All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA08-211
Filed: 20 January 2009
LOLA DAUGHERTY,
Employee,
Plaintiff,
v.
I.C.
File No. 310451
CHERRY HOSPITAL/N.C. DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
Employer,
SELF-INSURED (KEY RISK MANAGEMENT,
Third-Party Administrator),
Defendant.
Appeal
by Plaintiff from Opinion and Award entered 21 September 2007 by the North
Carolina Industrial Commission. Heard in
the Court of Appeals 28 August 2008.
The Cole Law Firm,
PLLC, by Alden B. Cole, for Plaintiff-Appellant.
Attorney General
Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the
State.
STEPHENS,
Judge.
Facts
and Procedural History
Plaintiff
Lola Daugherty was employed by
Plaintiff
was treated at Wayne Psychiatric Associates, P.A., by Dr. Louis Gagliano on 22
December 1992. Dr. Gagliano diagnosed
Plaintiff with major depression, prescribed medication, and “[g]ave her off
work one week[.]” Plaintiff returned
to work on 4 January 1993. At an
examination by Dr. Gagliano on 5 January 1993, Plaintiff reported that,
although she had returned to work, she could not “stay and work again.” Dr. Gagliano ordered that she continue off
work for another month.
Plaintiff
was seen by Dr. Kurt Luedtke at the Waynesboro Family Clinic, P.A., on 14
January 1993. Dr. Luedtke extended
Plaintiff’s medical leave of absence through 19 February 1993, two weeks beyond
the leave ordered by Dr. Gagliano. On 5 February 1993, Plaintiff filed a Form 18
Notice of Accident to Employer and Claim of Employee, claiming benefits for
physical and psychological injury.
Plaintiff’s claim for physical injury was accepted, but her claim for
psychological injury was denied. Plaintiff did not return to work on 20
February 1993.
On 22
February 1993, Dr. Luedtke recommended that Plaintiff return to work with
several limitations. Ms. Dale Hilburn,
Director of Nursing at
Plaintiff
was assigned to work within the limitations prescribed by Dr. Luedtke as a
receptionist from 12 March through 30 June 1993. At the end of this assignment, Plaintiff was
expected to return to her routine duties as a Health Care Technician on the
Nursing Care Unit.
By
letter to the North Carolina Attorney General’s Office also dated 2 March 1993,
Dr. Luedtke opined that “it is unequivocally affirmed that each and every
psychiatric symptom exhibited by [Plaintiff] subsequent to her attack and
harassment at [Cherry Hospital] is a direct result of said attack”
and “strongly recommended that [Plaintiff] receive Workman’s [sic] Compensation
for work related condition.”
By
letter dated 15 March 1993 from the Office of the Attorney General to Plaintiff’s
attorney, Cecil P. Merritt, Defendant refused to accept Plaintiff’s claim for
benefits for psychological injury based on Dr. Luedtke’s opinion. Defendant instead advised that it would seek
a second opinion on the causal relationship, if any, between the attack on 16
November 1992 and Plaintiff’s psychological problems and alleged
disability. Bernice George of
Defendant
requested that Plaintiff see Dr. Gagliano for a second opinion. By letter dated 5 April 1993, Plaintiff,
through her attorney, refused to submit to an examination by Dr. Gagliano. Defendant informed Plaintiff on 15 April 1993
“that pursuant to [N.C. Gen. Stat. §] 97-27(a), [Plaintiff’s] right to take or
prosecute any proceedings under the Worker’s Compensation Act is suspended.”
On 1
July 1993, Plaintiff reported to work but refused to resume her position in the
Nursing Care Unit. On 7 July 1993,
Plaintiff consented to work in the Infirmary Unit. Around August of 1993, Plaintiff’s attorney
ceased his representation of her before passing away.
By
letter dated 3 November 1994, Plaintiff resigned from her position as a Health
Care Technician at
I am currently in the LPN Program and
need the weekends off to complete my Clinical.
The unavailability of any alternatives for a work schedule leave[s] me
no choice but to submit my resignation.
My greatest reward has been working with
the patients.
If in the future you should need me,
please do not hesitate to call.
On 17
January 2006, Plaintiff filed a Form 33 Request that Claim be Assigned for
Hearing, seeking retroactive and ongoing medical and indemnity compensation as
a result of her injury on 16 November 1992.
Defendant’s first notice that Plaintiff was seeking further medical
treatment was by copy of the Form 33 received in May 2006. Defendant filed a Form 33R Response to
Request that Claim be Assigned for Hearing on 8 May 2006, stating that
Plaintiff’s claim was time barred pursuant to N.C. Gen. Stat. §§97-22, 97-24,
and 97-25.1. The case was bifurcated so
the issue of whether Plaintiff’s claim was time barred could first be
addressed. On 24 October 2006, a hearing was held before Deputy
Commissioner Ronnie Rowell. By Opinion
and Award filed 29 November 2006, Deputy Commissioner Rowell concluded that
Plaintiff’s claim was not time barred.
Defendant timely appealed this decision to the Full Commission. The case was heard by the Full Commission on
19 July 2007. By Opinion and Award filed
21 September 2007, then Chairman Buck Lattimore, writing for the Full
Commission, filed an Opinion and Award concluding that Plaintiff’s claim was
barred under the doctrine of laches and dismissing the claim with
prejudice. From the Opinion and Award of
the Full Commission, Plaintiff appeals.
