All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
PENNY M. RUMPLE RICHARDSON,
v. North Carolina Industrial Commission
I.C. File No. 265022
KEMPER INSURANCE COMPANY/
AMERICAN PROTECTION INSURANCE
c/o SPECIALTY RISK SERVICES,
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.
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. Our Supreme Court has explained that
[i]f an injured employee establishes a compensable injury, the burden shifts to the employer to rebut the employee’s evidence. As to the injured employee’s ability to work, this burden requires the employer to come forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.
Johnson v. S. Tire Sales & Serv., 358 N.C. 701, 708, 599 S.E.2d 508, 513 (2004) (internal quotation marks and citations 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 plaintiff was capable of obtaining suitable employment. 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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
PENNY M. RUMPLE RICHARDSON,
v. North Carolina Industrial Commission
I.C. File No. 265022
KEMPER INSURANCE COMPANY/
AMERICAN PROTECTION INSURANCE
c/o SPECIALTY RISK SERVICES,
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.
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.”