All opinions are subject to modification
and technical correction prior to official publication in the North Carolina
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discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
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NO. COA06-875
NORTH CAROLINA COURT OF APPEALS
Filed: 2 October
2007
PENNY M. RUMPLE RICHARDSON,
Employee,
Plaintiff-Appellant,
v. North Carolina Industrial Commission
I.C.
File No. 265022
MAXIM HEALTHCARE/
ALLEGIS GROUP,
Employer,
and
KEMPER INSURANCE COMPANY/
AMERICAN PROTECTION INSURANCE
c/o SPECIALTY RISK SERVICES,
Carrier,
Defendants-Appellees,
Appeal by defendants from Opinion and Award of the Full
Commission of the North Carolina Industrial Commission entered 15 March
2006. Heard in the Court of Appeals 20
February 2007.
Anne
R. Harris, for plaintiff-appellee.
Robinson
& Lawing, L.L.P, by Jolinda J. Babcock and Eleasa H. Allen, for
defendants-appellees.
JACKSON, Judge.
Maxim Healthcare/Allegis Group (“defendant-employer”) and
its insurance carrier, Kemper Insurance Company/American Protection Insurance
c/o Specialty Risk Services (collectively, “defendants”), appeal from an order
of the Full Commission of the North Carolina Industrial Commission (“Full
Commission”) filed 15 March 2006 awarding workers’ compensation benefits to
Penny M. Rumple Richardson (“plaintiff”).
For the reasons stated below, we affirm in part, reverse in part, and
remand for further proceedings not inconsistent with this opinion.
In 1996, plaintiff began working for defendant-employer, a
medical staffing agency with approximately 400 employees. As a certified nursing assistant, plaintiff
worked either in a long-term care facility or in a client’s home. Plaintiff’s work duties varied with the
particular assignment and “could be very strenuous to very light,” with work
ranging from total patient care to sitting with an elderly or disabled
patient. Work assignments were made
either when an employee contacted defendant-employer to see if work was
available or when defendant-employer contacted an employee seeking to fill a
particular assignment. Employees could
turn down jobs, and many of defendant-employer’s employees, including
plaintiff, worked a sporadic schedule.
On 16 May 2001, plaintiff was assigned work assisting a
paraplegic client with bathing, dressing, and general care. Plaintiff left the client’s house to pick up
food, and while traveling at approximately fifty-five miles per hour in the
right-hand lane, another vehicle drifted out of the left-hand lane and struck
plaintiff’s vehicle. The impact caused
plaintiff’s vehicle to spin out of control and strike a cement median
barrier. The vehicle’s air bags did not
deploy, and plaintiff hit her head and right knee on something in the car. The driver of the other vehicle did not
stop. As a result of the accident,
plaintiff immediately experienced swelling in her face and right knee. Plaintiff also sustained injuries to her
chest as a result of the accident.
Emergency Medical Services (“EMS”) arrived at the scene of
the accident and noted that plaintiff complained of pain in the left side of
her head. EMS also noted edema to the
left side of plaintiff’s upper lip. EMS
transported plaintiff to Moses Cone Memorial Hospital, where she was treated
for headache, difficulty breathing, contusions, swelling around her mouth and
chin, and moderate pain and soreness around her head, face, and chest.
Additionally, plaintiff began experiencing a decrease in the
size of her breast implants as well as a rippling of the breasts almost
immediately after the motor vehicle accident.
Plaintiff, who had obtained the implants approximately five years prior
to the accident, reported her concerns to the physicians at the emergency
room. The physicians performed a visual
inspection but noted no asymmetry.
Within twenty to thirty minutes after the accident,
plaintiff called defendant-employer and reported the accident to her
supervisor. Defendant-employer
acknowledged that it first learned of the injury on 16 May 2001 — the date of
the accident — on Industrial Commission Form 19, dated 9 August 2002. Also shortly after the accident, plaintiff
filed uninsured motorists claims with Nationwide Insurance (“Nationwide”) — the
insurance carrier for plaintiff’s motor vehicle — for the personal injuries she
sustained as a result of the accident.
On 17 May 2001, plaintiff presented to her family physician
at Eagle Family Medicine, complaining of significant soreness, particularly in
her shoulders and upper back. The
physical examination revealed tenderness and soft tissue swelling over plaintiff’s
left cheek as well as a contusion on the inside of her upper lip. Plaintiff was given a note that provided
that she was not to return to work until 6 June 2001 due to medical reasons.
On 31 May 2001, plaintiff presented to Dr. David M. Bowers
(“Dr. Bowers”), a board certified specialist in plastic surgery, and expressed
concerns “that there was a decrease in the size of the implants, fairly
immediately [after the accident].”
Plaintiff also informed Dr. Bowers of “some rippling in the implants” and
that she was “no longer filling out the bras that she . . . bought post surgery.”
Dr. Bowers testified that plaintiff’s right breast implant had ruptured,
and the left breast implant, although it did not appear to have ruptured,
exhibited signs of rippling. On 7 June
2001, Dr. Bowers performed bilateral breast re-augmentation — specifically, he
removed the original implants and replaced them with new implants. Nationwide paid Dr. Bowers for his work,
pursuant to plaintiff’s claim with Nationwide.
Following the surgery on 7 June 2001, Dr. Bowers restricted plaintiff
from working until 24 July 2001.
