]laintiff’s work-related injury, and resulting workers’
compensation claim, (1) when [P]laintiff immediately reported her injury to her
team leader, (2) when [P]laintiff’s supervisor gave her a back support brace so
that she could continue working; and (3) when her supervisor sent her to human
resources to discuss her injury.
This conclusion is supported by several findings of fact. In finding of fact number five, the Commission found that after the incident at work, “Plaintiff immediately left her workstation to inform [Mr.] Dunaway, the team leader, about her injury. Plaintiff’s statement that she reported the injury to [Mr.] Dunaway, as corroborated by [Mr.] Harding, is credible.” Similarly, in finding of fact number nineteen, the Commission found that “[a]s soon as the injury occurred, [P]laintiff left her work position to report the incident to her team leader, [Mr.] Dunaway, which is corroborated by her work partner, [Mr.] Harding.”
These
findings are supported by Plaintiff’s testimony that after the incident, Mr.
Harding came over to her and asked her what was wrong. Plaintiff then testified that Mr.
Harding called over Mr. Dunaway and that Plaintiff told Mr. Dunaway that “[her]
back had [gone] out. It
popped.” Mr. Harding corroborated
Plaintiff’s testimony by stating that after the incident, “[Plaintiff] then went
and advised our team leader, [Mr.] Dunaway.”
The
Commission also found that “[Mr.] Dunaway reported the incident to [P]laintiff’s
supervisor, [Mr.] Christy, who subsequently gave [P]laintiff a back support
belt.” This finding is supported by
Plaintiff’s testimony that after she reported the incident to Mr. Dunaway, Mr.
Dunaway went to find Plaintiff’s supervisor, Mr. Christy. Plaintiff testified that she went to Mr.
Christy’s office and that Mr. Christy gave her a back
brace.
The
Commission also found that “[Plaintiff] reported for work on Tuesday but was so
visibly impaired by pain that [Mr.] Christy referred [Plaintiff] to [Ms.] Cordts
in human resources, which is corroborated by [Mr.] Christy’s testimony.” This finding is supported by Plaintiff’s
testimony that Mr. Christy told Plaintiff that she should go home on Tuesday, 16
October 2001, due to “the way [Plaintiff] was walking.” Plaintiff testified that after she left
Mr. Christy’s office, “they carried [her] to [Ms.] Cordts[‘] office” in human
resources and Ms. Cordts also told Plaintiff “that they [were] needing to get
[her] out of Brown because of the way [she] was walking.”
We hold that
these findings of fact, which are supported by competent evidence, support the
Commission’s conclusion of law that Defendant-Employer had actual knowledge of
Plaintiff’s injury. In light of
this actual knowledge, we also hold that Defendant-Employer was not prejudiced
by Plaintiff’s failure to provide written notice of her injury within thirty
days. See Chilton v. School of
Medicine, 45 N.C. App. 13, 18, 262 S.E.2d 347, 350 (1980). We thus overrule these assignments of
error.
IV.
Defendants
also argue that “the competent evidence does not support the . . .
Commission’s award of medical compensation to Plaintiff.” Specifically, Defendants argue that the
Commission erred by failing to find or conclude that there was a substantial
risk of the necessity of future medical compensation.
Defendants
have failed to cite authority in support of this argument, and we thus deem it
abandoned. See N.C.R. App.
P. 28(b)(6) (stating that “[a]ssignments of error . . . in support of
which no reason or argument is stated or authority cited, will be taken as
abandoned”). However, even assuming
arguendo that this issue is properly before us, we hold the Commission
did not err.
N.C. Gen.
Stat. §97-25.1 (2007) provides as follows:
The 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.
Defendants’
argument appears to be similar to the argument our Court rejected in Guerrero
v. Brodie Contrs., Inc., 158 N.C. App. 678, 582 S.E.2d 346 (2003). In Guerrero, the Commission
declared in its award that the defendants “shall pay for all medical treatment
incurred or to be incurred as a result of [the] [p]laintiff’s compensable
accident for so long as such treatment effects a cure, gives relief, or tends to
lessen [the] [p]laintiff’s period of disability.” Id. at 685, 582 S.E.2d at 351
(quotation omitted). The defendants
argued that “the Commission erred by awarding [the] plaintiff medical benefits
without limitation, when, in fact, [t]he award . . . is
necessarily limited by the operation of N.C.G.S. §97-25[.1.]” Id. at 685, 582 S.E.2d at 350
(quotations omitted). Our Court
held as follows:
The award does not appear to override the provisions of G.S. §97-25.1 and the record does not indicate that the issue of whether the two-year statute of limitations had begun to run was before the Commission. Therefore, we hold that the award is not overly broad and would be subject to the limitations of G.S. §97-25.1, should the conditions arise under which the limitations operate.
Id. at 685, 582
S.E.2d at 351.
