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are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
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.
NO.
COA06-875
NORTH
CAROLINA COURT OF APPEALS
Filed: 5 February 2008
PENNY M.
RUMPLE RICHARDSON,
Employee,
Plaintiff-Appellee,
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-Appellants,
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-appellants.
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.
[DEFENSE
COUNSEL]: And so am I also correct that we must come to the conclusion, then,
that the rippling [in the left breast] was due to underinflation, or
underfilling?
[DR. BOWERS]:
Right.
[DEFENSE
COUNSEL]: Okay. So as far as the left one, your — would it be your opinion that
the left one was not ruptured by this accident? It wasn’t ruptured at all,
correct?
[DR. BOWERS]:
It wasn’t — it did not appear to me that it was ruptured at
all.
[DEFENSE
COUNSEL]: Okay. And I take it
that you cannot state more than 50 percent that the rippling was due to the
accident as opposed to due to underfilling?
[DR. BOWERS]:
Right. That’s
correct.
(Emphasis
added). Notwithstanding the Full
Commission’s finding that “[t]he damage to plaintiff’s breast implants
were [sic] caused or aggravated by the accident” (emphasis added), Dr.
Bowers consistently distinguished between the two breast
implants.
[PLAINTIFF’S
COUNSEL]: Okay. And now let me go
back and review your testimony regarding the left versus the right breast. And I guess what I’m trying to figure
out is, are you giving two different opinions, left versus right, or is your
opinion the same for both the left and right concerning whether the trauma
either caused or aggravated —
[DR. BOWERS]:
Well, after — after the surgery I think the left — the left implant was not
affected by the — by the injury because the left implant, I didn’t see any
evidence of a leak in it. The right
implant, I think, is the one where I think it potentially was damaged by the —
by the accident. Or there was some
sort of damage to the right impact [sic] such that it had been affected in a way
that the left implant had not been.
And I think what I was seeing with the left implant was simply that there
was just less saline than the 475 cc’s.
(Emphasis
added).
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.
Instead, he stated unequivocally that the rippling in the left breast
most likely was due to the original implant’s being underfilled and that the
rippling was not caused or aggravated by the accident. 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.
As provided
in section 97-10.2(b), an 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). Pursuant to subsection (h),
“[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.” N.C. Gen. Stat. _ 97-10.2(h)
(2001) (emphasis added). Although
this subsection provides that an “employee . . . shall [not] make any settlement
with or accept any payment from the third party without the written consent of
the [employer],” the statute further provides that employer consent to a
third-party settlement is not required “[i]f either party follows the provisions
of subsection (j) of this section.” N.C. Gen. Stat. §97-10.2(h) (2001). Pursuant to subsection
(j),
[n]otwithstanding
any other subsection in this section, in the event that a judgment is obtained
by the employee in an action against a third party, or in the event that a
settlement has been agreed upon by the employee and the third party, either
party may apply to the resident superior court judge of the county in which the
cause of action arose, where the injured employee resides or the presiding judge
before whom the cause of action is pending, to determine the subrogation
amount. After notice to the
employer and the insurance carrier, after an opportunity to be heard by all
interested parties, and with or without the consent of the employer, the judge
shall determine, in his discretion, the amount, if any, of the employer’s lien,
whether based on accrued or prospective workers’ compensation benefits, and the
amount of cost of the third-party litigation to be shared between the employee
and employer.
N.C. Gen.
Stat. _ 97-10.2(j)
(2001). Therefore, either party may
apply to the superior court for a determination of the subrogation amount,
regardless of whether both parties consented to the third-party settlement. Although “cognizant of the potential for
plaintiff to receive a double recovery via the operation of [section]
97-10.2(j)[,] . . . we [previously have] determined that the statute
contemplated and allowed for such a recovery if justified by the equities of the
case.” Wiggins v. Bushranger Fence Co., 126 N.C. App. 74, 7778, 483
S.E.2d 450, 452, disc. rev. denied, 346 N.C. 556, 488 S.E.2d 825
(1997).
In the case
sub judice, 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 [North Carolina General Statutes, section]
97-10.2.” (Emphasis added).