Plaintiff also sought treatment for her right knee. Prior to the accident, she had undergone two
knee surgeries, after which plaintiff had been able to return to work without
restrictions. Following the accident,
plaintiff began experiencing pain and swelling in her right knee, and on 9 July
2001, she presented to Dr. Peter G. Dalldorf (“Dr. Dalldorf”) for
treatment. Dr. Dalldorf confirmed
plaintiff’s complaints and referred her to physical therapy. Plaintiff followed up with Dr. Dalldorf on
30 July 2001, complaining of “intense pain since her accident” in her right
knee. As a result, Dr. Dalldorf
injected plaintiff’s right knee and restricted plaintiff from working from 9
July 2001 until 6 August 2001.
Plaintiff returned to work on a regular basis on 7 August
2001, [Note 1] but ceased working on 6 October 2001 to have surgery on
her right knee on 9 October 2001.
Between October 2001 and May 2002, when plaintiff returned to Dr.
Dalldorf, she was limited in her abilities to crawl, climb, or stoop as well as
lift, position, and turn patients.
Nevertheless, plaintiff regularly contacted defendant-employer
requesting to be assigned to light-duty jobs that she was capable of
performing. Plaintiff testified that
defendant-employer rarely offered her modified work that she was physically
capable of performing, and during this time, plaintiff worked a total of eight
days, performing light-duty jobs as they became available and were offered to
her. Defendant-employer used
plaintiff’s wages on nearly all of these days to pay her health insurance
costs.
On 25 June 2002, Dr. Dalldorf performed a second
post-accident surgery on plaintiff’s right knee. Plaintiff has not worked since this surgery and has been under
work restrictions from her physicians.
On 8 October 2002, Dr. Dalldorf performed a third post-accident surgery
on plaintiff’s knee. Dr. Dalldorf
testified that although plaintiff had chondromalacia patella prior to the motor
vehicle accident, plaintiff’s motor vehicle accident aggravated her
pre-existing condition, and she would not have needed the three surgeries but
for the motor vehicle accident. Dr.
Dalldorf further noted on 5 February 2003 that plaintiff would have trouble
performing her regular job duties.
Plaintiff also has experienced discomfort in her right hand
since the accident. On 22 January 2003,
plaintiff presented to Dr. Marshall C. Freeman (“Dr. Freeman”), complaining
that she had been experiencing bilateral hand numbness and tingling, especially
on her right hand, since May 2001.
Plaintiff also explained her hand condition to Dr. Dalldorf on 5
February 2003. Dr. Dalldorf reviewed
the nerve conduction studies performed by Dr. Freeman, noted that the studies
revealed a mild carpal tunnel syndrome on her right hand, and injected
plaintiff’s hand with Depo-Medrol.
Plaintiff returned to Dr. Dalldorf on 26 February 2003, complaining of
continued discomfort in her right hand.
Having already prescribed a brace and injection for plaintiff, Dr.
Dalldorf decided to refer plaintiff to Dr. Gary R. Kuzma (“Dr. Kuzma”).
On 6 March 2003, plaintiff presented to Dr. Kuzma, who is
board certified in orthopedics and hand surgery, complaining of numbness and
tingling in her hand. Plaintiff also
indicated that “[s]he felt as though it was gradually getting worse.” Plaintiff indicated to Dr. Kuzma that she
had been experiencing pain since her motor vehicle accident. Dr. Kuzma diagnosed plaintiff with carpal
tunnel syndrome as well as arthrosis in her right thumb. Dr. Kuzma recommended immobilizing
plaintiff’s thumb and wrist by placing her right hand in a splint. On 4 June 2003, Dr. Kuzma performed a carpal
tunnel release on plaintiff’s right hand.
On 5 January 2004, Dr. Kuzma testified that plaintiff remained under his
care and on one-handed work restrictions.
He also opined that plaintiff may require additional surgery on her
thumb in the future.
Since her 16 May 2001 motor vehicle accident, plaintiff also
has experienced daily and continuous headaches. Plaintiff complained of a headache at the time of the accident to
EMS workers. Plaintiff first sought
treatment for her headaches on 23 October 2002 when she visited Dr.
Freeman. Dr. Freeman’s initial
examination revealed bilateral occipital nerve tenderness along with a
decreased range of motion of plaintiff’s cervical spine. Over the course of his care of plaintiff,
Dr. Freeman diagnosed plaintiff with “cervicogenic headache as well as
occipital neuralgia as well as a previous comorbid condition of
fibromyalgia and migraine headache
without aura.” Dr. Freeman prescribed a
variety of medications and performed trigger point injections and occipital
nerve blocks, but plaintiff exhibited no significant improvement. Dr. Freeman testified that further options
existed for treating plaintiff’s headaches, including additional trigger point
injections, botulinum-toxin injections, and integrative therapies. Plaintiff did not follow up on the
integrative therapies, which Dr. Freeman explained typically are not covered by
insurance.
Finally, plaintiff’s injuries as a result of the motor
vehicle accident included several dental injuries. Plaintiff initially presented to Dr. Dennis Torney (“Dr.
Torney”), a board certified endodontist, on 30 April 2002. Dr. Torney has performed root canals on
several teeth on the left side of plaintiff’s mouth, including multiple root
canals on some of those teeth. Dr.
Torney also has performed dental work and crowns on the teeth that underwent
root canal therapy. These teeth all are
on the left side of plaintiff’s mouth — the side of her face impacted during
the accident. Plaintiff has received
treatment for teeth numbers 12, 13, 14, 15, 19, 23, and 24, although the Full
Commission found that the repair to tooth number 19 was the result of a
previous inadequate root canal, as opposed to the motor vehicle accident.
After receiving her final check from Nationwide, plaintiff
filed for workers’ compensation benefits on 24 June 2002. Defendants denied liability on 9 September
2002. On 30 October 2003, a hearing was
held before Deputy Commissioner George T. Glenn II, and on 17 June 2004, Deputy
Commissioner Glenn issued an Opinion and Award in favor of plaintiff. Defendants appealed to the Full Commission,
which entered an Opinion and Award on 15 March 2006 affirming Deputy
Commissioner Glenn’s decision with modifications. Chairman Buck Lattimore filed a dissenting opinion. On 14 April 2006, defendants filed timely
notice of appeal.