In the case
before us, as in Guerrero, the Commission stated in its award that
“Defendants shall pay all medical expenses incurred or to be incurred resulting
from [P]laintiff’s compensable back injury so long as it tends to [e]ffect a
cure and give relief or lessen [P]laintiff’s disability.” Moreover, as in Guerrero, the
record in the present case “does not indicate that the issue of whether the
two-year statute of limitations had begun to run was before the
Commission.” See id. Therefore, as in Guerrero, we
hold that the Commission’s award is subject to the limitations of N.C.G.S.
97-25.1, “should the conditions arise under which the limitations operate.” See id. We overrule these assignments of
error.
V.
Defendants
also argue the Commission erred by concluding that “Defendants were not entitled
to a credit for compensation received by Plaintiff pursuant to a disability
policy provided by [Defendant-Employer].”
N.C. Gen. Stat. §97-42 (2007) provides:
Payments made
by the employer to the injured employee during the period of his disability, or
to his dependents, which by the terms of this Article were not due and payable
when made, may, subject to the approval of the Commission be deducted from the
amount to be paid as compensation.
“Pursuant to
the statute, ‘[t]he decision of whether to grant a credit is within the sound
discretion of the Commission.’“
Cox v. City of Winston-Salem, 171 N.C. App. 112, 115, 613 S.E.2d
746, 748 (2005) (quoting Shockley v. Cairn Studios Ltd., 149 N.C. App.
961, 966, 563 S.E.2d 207, 211 (2002), disc. review denied, 356 N.C. 678,
577 S.E.2d 888 (2003)). In
Cox, our Court recognized:
[I]f an
employer contests a worker’s compensation claim, but nevertheless pays the
employee wage-replacement benefits which are fully funded by the employer and
are not due and payable to the employee, then the employer “should not be
penalized by being denied full credit for the amount paid as against the amount
which [is] subsequently determined to be due the employee under workers’
compensation.”
Id. (quoting
Foster v. Western-Electric Co., 320 N.C. 113, 117, 357 S.E.2d 670, 673
(1987)). However, our Court also
recognized that “neither the Supreme Court nor this Court has held that an
employer is necessarily entitled to a credit against a worker’s compensation
award for payments received by an injured employee pursuant to a benefits
program that has been partially funded by the employee.” Id. Our Court then held that the
defendant-employer was not entitled to a credit for payments received by the
plaintiff-employee pursuant to a benefits program that was partially funded by
the plaintiff-employee. Id.
at 117-18, 613 S.E.2d at 749.
Likewise, in the present case, Defendants stipulated at the hearing
before Deputy Commissioner Chapman that the short-term and long-term disability
plans under which Plaintiff received benefits were partially funded by
Plaintiff. Therefore, we hold that
the Commission did not abuse its discretion by concluding that Defendants were
not entitled to a credit for these payments. See id.
VI.
Defendants
also argue that the Commission’s “acceptance and consideration of [Mr.]
Harding’s testimony is contrary to law.”
Rule 612(3) of the Workers’ Compensation Rules of the North Carolina
Industrial Commission provides as follows:
Except under
unusual circumstances, all lay evidence must be offered at the initial
hearing. Lay evidence can only be
offered after the initial hearing by order of a Commissioner or Deputy
Commissioner. The costs of
obtaining lay testimony by deposition shall be borne by the party making the
request unless otherwise ordered by the Commission.
Defendants
argue that Plaintiff’s method of attempted service upon Mr. Harding was
ineffective and that this failure of service does not qualify as an unusual
circumstance under Rule 612(3) warranting a post-hearing deposition. In that a subpoena may not personally be
served by a party, it does appear that Plaintiff failed to comply with the rules
related to method of service of a subpoena. See N.C. Gen. Stat. §1A-1, Rule
45(b)(1) (2007) (stating: “Any subpoena may be served by the sheriff, by the
sheriff’s deputy, by a coroner, or by any person who is not a party and is not
less than 18 years of age.”).
However, as Deputy Commissioner Chapman recognized:
Since
[P]laintiff did attempt to serve Mr. Harding and since credibility is at issue
in this case and Mr. Harding would have potentially pertinent information
regarding that issue, it appears that [P]laintiff should be allowed to take his
deposition but only if she pays for the deposition and also pays for a
videographer to film the proceeding.
We agree with
this reasoning and hold that Plaintiff’s failure to properly serve Mr. Harding
was an unusual circumstance warranting the taking of his post-hearing deposition
at Plaintiff’s expense.
VII.
Defendants also argue that the Commission’s “remand to the Deputy Commission[er] contained in its . . . 2005 opinion and award was improper and contrary to law.” Specifically, Defendants argue that while the Commission properly remanded the matter for further hearing, the Commission “improperly instructed the Deputy Commissioner hearing the matter on remand to enter an Opinion and Award on the issue of Plaintiff’s disability and entitlement to indemnity and medical compensation. The Full Commission should have retained jurisdiction over the matter in the interest of avoiding unnecessary delay and confusion.” We disagree.