Contrary to
the Full Commission’s conclusion, defendants’ credit does not depend upon an
award by the superior court, since section 97-10.2(h) clarifies that the lien is
automatic. See N.C. Gen. Stat. _ 97-10.2(h)
(2001) (providing that “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” (emphasis added)).
Instead, plaintiff may apply to the superior court for a determination of
the lien amount pursuant to section 97-10.2(j), which this Court has described
“as permitting the superior court to adjust the amount of a subrogation
lien.” Ales v. T.A. Loving Co., 163 N.C. App. 350, 353, 593 S.E.2d 453,
455 (2004) (emphasis added). Unless
and until plaintiff applies to the superior court for a determination of the
subrogation amount, 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 WYNN
dissents in part and concurs in the results only in part in a separate
opinion.
Judge
STEELMAN concurs.
NO.
COA06-875
NORTH
CAROLINA COURT OF APPEALS
Filed: 5 February 2008
PENNY M.
RUMPLE RICHARDSON,
Employee,
Plaintiff-Appellee,
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-Appellants,
WYNN, Judge,
dissenting in part and concurring in the results only in
part.
Because I
find that the majority reweighs the evidence in this case and improperly
substitutes its judgment for that of the Full Commission, I respectfully
dissent.
I note at the
outset that this Court’s review of an Opinion and Award of the Full Commission
is “limited to reviewing whether any competent evidence supports the
Commission’s findings of fact and whether the findings of fact support the
Commission’s conclusions of law.”
Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549,
553 (2000). Most significantly,
this Court “does not have the right to weigh the evidence and decide the issue
on the basis of its weight. The
court’s duty goes no further than to determine whether the record contains
any evidence tending to support the finding.” Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 414 (1998) (emphasis added) (quoting Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)), reh’g
denied, 350 N.C. 108, 532 S.E.2d 522 (1999).
Thus, if
there is any evidence at all, taken in the light most favorable to the
non-moving party, the finding of fact made by the Full Commission stands, even
if there is substantial evidence supporting the opposing position. Id. Findings may therefore be set aside on
appeal only “where there is a complete lack of competent evidence to
support them.” Rhodes v. Price
Bros., 175 N.C. App. 219, 221, 622 S.E.2d 710, 712 (2005) (emphasis added
and quotation omitted).
I.
First, 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 North Carolina General Statute
§97-22.
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, 256 S.E.2d 189, 204
(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, 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 worker’s
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 (emphasis added and quotation omitted). 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).[Note 2] 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.
II.
I agree with
the majority’s conclusion to affirm the Full Commission’s award of compensation
for Ms. Richardson’s treatment for headaches, carpal tunnel syndrome in her
right wrist and thumb, treatment and surgeries on her right knee, and treatment
and procedures on her teeth.
However, I would likewise affirm the Full Commission’s award of
compensation for the replacement of both of Ms. Richardson’s breast implants,
rather than only the right breast implant.
As previously
noted, this Court’s review of a Full Commission Opinion and Award is strictly
limited to determining “whether any competent evidence supports the Commission’s
findings of fact and whether the findings of fact support the Commission’s
conclusions of law.” Deese,
352 N.C. at 116, 530 S.E.2d at 553.
We are therefore precluded from reweighing the evidence and instead
review the record only to verify that it “contains any evidence tending to
support the finding.” Adams,
349 N.C. at 681, 509 S.E.2d at 414.
Additionally,
under our legal framework, “[t]he objective of any proceeding to rectify a
wrongful injury resulting in loss is to restore the victim to his original
condition, to give back to him that which was lost as far as it may be done by
compensation in money.” Phillips
v. Chesson, 231 N.C. 566, 571, 58 S.E.2d 343, 347 (1950). Put more simply, “[t]he goal is to make
the plaintiff whole.” Shaver v.