On appeal, defendants contend that: (1) the Full Commission erred in failing to properly address whether plaintiff timely reported her claim pursuant to North Carolina General Statutes, section 97-22 and whether the case should be barred for her failure to do so; (2) no competent evidence causally relates plaintiff’s various alleged injuries to the accident; (3) the Full Commission failed to properly place the burden of proving disability on plaintiff and that plaintiff presented insufficient evidence of disability; and (4) the Full Commission erred in failing to award defendants a lien on all amounts accepted by plaintiff in her third-party settlement in contravention of North Carolina General Statutes, section 97-10.2.
As a preliminary matter, we note that defendants’ third
assignment of error in the record on appeal violates the North Carolina Rules
of Appellate Procedure. Pursuant to
Rule 10(c),
[e]ach
assignment of error shall . . . state plainly, concisely and without
argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it
directs the attention of the appellate court to the particular error about
which the question is made, with clear and specific record or transcript
references.
N.C.
R. App. P. 10(c)(1) (2006). In their
third assignment of error, defendants contend:
“The Full Commission erred in omitting relevant stipulated documents
from the transcript of the evidence prepared by the Industrial
Commission.” The assignment of error
does not indicate to which documents defendants are referring, and this Court
has held that “[a]ssignments of error which are ‘broad, vague, and unspecific .
. . do not comply with the North Carolina Rules of Appellate Procedure.’” Hedingham
Cmty. Ass’n v. GLH Builders, Inc., 178 N.C. App. 635, 641, 634 S.E.2d 224,
228 (quoting In re Lane Company-Hickory Chair Div., 153 N.C. App. 119,
123, 571 S.E.2d 224, 22627 (2002)), disc. rev. denied, 360 N.C. 646,
636 S.E.2d 805 (2006). Additionally,
assignments of error are required to include “clear and specific record
or transcript references,” N.C. R. App. P. 10(c)(1) (2006) (emphasis added),
but defendants’ third assignment of error makes only the blanket reference to
“Transcripts Volumes I and II.” See State v. Walters, 357 N.C.
68, 95, 588 S.E.2d 344, 360 (“Defendant identifies the ‘Entire Transcript’ as
the basis for the assignment of error alleging ineffective assistance of
counsel, as contained in the record on appeal.
As there are 3,285 transcript pages in this case, a reference to the
entire transcript is not a reference to a ‘particular error’, nor is it ‘clear
and specific.’”), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320
(2003). In effect, defendants’ third
assignment of error fails to specify which documents should have been included
in the transcripts and fails to provide specific record or transcript
references. “It is not the role of the
appellate courts . . . to create an appeal for an appellant.” Viar v. N.C.
Dep’t of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (per curiam), reh’g
denied, 359 N.C. 643, 617 S.E.2d 662 (2005). Accordingly, defendants’ third assignment of error is dismissed.
In their first argument, defendants contend that the Full Commission erred in failing to properly address whether plaintiff timely reported her claim pursuant to North Carolina General Statutes, section 97-22 and whether the case should be barred for her failure to do so. We agree.
North Carolina General Statutes, section 97-22 provides that
an injured employee must give written notice to his employer “immediately on
the occurrence of an accident, or as soon thereafter as practicable . . .; but
no compensation shall be payable unless such written notice is given within 30
days after the occurrence of the accident . . . .” N.C. Gen. Stat. §97-22
(2001). In the instant case, it is
undisputed that plaintiff did not provide written notice of the accident until
she filed her workers’ compensation claim on 24 June 2002, over one year after
her accident on 16 May 2001.
An employee is excused from the thirty-day notice requirement,
however, if the employee has a “reasonable excuse . . . for not giving such
notice and . . . the employer has not been prejudiced thereby.” Id. As this Court recently noted,
included on the
list of reasonable excuses would be, for example, a belief that one’s employer
is already cognizant of the accident or where the employee does not reasonably
know of the nature, seriousness, or probable compensable character of his
injury and delays notification only until he reasonably knows.
Chavis
v. TLC Home Health Care, 172 N.C. App. 366, 377, 616 S.E.2d 403, 412
(2005) (internal quotation marks and alterations omitted) (quoting Jones v.
Lowe’s Cos., Inc., 103 N.C. App. 73, 75, 404 S.E.2d 165, 166 (1991)), appeal
dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006). “The burden is on the employee to show a ‘reasonable excuse.’” Id.
(citing Jones, 103 N.C. App. at 75, 404 S.E.2d at 166).
Here, plaintiff telephoned her supervisor within thirty
minutes after the accident and reported the motor vehicle accident to him. Indeed, defendants concede that they had
actual knowledge of the accident on the day it happened. Although the evidence demonstrates and the
Full Commission found that defendant had actual knowledge of plaintiff’s
accident, the Full Commission failed to make any finding that plaintiff
provided a reasonable excuse for her failure to timely provide written notice
of her accident. As this Court has
noted, “[w]hile the Industrial Commission is not required to make specific
findings of fact on every issue raised by the evidence, it is required to make
findings on crucial facts upon which the right to compensation depends.” Watts
v. Borg Warner Auto., Inc., 171 N.C. App. 1, 5, 613 S.E.2d 715, 719, aff’d,
360 N.C. 169, 622 S.E.2d 492 (2005) (per curiam). The determination whether or not there is a “reasonable excuse”
for plaintiff’s failure to file in writing is crucial. Although “[a]ctual notice by the employer
has been previously held by this Court to be a reasonable excuse for not giving
written notice within thirty days,” Chavis, 172 N.C. App. at 378, 616
S.E.2d at 413, we must remand this case to the Full Commission for specific
findings with respect to whether plaintiff satisfied her burden of providing a
reasonable excuse for not providing defendant-employer with written notice of
her accident within thirty days of its occurrence.