In Joyner
v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610 (1988), our Court
recognized that “when [the] transcript is insufficient to resolve all the
issues, the full Commission must conduct its own hearing or remand the matter
for further hearing.” Id. at
482, 374 S.E.2d at 613. Our Court
further stated:
After the
hearing or after review of the transcript of the hearing before the deputy
commissioner or hearing officer, the full Commission must make findings of fact,
draw conclusions of law therefrom and enter the appropriate order. As we have pointed out before, the
better practice would be for the full Commission to make its own findings of
fact and not adopt the findings of fact of the deputy commissioner or hearing
officer.
Id. at 482-83,
374 S.E.2d at 613. Our Court has
also stated that “[t]he Industrial Commission has authority to review, modify,
adopt, or reject findings of a hearing commissioner[.]” Garmon v. Tridair Industries, 14
N.C. App. 574, 576, 188 S.E.2d 523, 524 (1972) (emphasis
added).
In the case
before us, the transcript was insufficient to resolve several of the issues, and
the Commission properly remanded the case for further hearing before a deputy
commissioner. Following the entry
of Deputy Commissioner Deluca’s opinion and award, the Commission reviewed the
evidence de novo and adopted Deputy Commissioner Deluca’s opinion and
award with two exceptions. However,
the Commission entered its own opinion and award with its own findings of fact
and conclusions of law. This
procedure was permissible under Joyner and Garmon. We overrule these assignments of
error.
Affirmed.
Judge ELMORE
concurs.
Judge JACKSON
concurs in part, and dissents in part, with a separate
opinion.
NO.
COA07-1265
NORTH
CAROLINA COURT OF APPEALS
Filed: 19
August 2008
ANDREA
GREGORY,
Employee,
Plaintiff-Appellee,
v.
North Carolina Industrial Commission
I.C. File No. 209462
W.A. BROWN
& SONS,
Employer,
PMA INSURANCE
GROUP,
Carrier,
Defendants-Appellants.
JACKSON, Judge concurring in part, dissenting in part.
I concur in
the majority opinion except as to its holding that defendant-employer was not
prejudiced by plaintiff’s failure to submit written notice of her injury within
the thirty-day period mandated by North Carolina General Statutes, section
97-22. As to that portion of the
majority opinion, I must respectfully dissent.
While I recognize that there is some divergence of opinion surrounding
this issue, see Booker v. Duke Med. Ctr., 297 N.C. 458, 256 S.E.2d 189
(1979); Richardson v. Maxim Healthcare/ Allegis Group, __ N.C. App. __,
657 S.E.2d 34 (2008); Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437,
640 S.E.2d 744 (2007), rev. denied, 362 N.C. 177, 658 S.E.2d 273
(2008); Chavis v. TLC Home Health Care, 172 N.C. App. 366, 616 S.E.2d 403
(2005), appeal dismissed, 360 N.C. 288, 627 S.E.2d 464, (2006); Watts
v. Borg Warner Auto., Inc., 171 N.C. App. 1, 613 S.E.2d 715, aff’d,
360 N.C. 169, 622 S.E.2d 492 (2005); Davis v. Taylor-Wilkes Helicopter
Serv., 145 N.C. App. 1, 549 S.E.2d 580 (2001); Lakey v. United States
Airways, 155 N.C. App. 169, 573 S.E.2d 703 (2002), rev. denied, 357
N.C. 251, 582 S.E.2d 271 (2003); Westbrooks v. Bowes, 130 N.C. App. 517,
503 S.E.2d 409 (1998); Jones v. Lowe’s Cos., 103 N.C. App. 73, 404 S.E.2d
165 (1991); Sanderson v. Northeast Construction Co., 77 N.C. App. 117,
334 S.E.2d 392 (1985); Chilton v. School of Medicine, 45 N.C. App. 13,
262 S.E.2d 347 (1980), I believe section 97-22 requires the Industrial
Commission to make findings of fact and conclusions of law concerning whether an
employee’s failure to file written notice of the accident within thirty days of
the accident prejudiced the employer.
I do not believe this Court may infer a lack of prejudice when the
Commission has not addressed that issue specifically.
Though there
are opinions from this Court that may be interpreted as supporting a per
se rule of no prejudice under section 97-22 when an employer had actual
notice of the employee’s accident, see Legette, 181 N.C. App. at
448, 640 S.E.2d at 752; Davis, 145 N.C. App. at 11, 549 S.E.2d at 586;
Sanderson, 77 N.C. App. at 123, 334 S.E.2d at 395, I believe the weight
of North Carolina law requires the Commission to make a conclusion of law
stating that the employer was not prejudiced by the employee’s failure to file
within the thirty day mandate, and to support that conclusion with adequate
findings of fact.
