All opinions are subject to modification
and technical correction prior to official publication in the
NO. COA08-56
Filed: 16 December 2008
DARVIN TREAT,
Employee,
Plaintiff-Appellant,
v.
I.C.
File No. 254462
Employer,
Self-Insured,
Defendant-Appellee.
Appeal
by Plaintiff from opinion and award entered 27 August 2007 by the North
Carolina Industrial Commission. Heard in
the Court of Appeals 9 September 2008.
The Law Office of
G. Lee Martin, P.A., by G. Lee Martin, for Plaintiff-Appellant.
Jones, Hewson
& Woolard, by R.G. Spratt III, for Defendant-Appellee.
McGEE, Judge.
Plaintiff
sustained an injury by accident in the course of his employment with Defendant
on 20 May 2002. Plaintiff’s claim was
accepted as compensable pursuant to a Form 60 agreement dated 6 June 2002. Plaintiff was treated and evaluated for his
injuries between 20 May 2002 and 12 November 2003. Plaintiff was released to return to sedentary
work on 5 November 2002, and reached maximum medical improvement on 17 December
2002, with permanent restrictions that consisted of: (1) no ladder climbing,
(2) no standing or walking over thirty minutes per hour, and (3) limited work
on uneven surfaces. Plaintiff received
temporary total disability benefits from Defendant from 21 May 2002 until 5
November 2002. Plaintiff worked for
Defendant in a sedentary position from 6 November 2002 until 31 January
2003. Plaintiff and Defendant disputed
whether Plaintiff was entitled to disability benefits for the period from 1
February 2003 to 3 April 2004. Plaintiff
and Defendant entered into a partial compromise settlement agreement on 5
January 2004, whereby Defendant agreed to pay Plaintiff a lump sum
reimbursement for benefits and all disputed expenses for the period from 1
February 2003 through 31 October 2003, and further agreed to reinstate
temporary total disability compensation from 1 November 2003 by filing a Form
62, which it did on 6 April 2004.
Plaintiff agreed to cooperate with all vocational efforts offered by
Defendant, and further agreed that failure to cooperate with the vocational
efforts would subject Plaintiff to suspension or termination of temporary total
disability benefits. Deputy Commissioner
Edward Garner, Jr. issued an order approving this agreement on 8 March 2004.
Defendant
paid all disability benefits owed Plaintiff from the period between 1 November
2003 and the entry of the opinion and award of the Full Commission on 27 August
2007. In its opinion and award, the Full
Commission found as fact, inter alia, the following: “Plaintiff was
employed by [D]efendant as a real estate appraiser from 1985 until May 20,
2002. The job required an ability to
make mathematical calculations and considerable analytical skills. Plaintiff received good employment reviews
from his supervisors and several merit raises.”
Plaintiff worked sedentary employment with Defendant from 6 November
2002 until 31 January 2003, and never complained that his disability caused him
any difficulties in performing that job.
Two doctors, one on 5 November 2002 and one on 28 February 2003, advised
that Plaintiff could perform sedentary work.
The Full Commission also found that
“plaintiff has not made reasonable efforts to find employment and there
is insufficient evidence to show by the greater weight that it would be futile
for [P]laintiff to seek employment . . . .”
The
Full Commission ordered that: (1) Defendant pay Plaintiff temporary total
disability benefits from the date Plaintiff left employment with Defendant
until 20 January 2005, (2) Defendant pay all medical expenses resulting from
Plaintiff’s injury by accident, and (3) Defendant pay the costs of the
action. The Full Commission further
ordered that all temporary total disability benefits remain suspended for as
long as Plaintiff refused to seek suitable employment with Defendant or another
employer. Plaintiff appeals. [R. p. 30]
In
Plaintiff’s fourth argument, he contends the Full Commission erred in placing
the burden on him to prove he is disabled.
We disagree.
“Disability,” within the meaning . . . of
the
(1) that [he] was incapable after [his]
injury of earning the same wages [he] had earned before [his] injury in the
same employment, (2) that [he] was incapable after [his] injury of earning the
same wages [he] had earned before [his] injury in any other employment, and (3)
that [his] incapacity to earn was caused by [his] injury.
The employee may meet [his] initial
burden of production by producing:
(1) . . . medical evidence that [he] is
physically or mentally, as a consequence of the work related injury, incapable
of work in any employment; (2) . . . evidence that [he] is capable of some
work, but that [he] has, after a reasonable effort on [his] part, been
unsuccessful in [his] effort to obtain employment; (3) . . . evidence that [he]
is capable of some work but that it would be futile because of preexisting
conditions, i.e., age, inexperience, lack of education, to seek other
employment; or (4) . . . evidence that [he] has obtained other employment at a wage less than that earned
prior to the injury.
Once an employee meets [his] initial
burden of production, the burden of production shifts to the employer to show “that
suitable jobs are available” and that the employee is capable of obtaining a
suitable job “taking into account both physical and vocational limitations.” The burden of proving a disability, however,
remains on the employee.
Demery v. Perdue
Farms, Inc., 143 N.C.
App. 259, 264-65, 545 S.E.2d 485, 489-90 (2001) (citations omitted). “‘Whether 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 Commission–not the hearing officer. It is the Commission that
ultimately determines credibility, whether from a cold record or from live
testimony.’“ Johnson v. Southern Tire
Sales and Service, 358 N.C. 701, 711, 599 S.E.2d 508, 515 (2004) (citation
omitted). “The Commission’s findings of
fact ‘are conclusive on appeal when supported by competent evidence even though’
evidence exists that would support a contrary finding.”