Additionally, the inquiry pursuant to section 97-22 does not
conclude with a finding of “reasonable excuse.” “Section 97-22 . . . also requires that the [F]ull Commission be satisfied
that the employer has not been prejudiced by the delay in written
notification[,] . . . [and] [t]he burden is on the employer to show prejudice.”
Id.
Here, the Full Commission found that “[i]n light of . . .
defendants’ actual notice of . . . plaintiff’s accident in May 2001, . . .
defendants were not prejudiced by her failure to immediately file a written
notice.” However, the mere existence of
actual notice, without more, cannot satisfy the statutorily required finding
with respect to “prejudice,” as the issue of “prejudice” pursuant to section
97-22 must be evaluated in relation to the purpose of the notice requirement:
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.
Booker
v. Duke Med. Ctr., 297 N.C. 458, 481, 256 S.E.2d 189, 204 (1979); see also
Jones, 103 N.C. App. at 7677, 404 S.E.2d at 167. Accordingly, we remand this case for adequate findings of fact
with respect to the issue of prejudice to defendant-employer pursuant to
section 97-22. See Westbrooks v. Bowes, 130 N.C. App. 517, 52729, 503
S.E.2d 409, 41617 (1998) (remanding the case to the Full Commission for
specific findings on whether the employer was prejudiced pursuant to section
97-22).
Next, defendants contend that no competent evidence causally
relates plaintiff’s various injuries to her motor vehicle accident of 16 May
2001. We agree in part and disagree in
part.
When reviewing decisions of the North Carolina Industrial
Commission, this Court must determine whether there is competent evidence in
the record to support the Commission’s findings of fact and whether those
findings, in turn, justify the Commission’s conclusions of law. See Perkins
v. U.S. Airways, 177 N.C. App. 205, 21011, 628 S.E.2d 402, 406 (2006), disc.
rev. denied, 361 N.C. 356, 644 S.E.2d 231 (2007). With respect to causation, it is well-established that
[e]xpert
testimony that a work-related injury ‘could’ or ‘might’ have caused further
injury is insufficient to prove causation when other evidence shows the
testimony to be ‘a guess or mere speculation.’ However, when expert testimony
establishes that a work-related injury ‘likely’ caused further injury,
competent evidence exists to support a finding of causation.
Cannon
v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 264, 614 S.E.2d 440,
44647 (citations omitted), disc. rev. denied, 360 N.C. 61, 621 S.E.2d
177 (2005).
In the instant case, plaintiff sought workers’ compensation
benefits for: (1) the replacement of her breast implants, (2) treatment for
headaches, (3) treatment for carpal tunnel syndrome and arthrosis in her right
wrist and thumb, (4) treatment for and surgeries to her right knee, and (5)
treatments and procedures performed on her teeth. We address each injury separately in the above listed order.
Pursuant to our Workers’ Compensation Act, “[i]njury shall
include breakage or damage to eyeglasses, hearing aids, dentures, or other
prosthetic devices which function as part of the body.” N.C. Gen. Stat. §97-2(6) (2001). Although this Court has not addressed the
issue of compensability of damage to breast implants, we have affirmed workers’
compensation awards for cosmetic surgery. See, e.g., Ray v. Pet
Parlor, 169 N.C. App. 236, 609 S.E.2d 256 (2005). We believe that the weight of authority supports a determination
that breast implants satisfy the statutory requirement as a compensable
prosthetic device that functions as part of the body. See N.C. Gen.
Stat. §97-2(6) (2001); see, e.g., Wal-Mart Stores, Inc. v. VanWagner,
990 S.W.2d 522 (Ark. 1999) (finding that substantial evidence supported the
Workers’ Compensation Commission’s decision that the employee suffered a
compensable injury to her right breast implant in the course of her
employment); In re Smith, 34 P.3d 696 (Or. Ct. App. 2001) (affirming an
order of the Workers’ Compensation Board that concluded that the employee had
suffered a compensable injury when an on-the-job accident caused one of her
saline breast implants to collapse); see also Cowen v. Wal-Mart, 93 P.3d
420, 424 (Alaska 2004) (injury to the employee’s breast implant was presumptively
compensable).
Following her motor vehicle accident on 16 May 2001,
plaintiff noted that her right breast was smaller than it had been prior to the
accident. Plaintiff also noted rippling
in her left breast. On 31 May 2001,
plaintiff presented to Dr. Bowers, a board certified specialist in plastic
surgery, and expressed concerns that her breast implants had ruptured. Subsequently, on 7 June 2001, Dr. Bowers
removed and replaced plaintiff’s original breast implants.
During his deposition, Dr. Bowers was presented with a
hypothetical scenario that echoed plaintiff’s description of the accident and
her injuries. In response, Dr. Bowers
opined “that the accident more than likely caused the leak” in the right breast
implant and that even if the accident did not directly cause the leak, the
trauma “most definitely” could have accelerated or aggravated such a leak. Dr. Bowers, however, noted that the left
breast implant had not ruptured, and he could not state with any certainty that
the rippling evident in the left breast was a result of the motor vehicle
accident, as opposed to an underfilling of the implant. The Full Commission found that replacement
of the left breast implant was necessary “because the replacements would have
to be symmetrical and evenly matched.