N.C. Monroe Constr. Co., 63 N.C. App. 605, 615, 306 S.E.2d 519, 526 (1983),
disc. review denied, 310 N.C. 154, 311 S.E.2d 294 (1984); see also
Watson v. Dixon, 352 N.C. 343, 347, 532 S.E.2d 175, 177-78 (2000)
(citing Bowen v. Fidelity Bank, 209 N.C. 140, 144, 183 S.E. 266, 268
(1936) (“The purpose of the law is to place the party as near as may be in the
condition which he would have occupied had he not suffered the injury complained
of.”)). Workers’ compensation cases
are a subset of these compensatory damages cases; they seek to compensate the
employee for medical expenses and the loss of earning capacity while also
limiting the liability of employers.
See Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 190, 345 S.E.2d
374, 381 (1986). Thus, although an
employee may not recover traditional monetary compensatory damages, the Workers’
Compensation Act nevertheless seeks to make an injured employee whole by
providing for her medical treatment to restore her, to the extent possible, to
the same condition she was in prior to a compensable accident and
injury.
This is true
even when the injury merely accelerated or aggravated an employee’s pre-existing
condition. See Davis v. Columbus
County Schs., 175 N.C. App. 95, 101, 622 S.E.2d 671, 676 (2005) (citing
Anderson v. Northwestern Motor Co., 233 N.C. 372, 374, 64 S.E.2d 265, 267
(1951)). “In such a case, where an
injury has aggravated an existing condition and thus proximately caused the
incapacity, the relative contributions of the accident and the pre-existing
condition will not be weighed.”
Wilder v. Barbour Boat Works, 84 N.C. App. 188, 196, 352 S.E.2d
690, 694 (1987) (citation omitted).
In the
instant case, the relevant finding by the Full Commission
states:
10. The
damage to plaintiff’s breast implants were caused or aggravated by the
accident. Dr. Bowers testified
that the accident caused the leak he found in the plaintiff’s right breast
implant. He was not certain whether
the accident caused the rippling in her left breast implant or whether the
rippling was from normal wear and tear.
However, Dr. Bowers noted that, even if there was deterioration of the
implants pre-accident, the trauma to the plaintiff’s chest would “most
definitely” have accelerated or aggravated the process. Dr. Bowers replaced both implants,
even though only one had ruptured, because the replacements would have to be
symmetrical and evenly matched.
Replacement of one implant required replacement of
both.
(Emphasis
added). In his deposition, Dr.
Bowers stated that he did not believe the left implant had been ruptured, but
“it did have that rippling around the periphery.” Although Dr. Bowers did not have the
medical records from Ms. Richardson’s first implant surgery, he made the
assumption that she had had 475 cc implants that were underfilled, which could
lead to the rippling effect she had noticed – but he also stated that he was not
certain as to the exact amount of fluid Ms. Richardson had in her first
implants. Dr. Bowers also confirmed
that the right breast implant did appear to be ruptured based on the amount of
fluid it was missing, such that there was a lot less fluid in the right implant
than in the left implant.
Ms.
Richardson testified that she had not had any problems with her breast implants
prior to the accident and had been satisfied with the result of that earlier
surgery. She further stated that
she believed her implants were affected by the accident because “they had
decreased. You could see rippling
that you could not see before.”
Additionally, her bra size had changed. Ms. Richardson recounted that she had
her breast implants replaced with implants of the same size, because they had
decreased in size after the accident and she wanted “[t]o achieve the look that
[she] had before the wreck.”
This
testimony was corroborated by the notes Dr. Bowers took following his initial
consultation with Ms. Richardson, which likewise recounted that she reported a
decrease in breast size and rippling in both implants following the
accident. Moreover, Dr. Bowers
wrote that, “[i]f these were initially 475 cc implants, then clearly they are
smaller than they were.” Following
the surgery, Dr. Bowers recorded “[v]ery nice symmetry” and that the procedure
“seems to have corrected the deficit which she noticed post car
accident.”
I believe
this testimony and evidence supports the Full Commission’s finding that
replacement of both implants was necessary to ensure that they would be
“symmetrical and evenly matched[,]” and that “[r]eplacement of one implant
required replacement of the both.”
Given that the right implant was ruptured and necessitated replacement,
the sole means of ensuring that both implants would be symmetrical – and in the
condition they were prior to Ms. Richardson’s car accident - was to replace and
fill both to the same saline level.