In his
brief, Plaintiff fails to argue that any specific findings of fact made by the
Full Commission were not based upon sufficient evidence in the record. The findings of the Full Commission are thus
binding on appeal. Bass v. Morganite,
Inc., 166 N.C. App. 605, 609, 603 S.E.2d 384, 386-87 (2004) (citation
omitted).
Plaintiff
argues that due to the “Partial Agreement and Release” entered into by
Plaintiff and Defendant on 5 January 2004, which was approved by Deputy
Commissioner Garner by his “order approving partial compromise settlement
agreement[,]” filed 8 March 2004, Plaintiff was presumed to be disabled as
defined by the Act, and the burden was on Defendant to rebut this
presumption. In light of Plaintiff’s
argument, he contends the following conclusion of law in the Full Commission’s
opinion and award was erroneous as a matter of law:
Assuming arguendo that the job
offered by [D]efendant was not suitable employment, [P]laintiff also failed to
prove continuing disability as a result of the compensable injury by
accident. Plaintiff was not taken out of
work by any doctor, was capable of some work but failed to show that he made a
reasonable but unsuccessful effort to find employment, and he did not show that
it was futile for him to seek employment due to other factors.
Plaintiff’s
sole argument concerning this conclusion of law was that the burden was improperly
placed upon him to prove continuing disability, because the 8 March 2004 order
entered by Deputy Commissioner Garner established a presumption of disability
in his favor.
“a presumption of disability in favor of
an employee arises only in limited circumstances.” Those limited circumstances are (1) when
there has been an executed Form 21, “AGREEMENT FOR COMPENSATION FOR DISABILITY”;
(2) when there has been an executed Form 26, “SUPPLEMENTAL AGREEMENT AS TO
PAYMENT OF COMPENSATION”; or (3) when there has been a prior disability award
from the Industrial Commission.
Otherwise, the burden of proving “disability” remains with plaintiff,
even if the employer has admitted “compensability.”
Clark v. Wal-Mart, 360 N.C. 41, 44, 619 S.E.2d 491, 493
(2005) (citations omitted). It is
uncontroverted that neither a Form 21 nor a Form 26 has been executed in this
matter. Plaintiff argues that the 8
March 2004 order entered by Deputy Commissioner Garner constituted a “prior
disability award from the Industrial Commission.” Plaintiff cites Watkins v. Central Motor
Lines, Inc., 279 N.C. 132, 181 S.E.2d 588 (1971) and Kisiah v. W.R.
Kisiah Plumbing, 124 N.C. App. 72, 476 S.E.2d 434 (1996) in support of his
argument.
In Watkins,
our Supreme Court stated that an “agreement between the parties on Form 21,
approved by the Commission on 16 June 1967, provided for payment of
compensation at the rate of $37.50 per week ‘for necessary weeks.’ This constituted an award by the Commission
enforceable, if necessary, by a court decree. G.S. 97-87[.]” Watkins, 279 N.C. at 138, 181 S.E.2d
at 593. In Kisiah, this Court
held that a
Form 21 agreement “‘for the payment of
compensation, [once] approved by the Commission, [was] as binding on the
parties as an order, decision or award of the Commission unappealed from.’“ Once the Form 21 agreement was reached and
approved, “‘no party . . . [could] thereafter be heard to deny the truth of the
matters therein set forth . . . .’“
Kisiah, 124 N.C. App. at 77, 476 S.E.2d
434, 436 (citations omitted).
In the
instant case, Plaintiff and Defendant entered into an agreement on 5 January
2004, whereby Defendant agreed to submit a Form 62 and resume temporary total
disability benefits for as long as Plaintiff cooperated with all Defendant’s
vocational efforts. Deputy Commissioner
Garner approved this agreement by order filed 8 March 2004, stating:
the Partial Compromise Settlement
Agreement is deemed by the Commission to be fair and just, and in the best
interest of all parties. The Agreement
is incorporated by reference and is approved in a lump sum amount of $15,320,
together with the Employer’s agreement to reinstate temporary total disability
benefits effective November 1, 2003, in accordance with a Form 62.
The 5 January 2004
agreement entered into between Plaintiff and Defendant makes clear Defendant “admitted
[Plaintiff’s] right to compensation for [Plaintiff’s] leg injuries by
submitting a Form 60, dated June 6, 2002[.]”
Further, Defendant “agreed to reinstate [Plaintiff’s] temporary total
disability benefits effective November 1, 2003, pursuant to a Form 62, and
Defendant “agrees to submit a Form 62 indicating a resumption of temporary
total disability benefits effective November 1, 2003.”
Watkins and Kisiah both involved orders
of the Commission ratifying agreements by employers to reinstate employees’
disability benefits pursuant to Form 21.
Both of these opinions are consistent with the holding in
Plaintiff
has failed to argue that the Full Commission’s findings of fact do not support
its conclusion that:
[P]laintiff . . . failed to prove
continuing disability as a result of the compensable injury by accident. Plaintiff was not taken out of work by any
doctor, was capable of some work but failed to show that he made a reasonable
but unsuccessful effort to find employment, and he did not show that it was
futile for him to seek employment due to other factors.
Because Plaintiff
fails to make this argument in violation of North Carolina Rules of Appellate
Procedure, Rule 28(b)(6), and because our review of the Full Commission’s
findings of fact shows the Full Commission’s findings of fact support this
conclusion of law, we hold that the Full Commission did not err in concluding
that Plaintiff had failed to prove continuing disability. This argument is without merit.
Because
we hold the Full Commission’s opinion and award contains sufficient findings of
fact and appropriate conclusions of law to support its award, we do not address
Plaintiff’s additional arguments.
Affirmed.
Judges McCULLOUGH and STROUD concur.