Replacement of one implant required replacement of both.” Dr. Bowers, however, never testified to this
effect. Dr. Bowers stated that the
rippling in the left breast most likely was due to the original left breast
implant’s being underfilled. Accordingly,
we hold that the Full Commission correctly ruled with respect to the
replacement of plaintiff’s right breast implant, but erred in concluding that
“plaintiff sustained compensable injuries to her . . . bilateral breast
implants.” (Emphasis added). Therefore,
plaintiff is entitled only to compensation for replacement of the right breast
implant, and we remand to the Full Commission for a determination as to the
appropriate amount of compensation for such replacement.
We next review the Full Commission’s ruling that plaintiff was entitled to workers’ compensation benefits for her headaches. During her motor vehicle accident, plaintiff sustained an impact to her head, as evidenced in the EMS report as well as the emergency room records. Dr. Freeman, plaintiff’s treating physician for her headaches, testified as to the cause of plaintiff’s headaches. Defendants assert on appeal that “Dr. Freeman’s opinions changed throughout the deposition” and that “[h]is opinions are indecisive at best.” We disagree.
To the extent defendants contend Dr. Freeman was not a
credible witness, we decline to rule on that issue. See Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 43334, 144 S.E.2d 272, 274 (1965) (“The
Commission is the sole judge of the credibility of the witnesses and the weight
to be given their testimony.”).
Furthermore, defendants misconstrue Dr. Freeman’s testimony, which
appears consistent with respect to plaintiff’s headaches. During his deposition, Dr. Freeman opined:
It would be my
opinion that this person, who did not previously suffer from daily head or neck
pain prior to the accident, did suffer the chronic daily head and neck pain as
reported to me as a consequence of the motor vehicle accident.
Dr.
Freeman clarified that plaintiff’s fibromyalgia diagnosis did not alter his
conclusion, stating “that without a history of documented fibromyalgia, the
accident caused the pain the patient states,” and “[i]f she had fibromyalgia
previously, then . . . the accident exacerbated an underlying condition.” Dr. Freeman explained that the only way he
would be unable to state with any certainty that the accident caused the
headaches or aggravated an underlying condition would be “[i]f the patient had
an extended period of pain-free, say, beginning a week or two after the initial
injury.” However, Dr. Freeman testified
that “[f]rom the very beginning the patient has stated she’s experienced a
daily headache since the time of her accident.” Accordingly, the Full Commission did not err in accepting Dr.
Freeman’s testimony and ruling that plaintiff’s headaches constituted a
compensable injury.
Next, plaintiff sought and obtained compensation for
treatment for carpal tunnel syndrome in her right wrist and arthrosis in her
right thumb. Once again, defendants
effectively request this Court to re-weigh the evidence presented before the
Full Commission. However, “[t]his Court
does not re-weigh evidence or assess credibility of witnesses.” Sharpe v.
Rex Healthcare, 179 N.C. App. 365, 370, 633 S.E.2d 702, 705 (2006).
Dr. Dalldorf testified that plaintiff’s right wrist and
thumb pain was not related to the motor vehicle accident. Dr. Dalldorf further explained that he was
“not even convinced she had carpal tunnel syndrome.” Defendants contend that the Full Commission improperly
disregarded this testimony in favor of that of Dr. Kuzma. Dr. Kuzma opined that plaintiff’s motor
vehicle accident, as described to him in a hypothetical question during his
deposition, either caused or at least aggravated or accelerated plaintiff’s
carpal tunnel syndrome and arthrosis.
Although plaintiff did not seek treatment for carpal tunnel syndrome
symptoms for more than a year after the accident, Dr. Kuzma explained that
“[m]ost carpel tunnel syndromes are going to take a period of time to develop.
. . . Depending, again, on the trauma, the direction of trauma, it may take a
longer period of time for it to actually show up.” As this Court has held, “[t]he Commission may weigh the evidence and
believe all, none or some of the evidence.” Hawley v. Wayne Dale Constr.,
146 N.C. App. 423, 428, 552 S.E.2d 269, 272, disc. rev. denied, 355 N.C.
211, 558 S.E.2d 868 (2001). It is not
for this Court to evaluate the comparative weight of Dr. Dalldorf’s and Dr.
Kuzma’s testimony. Competent evidence
supports the Full Commission’s finding that the treatment for plaintiff’s right
hand and wrist was the result of her motor vehicle accident, and accordingly,
this portion of defendants’ assignment of error is overruled.
Defendants also contest the Full Commission’s findings and
conclusions with respect to plaintiff’s right knee. Defendants note that plaintiff did not report complaints of knee
pain in the first several weeks following the accident. Defendants further argue that “Dr.
Dalldorf’s theories as to causation stemmed from his hypothesis that
plaintiff’s knee hit the dashboard during the accident — a fact unsubstantiated
by competent evidence.”
Plaintiff testified that she felt her knee “hit something
because it was — it had started swelling.”
Plaintiff also testified that her knee began swelling within a couple of
hours after the accident. Defendants
cross-examined plaintiff about, inter alia, her knee and her failure to
report it to physicians at the emergency room.
As there is nothing in the record to indicate that plaintiff’s
deposition testimony was incompetent and defendants have presented no argument
to this effect, we agree that the basis for Dr. Dalldorf’s theories as to
causation was supported by competent evidence, as opposed to mere speculation
or conjecture. See Hatcher v. Daniel Int’l Corp., 153 N.C. App.
776, 780, 571 S.E.2d 20, 23 (2002).