Section 97-22
specifically states in relevant part: “no compensation shall be payable unless
such written notice is given within 30 days after the occurrence of the accident
or death, unless reasonable excuse is made to the satisfaction of the Industrial
Commission for not giving such notice and the Commission is satisfied
that the employer has not been prejudiced thereby.” N.C. Gen. Stat. §97-22
(2008) (emphasis added). The burden
is on the employer to prove prejudice. Richardson, __ N.C. App. at __,
657 S.E.2d at 40 (citation omitted).
The Commission is required to make findings of fact concerning
issues upon which the granting or denial of compensation depends. Id.
(citation omitted) (emphasis added).
I am in agreement with previous opinions of this Court which require: 1)
a separate inquiry into the issue of prejudice, and 2) appropriate findings of
fact and conclusions of law in support of the Commission’s ruling on that issue.
See Id.; Westbrook, 130 N.C. App. at 528-29, 503 S.E.2d at
417.
In light of
the confusion engendered by seemingly conflicting opinions from the Court of
Appeals regarding this issue, it is particularly useful to consult the only
North Carolina Supreme Court opinion addressing the section 97-22 prejudice
issue. In Booker, the Supreme Court held that the employer had waived the
issue of section 97-22 notice, because it had failed to raise the issue before
the Commission, and could not raise it for the first time on appeal.
Booker, 297 N.C. at 482, 256 S.E.2d at 204. Although not decided on the prejudice
issue, the Supreme Court “[found] that a claim for compensation under the Act is
barred if the employer is not notified within 30 days of the date the
claimant is informed of the diagnosis “unless reasonable excuse is made to the
satisfaction of the Industrial Commission for not giving such notice and
the Commission is satisfied that the employer has not been prejudiced thereby.”
Id. at 480-81, 256 S.E.2d at 203 (emphasis added). The Court then noted that there were no
findings of fact by the Commission that the employee’s failure to notify the
employer within thirty days was “excusable and nonprejudicial.”
Id. at 481, 256 S.E.2d at 203 (emphasis added). The Court stated that “it would be
unrealistic [under the circumstances in that case] to assume that [the employer]
did not immediately receive notice [of the employee’s injury,]” and went on to
add:
The purpose
of the notice-of-injury requirement is two-fold. It allows the employer to
provide immediate medical diagnosis and treatment with a view to minimizing the
seriousness of the injury, and it facilitates the earliest possible
investigation of the circumstances surrounding the injury. Had appellees squarely presented the
issue of notice at the hearing before the Commission, it could have conducted an
inquiry in accordance with G.S. 97-22 to determine whether or not [the employer]
was prejudiced by the lack of notice. To allow an employer to raise the issue
for the first time on appeal deprives the claimants of the benefits of that
determination and could easily lead to a denial of compensation in a case where
the facts would justify a finding of no prejudice.
Id. at 481-82,
256 S.E.2d at 204 (emphasis added).
Inherent in this reasoning is that even when an employer has actual
notice of an employee’s injury, inquiry into the issue of prejudice at the
Commission level is proper, and indeed necessary, for the insurance of a just
outcome pursuant to the requirements of section 97-22.
In the
instant case, not only did the Commission fail to make any findings of fact to
support a conclusion that defendant-employer was not prejudiced by plaintiff’s
failure to give written notice within thirty days of the accident, there is in
fact no conclusion of law addressing this issue in the Commission’s
opinion and award. The Commission’s
findings of fact must support its conclusions of law, and its conclusions of law
must support its award. Allen v. Roberts Elec. Contrs., 143 N.C. App. 55,
64, 546 S.E.2d 133, 140 (2001). In
the instant case, there are neither sufficient findings nor conclusions to
support the Commissions award, because the necessary element of lack of
prejudice, as required under section 97-22, simply has not been
addressed.
Though our
review of the Commission’s conclusions is de novo, we may not usurp the
jurisdiction of the Commission by inferring findings and conclusions where the
Commission has been silent. “The
Full Commission is charged with a duty ‘to make detailed findings of fact and
conclusions of law with respect to every aspect of the case before it.’”
Bolick v. Freight Sys., __ N.C. App. __, __, 654 S.E.2d 793, 797 (2008)
(citation ommitted); see also Vieregge v. N.C. State University, 105 N.C.
App. 633, 637-38, 414 S.E.2d 771, 773-74 (1992); Morgan v. Thomasville
Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E.2d 619
(1968).
In light of
the plain language of section 97-22, the reasoning in our Supreme Court’s
opinion in Booker, and the Commission’s complete lack of consideration of
the prejudice issue in its opinion and award, I would remand to the Commission
for findings of fact and conclusions of law addressing the issue of prejudice as
required by section 97-22.