The majority’s holding would force any woman who suffered this type of
compensable injury, including one who had undergone reconstructive surgery
following a double mastectomy, to choose between a noticeably asymmetrical
appearance or out-of-pocket payment for treatment necessary due only to a
compensable injury. I cannot agree
with such an outcome. Accordingly,
I would therefore affirm the Full Commission in this
regard.
III.
Next, I find
that the Full Commission’s Opinion and Award recognizes that Maxim Healthcare
does, in fact, have a lien on Ms. Richardson’s third-party settlement with
Nationwide Insurance, and that it further allows for either party to apply to
the Superior Court to subsequently determine the amount of that lien. This conclusion is exactly in line with
the language and directive of North Carolina General Statute §97-10.2
(2005). Accordingly, I see no error
or reason to reverse and remand on this issue and would instead affirm the Full
Commission.
As noted by
the majority, section 97-10.2(b) gives an employee the exclusive right to
enforce the liability of a third party for an injury. N.C. Gen. Stat. §97-10.2(b). The statute further dictates that “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 . . . and such lien
may be enforced against any person receiving such funds.” Id. §97-10.2(h). Although the written consent of the
employer is generally required before a third-party settlement is valid and
enforceable, see id., the statute also allows an exception for the
employee to settle with the third party and then have either the employer or the
employee “apply to the resident superior court judge . . . to determine the
subrogation amount[.]” Id. §§97-10.2(h)(2), (j). The statute includes factors that the
trial court should consider in using its discretion to determine the amount of
the lien the employer should have against the employee’s third-party
settlement. Id.
§97-10.2(j).
In the
instant case, the Full Commission’s conclusion states:
5. Plaintiff’s settled claim against Nationwide Insurance is a third-party claim and, thus, N.C. Gen. Stat. §97-10.2 applies to provide the defendants a statutory lien.
N.C. Gen.
Stat. §97-10.2(j) provides in pertinent part:
[I]n the
event that a settlement has been agreed upon by the employee and the third
party, either party may apply to the resident superior court judge of the county
in which the cause of action arose, where the injured employee resides or the
presiding judge before whom the cause of action is pending, to determine the
subrogation amount.
Thus, the
defendants may be entitled to a credit for plaintiff’s third party recovery
pursuant to N.C. Gen. Stat. §97-10.2(j).
From its
plain language, the Opinion and Award “provide[s] the defendants a statutory
lien[]” against Ms. Richardson’s third-party settlement with Nationwide
Insurance. Nevertheless, by stating
only that “the defendants may be entitled to a credit[,]” the Full
Commission complied with the express statutory directive that it is the
responsibility of a Superior Court judge – not that of the Full Commission – to
determine the actual amount of the lien.
This
conclusion of law fully comports with the applicable statute; the Full
Commission recognized that Maxim Healthcare has an automatic statutory lien on
Ms. Richardson’s settlement but left the amount to be determined by a Superior
Court judge upon application by either party. As such, the Full Commission has already
done in its Opinion and Award what the majority would direct them to do on
remand. I would therefore affirm
the Full Commission.
IV.
Finally, I
concur in the result only of 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.”
2. I note, too, that this finding is corroborated by the following statement by the Deputy Commissioner who heard this case, with respect to the issue of notice:
Here, the
testimony is that [Maxim Healthcare] had actual notice. . . . Now, they did
nothing. Again, we had somebody who
went to the hospital. At a very
minimum, they knew at that point that they had hospital bills they needed to
pay. . . . Now, . . . each side is saying that neither did what they should have
done. Be that as it may, there was
enough notice given here that somebody on [Maxim Healthcare’s] part should have
done something. They didn’t. So, no, [Ms. Richardson] didn’t do
everything she should have done, but she did enough. . . . And again, [Maxim
Healthcare] knew of the injury by accident on the date of the accident. If they didn’t do any investigation to
determine what – and the extent of her injuries, it’s a little late for them to
complain now or a year or so later, after she filed an 18, . . ., when they had
an opportunity, because of their notes, to investigate the claim, but they did
not.