Dr. Dalldorf testified that although plaintiff had
chondromalacia patella prior to the motor vehicle accident, plaintiff’s motor
vehicle accident aggravated her pre-existing condition, and she would not have
needed the three surgeries but for the motor vehicle accident. Specifically, Dr. Dalldorf testified, “[M]y
opinion is that if she hadn’t been in the accident, she wouldn’t have needed the
subsequent surgeries. So I feel that
the accident caused her to need these additional operations.” Accordingly, we hold that the Full
Commission did not err in finding plaintiff’s right knee injuries and surgeries
to be compensable under our Workers’ Compensation Act.
Defendants next contend that the Full Commission’s Finding
of Fact number 24 — relating to the compensability of treatment performed on
plaintiff’s teeth — was not supported by competent evidence. Defendants list this assignment of error as
one of seventeen assignments of error supporting the second question presented
in their brief. However, defendants
make no argument in their brief relating to this assignment of error or the
Full Commission’s findings with respect to plaintiff’s teeth. “Assignments of error . . . in support of
which no reason or argument is stated or authority cited, will be taken as
abandoned.” N.C. R. App. P. 28(b)(6) (2006).
In their next argument, defendants contend that the Full Commission erred in concluding that plaintiff carried her burden of proving disability. We disagree.
“‘Disability,’ within the North Carolina Workers’
Compensation Act, ‘means incapacity because of injury to earn the wages which
the employee was receiving at the time of injury in the same or any other
employment.’” Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 493
(2005) (quoting N.C. Gen. Stat. §97-2(9)).
The burden of proving the existence and extent of a disability lies with
the employee seeking compensation. See id. (citing Hendrix v.
Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)). In order for a plaintiff to establish a
claim for either temporary or permanent disability under the Workers’
Compensation Act,
the Commission
must find: (1) that plaintiff was incapable after his injury of earning the
same wages he had earned before his injury in the same employment, (2) that
plaintiff was incapable after his injury of earning the same wages he had
earned before his injury in any other employment, and (3) that this
individual’s incapacity to earn was caused by plaintiff’s injury.
Hilliard
v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683
(1982). This Court has explained that
[t]he employee
may meet this burden in one of four ways: (1) the production of medical
evidence that he is physically or mentally, as a consequence of the work
related injury, incapable of work in any employment; (2) the production of
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)
the production of 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) the production of evidence that he
has obtained other employment at a wage less than that earned prior to the
injury.
Russell
v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457
(1993) (internal citations omitted).
In the case sub judice, the Full Commission properly
found that plaintiff satisfied her burden of proving her disability as a result
of her work-related injuries.
Plaintiff’s motor vehicle accident occurred on 16 May 2001, and
plaintiff’s family physician wrote her out of work from 17 May 2001 to 6 June
2001. Dr. Bowers, plaintiff’s breast
implant surgeon, wrote plaintiff out of work from 7 June 2001 to 24 July
2001. After injecting plaintiff’s right
knee, Dr. Dalldorf restricted plaintiff from working from 9 July 2001 through 6
August 2001. Plaintiff attempted to
return to work on 7 August 2001, but became disabled once again after knee
surgery on 9 October 2001. After this
first knee surgery, plaintiff worked one day in October 2001, four days in
November 2001, one day in January 2002, and two days in February 2002. Plaintiff did not earn wages from this work,
however, as defendants used plaintiff’s wages to pay her health insurance
premiums. Plaintiff worked and earned
wages on two occasions in June 2002 prior to her final period of ongoing
disability, which began on 25 June 2002 with a second knee surgery and
continued until the hearing on this matter in October 2003. However, plaintiff was able to work these
two days only because “sitter jobs” were available and offered to her. Other than these two days,
defendant-employer did not make such light-duty work available to
plaintiff. Following plaintiff’s June
2002 knee surgery, Dr. Dalldorf explained that plaintiff would have had
difficulty performing her regular job until at least February 2003. By March 2003, however, plaintiff was placed
on one-handed work restrictions by Dr. Kuzma for her carpal tunnel syndrome and
arthrosis, with such restrictions scheduled to continue until Dr. Kuzma’s
deposition in January 2004.
Plaintiff satisfied her initial burden of proving disability under the Workers’ Compensation Act. Although plaintiff returned to work on a few occasions during the time period at issue, such intermittent and infrequent work days do not constitute a successful trial return to work. Pursuant to North Carolina General Statutes, section 97-32.1,
an employee may
attempt a trial return to work for a period not to exceed nine months. During a trial return to work period, the
employee shall be paid any compensation which may be owed for partial
disability pursuant to [section] 97-30.
If the trial return to work is unsuccessful, the employee’s right to
continuing compensation under [section] 97-29 shall be unimpaired unless
terminated or suspended thereafter pursuant to the provisions of this Article.
N.C.
Gen. Stat. §97-32.1 (2001) (emphasis added).
As plaintiff carried her burden of proving disability, the
burden then shifted to defendants to disprove her claim. This Court has explained that
[i]n order to
rebut the ongoing presumption of disability by offering suitable employment, an
employer must present evidence that (1) suitable jobs are available for the
employee; (2) that the employee is capable of getting said job taking into
account the employee’s physical . . . limitations; and (3) that the job would
enable the employee to earn some wages.
Burchette
v. E. Coast Millwork Distribs., 149 N.C. App. 802, 806, 562 S.E.2d 459, 462
(2002) (internal quotation marks and citation omitted).
In the instant case, the Full Commission found that between
October 2001 and May 2002, plaintiff testified that she regularly contacted
defendant-employer seeking light-duty work, but defendant-employer rarely
offered her the modified work that she was physically capable of performing
based upon her restrictions. The Full
Commission also found that while the accounts manager for defendant-employer
testified that plaintiff had been offered light-duty assignments, the accounts
manager did not know the dates or nature of such job offers, and he admitted
that defendant-employer did not keep records of such offers. Because of his lack of personal knowledge,
his testimony was found not to be credible.
As “‘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, 414 (1998) (quoting Gallimore v. Marilyn’s
Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)), we hold that
defendants failed to carry their burden of proving that suitable jobs were
available to plaintiff. Defendants,
therefore, failed to rebut the ongoing presumption of disability, and
accordingly, this assignment of error is overruled.
In their final argument, defendants
contend that the Full Commission erred in failing to award defendants a lien on
all amounts accepted by plaintiff in her third-party settlement with
Nationwide. We agree.
Following her 16 May 2001 motor vehicle accident, plaintiff
filed a claim against Nationwide, the carrier of the uninsured motorist
coverage of the vehicle she had been driving.
As the Full Commission properly
found, “the settled claim filed by . . . plaintiff against Nationwide is, in
fact, a third-party claim.” The Full
Commission, however, concluded that “defendants shall be entitled to a credit,
if any, as duly awarded by a superior court pursuant to N.C. Gen. Stat.
§97-10.2.” Defendants contend that the
Full Commission’s solution is unacceptable as “[t]he statute anticipates that such
determination of the lien will take place before [an] employee accepts —
and presumably spends — the settlement.” (Emphasis in original). Therefore, defendants contend that, in the
event defendants are ordered to pay workers’ compensation benefits, “the only
appropriate remedy is to allow defendants an offset for all monies paid under
the Nationwide settlement.”
North Carolina General Statutes, section 97-10.2 governs the
respective rights of the employer and employee in the context of third-party
liability and settlements with third parties. See generally N.C. Gen.
Stat. §97-10.2 (2001). In accordance
with section 97-10.2, “decisions in
North Carolina have consistently upheld the workers’ compensation carrier’s
right to a lien on uninsured motorist benefits paid to the employee by or on behalf
of a third party as a result of the employee’s injury.” Liberty Mut. Ins.
Co. v. Ditillo, 125 N.C. App. 701, 704, 482 S.E.2d 743, 745 (1997), disc.
rev. improvidently allowed in part and rev’d in part on other grounds, 348
N.C. 247, 499 S.E.2d 764 (1998).
As provided in section 97-10.2(b), the injured employee has
the exclusive right to enforce the liability of a third party within the first
twelve months following the injury. See N.C. Gen. Stat. §97-10.2(b)
(2001). Furthermore,
[d]uring said
12-month period, and at any time thereafter if summons is issued against the
third party during said 12-month period, the employee or his personal
representative shall have the right to settle with the third party and to give
a valid and complete release of all claims to the third party by reason of such
injury or death, subject to the provisions of (h) below.
Id. (emphasis
added). Subsection (h), in turn,
provides that
[i]n any
proceeding against or settlement with the third party, every party to the claim
for compensation shall have a lien to the extent of his interest . . . upon any
payment made by the third party by reason of such injury or death . . . . Neither the employee or his personal
representative nor the employer shall make any settlement with or accept any
payment from the third party without the written consent of the other and
no release to or agreement with the third party shall be valid or enforceable
for any purpose unless both employer and employee or his personal
representative join therein . . . .
N.C.
Gen. Stat. §97-10.2(h) (2001) (emphasis added). “This statute, by its terms, makes it clear that neither the
employer nor the employee may make a valid settlement without the written
consent of the other.” Williams ex rel. Heidgerd v. Int’l Paper Co., 324
N.C. 567, 572, 380 S.E.2d 510, 513 (1989).
As our Supreme Court has explained, the Workers’ Compensation Act and
section 97-10.2 “were never intended to provide the employee with a windfall of
a recovery from both the employer and the third-party tort-feasor.” Radzisz
v. Harley Davidson, 346 N.C. 84, 89, 484 S.E.2d 566, 569 (1997).
In the case sub judice, the settlement between
plaintiff and Nationwide does not comply with section 97-10.2(h) because there
is no evidence in the record that defendant-employer gave written consent to
the settlement. Since “reaching a
[valid] final settlement between a third party and an employee is a
jurisdictional prerequisite to the judge being able to determine whether an
employer’s lien should be modified or eliminated,” Wilkerson v. Norfolk S.
Ry., 167 N.C. App. 607, 609, 606 S.E.2d 187, 189 (2004) (citation omitted),
the Full Commission erred in concluding that the defendants’ only remedy was to
apply to the superior court for a credit for amounts paid from Nationwide to
plaintiff. See id.; see also Williams, 324 N.C. at 572, 380
S.E.2d at 513. Therefore, to the extent
that the Full Commission determines on remand that plaintiff is entitled to
workers’ compensation payments by defendants, defendants are entitled to a lien
on all corresponding uninsured motorist benefits received by plaintiff, less
the portion expended for the cost of replacing plaintiff’s left breast implant.
See Tise v. Yates Constr. Co., Inc., 345 N.C. 456, 459, 480 S.E.2d 677,
679 (1997) (holding that damages awarded against a third party are to be
reduced only “by the amount which the employer would otherwise be entitled to
receive therefrom by way of subrogation”).
Accordingly, we reverse this portion of the Full Commission’s Opinion
and Award and remand to the Full
Commission for findings not inconsistent with this opinion.
Affirmed in part; Reversed in part; and Remanded.
Judge STEELMAN concurs.
Judge WYNN dissents in part; and concurs in results in part
in a separate opinion.
1. The Full Commission found that plaintiff had “worked a few days between May 20 and May 24, 2001, for which she received pay, although she had been restricted from work. . . . [P]laintiff also worked two half-days in July 2001, but was not paid for those days. Her wages were used to pay her health insurance premiums.”
NO. COA06-875
NORTH CAROLINA COURT OF APPEALS
Filed: 2 October
2007
PENNY M. RUMPLE RICHARDSON,
Employee,
Plaintiff-Appellant,
v. North Carolina Industrial Commission
I.C.
File No. 265022
MAXIM HEALTHCARE/
ALLEGIS GROUP,
Employer,
and
KEMPER INSURANCE COMPANY/
AMERICAN PROTECTION INSURANCE
c/o SPECIALTY RISK SERVICES,
Carrier,
Defendants-Appellees,
WYNN, Judge, dissenting in part and concurring in the results in part.
I disagree with the majority’s conclusion that the Full
Commission erred in failing to address whether Ms. Richardson timely reported
her worker’s compensation claim pursuant to Section 97-22. I therefore respectfully dissent from that
portion of the majority opinion.
The majority cites to Booker v. Duke Medical Center
for the proposition that the Full Commission should make findings as to an
employer’s ability to “provide immediate medical diagnosis and treatment with a
view to minimizing the seriousness of the injury” and to conduct “the earliest
possible investigation of the circumstances surrounding the injury.” 297 N.C. 458, 481-82, 256 S.E.2d 189, 203-04
(1979) (citation omitted). However, I
note that the Supreme Court also held in Booker that the defendant-employer
had waived the issue of notice by failing to raise it before the Full
Commission, and that the facts indicated that the defendant-employer did have
actual notice of the employee’s work-related illness. Id. at 482, 256 S.E.2d at 204. Thus, I find the language from Booker cited by the
majority to be dicta from the Supreme Court, offered only in the context of
discussing “[t]he purpose of the notice-of-injury requirement,” id. at
481, 256 S.E.2d at 204, and not stated as a directive to the trial court as to
what specific findings must be made.
Moreover, in Jones v. Lowe’s Companies, Inc.,
this Court referred to the “purpose of the statutory notice requirement” when
explaining how the Industrial Commission should determine whether prejudice
exists, not as a requirement as to what findings are necessary for the Full
Commission to make. 103 N.C. App. 73,
76-77, 404 S.E.2d 165, 167 (1991).
Indeed, we vacated and remanded the Industrial Commission’s Opinion and
Award in that case, finding that the record showed that the employee did have a
reasonable excuse for lack of written notice so the Commission had to make a
determination as to prejudice. Id.
at 76, 404 S.E.2d at 167. Significantly, however, we held that “the burden is
on Employer to show prejudice.” Id.
Likewise, the Supreme Court explicitly stated in Booker
its finding that a workers’ compensation claim 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.” 297 N.C. at 481, 256 S.E.2d at 203
(quotation omitted) (emphasis added).
The holdings from these cases make clear that the statute does not
require specific findings as to prejudice, only that the Commission find to its
“satisfaction” that the employer failed to show prejudice.
In the instant case, the Full Commission made the explicit
finding that:
The plaintiff
notified the defendant-employer about her accident on May 16, 2001, within
thirty minutes. Her notice was
timely. She gave written notice, by
filing a Form 18 in June 2002. In light
of the defendants’ actual notice of the plaintiff’s accident in May 2001, the
defendants were not prejudiced by her failure to immediately file a written
notice.
(Emphasis
added). I find this to be sufficient
under the Supreme Court’s language in Booker that a claim will not be
barred if “the Commission is satisfied that the employer has not been
prejudiced [by the failure to give written notice].” Id.
Additionally, I note that we held in Chavis v. TLC Home
Health Care that actual knowledge was a reasonable excuse for failure to
give written notice:
Here, the full
Commission found that [the defendant-employer] had actual notice of [the
plaintiff-employee’s] accident on the day it occurred. The full Commission found also that [the
defendant-employer] “offered no evidence that might tend to show that they were
prejudiced” by any delay in written notification. Although [the defendant-employer] now argues it was prejudiced
because it was unable to direct [the plaintiff-employee’s] medical treatment,
it did not argue this to the full Commission.
Also, [the defendant-employer] fails to assert how it was prejudiced by
[the plaintiff-employee] seeking medical treatment from her own doctor. We find competent evidence to support the
full Commission’s finding that [the defendant-employer] had actual knowledge of
[the plaintiff-employee’s] injury and was not prejudiced by any delay in
written notification.
172
N.C. App. 366, 378, 616 S.E.2d 403, 413 (2005) (citation omitted), appeal
dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006). This holding is binding on other panels of this Court and should
be followed, given that the Full Commission’s findings amounted to the
conclusion that Ms. Richardson had offered a reasonable excuse for the delay in
her written notice. See In re Appeal
From Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a
panel of the Court of Appeals has decided the same issue, albeit in a different
case, a subsequent panel of the same court is bound by that precedent, unless
it has been overturned by a higher court.”).
Accordingly, I would affirm the Full Commission’s Opinion
and Award as to the issues of notice and prejudice.
Furthermore, I concur in the results only of the other
determinations of the majority, including the dismissal of Maxim Healthcare’s
third assignment of error. I, too,
would dismiss the assignment of error contending that the Full Commission erred
in “omitting relevant stipulated documents from the transcript of the evidence
prepared by the Industrial Commission.”
Maxim Healthcare failed to present or discuss any actual argument as to
this assignment of error in their brief to this Court; accordingly, under our
Rules of Appellate Procedure, it must be dismissed. N.C. R. App. P. 28(b)(6).
Because Maxim Healthcare essentially abandoned this assignment of error
by failing to argue it, I would dispose of this assignment of error in the same
manner the majority has treated Maxim Healthcare’s assignment of error
concerning the Full Commission’s Finding of Fact number 24, namely, to dismiss
it as abandoned.