Discussion
Appellate
review of an Opinion and Award of the Full Commission is limited to a
determination of whether the Full Commission’s findings of fact are supported
by any competent evidence, and whether those findings support the Full
Commission’s legal conclusions. Adams
v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh’g
denied, 350 N.C. 108, 532 S.E.2d 522 (1999). “The findings of fact by the Industrial
Commission are conclusive on appeal if supported by any competent evidence.” Gallimore
v. Marilyn’s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). “The Commission is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.”
Relying
on case law from
Laches
is an equitable remedy that is applied “where lapse of time has resulted in
some change in the condition of the property or in the relations of the parties
which would make it unjust to permit the prosecution of the claim[.]” Williams v. Blue Cross Blue Shield,
357 N.C. 170, 181, 581 S.E.2d 415, 424 (2003) (quotation marks and citation
omitted). “[W]hat delay will constitute
laches depends upon the facts and circumstances of each case.”
Equity supplements the law. Its office is to supply defects in the law
where, by reason of its universality, it is deficient, to the end that rights
may be protected and justice may be done as between litigants.
Its character as the complement merely of
legal jurisdiction rests in the fact that it seeks to reach and do complete
justice where courts of law, through the inflexibility of their rules and want
of power to adapt their judgments to the special circumstances of the case, are
incompetent so to do. It was never
intended that it should, and it will never be permitted to, override or set at
naught a positive statutory provision.
It is an instrument of remedial justice within and not in opposition to
the law.
Zebulon v. Dawson, 216 N.C. 520, 522-23, 5 S.E.2d 535, 537
(1939). “Equity will not lend its aid in
any case where the party seeking it has a full and complete remedy at law.” Centre Dev. Co. v. Cty. of Wilson, 44
N.C. App. 469, 470, 261 S.E.2d 275, 276, disc. review denied and appeal
dismissed, 299 N.C. 735, 267 S.E.2d 660 (1980). The North Carolina Supreme Court has upheld
the application of the equitable doctrine of estoppel in workers’ compensation
cases. In Biddix v. Rex Mills, Inc.,
237 N.C. 660, 75 S.E.2d 777 (1953), our Supreme Court expressly held that “[t]he
[equitable] law of estoppel applies in [workers’] compensation proceedings as
in all other cases.”
Following
the rule articulated in Biddix, our Supreme Court in Gore v. Myrtle/Mueller,
362 N.C. 27, 653 S.E.2d 400 (2007), concluded that the employer in that case
should be equitably estopped from asserting the two-year time limitation of
Section 97-24 as a bar to the employee’s recovery.
Based
on the above-cited law regarding the application of equitable remedies, and the
precedent set by the North Carolina Supreme Court, we hold that the equitable
law of laches applies in workers’ compensation proceedings as in all other
cases. Laches may “supplement[] the
law[,]” Zebulon, 216 N.C. at 522, 5 S.E.2d at 537, and “what delay will
constitute laches depends upon the facts and circumstances of each case.” Williams, 357 N.C. at 181, 581 S.E.2d
at 424.
We
turn now to a consideration of whether the doctrine of laches was correctly
applied by the Full Commission in this case.
“Equity
will not lend its aid in any case where the party seeking it has a full and
complete remedy at law.” Jefferson
Standard Life Ins. Co. v.
N.C.
Gen. Stat. §97-80(a) grants the Industrial Commission the power to make rules
consistent with the Workers’ Compensation Act in order to carry out the Act’s
provisions. Under the authority of this
statute, the Commission adopted Rule 613 which provides in part:
Upon proper notice and an opportunity to
be heard, any claim may be dismissed with or without prejudice by the
Industrial Commission on its own motion or by motion of any party for failure
to prosecute or to comply with these Rules or any Order of the Commission.
4 N.C.A.C.
10A.0613(a)(3) (2006). A workers’
compensation case may be involuntarily dismissed with prejudice for failure to
prosecute pursuant to Rule 613 if the Industrial Commission finds: (1)
plaintiff acted in a manner which deliberately or unreasonably delayed the
matter; (2) defendant was prejudiced by plaintiff’s delay; and (3) sanctions
short of dismissal would not suffice. See
Lee v. Roses, 162 N.C. App. 129, 133, 590 S.E.2d 404, 407 (2004) (stating
that the Industrial Commission must address these three factors in its order
dismissing a claim with prejudice for failure to prosecute pursuant to Rule
613). Plaintiff argues that Rule 613
provides the “proper procedure” and “proper remedy at law” for determination of
the issues raised by Plaintiff’s delay in pursuing her claim. We agree.
In
this case, by letter dated 15 April 1993, Defendant informed Plaintiff’s
attorney “that pursuant to [N.C. Gen. Stat. §] 97-27(a), [Plaintiff’s] right to
take or prosecute any proceedings under the Worker’s Compensation Act is
suspended.” Plaintiff took no
further action to pursue her claim until 17 January 2006, when she filed a Form
33 hearing request. While Defendant was
not required to file a Rule 613 motion to dismiss to preempt Plaintiff’s filing
of the Form 33, upon Plaintiff’s filing the Form 33, Rule 613 allowed Defendant
to file a motion to dismiss for failure to prosecute. Defendant did not do so. However, Rule 613 also allows the Commission
on its own motion and in its discretion to dismiss claims that are not timely
prosecuted.
Unlike
in Biddix and Gore where neither the General Statutes nor the
Workers’ Compensation Rules provide a remedy for an employee whose claim is
barred because he or she failed, as a result of the employer’s conduct, to file
a claim within the period set out in N.C. Gen. Stat. §97-24, Rule 613 provides
Defendant with a complete remedy against Plaintiff’s detrimental delay in
prosecuting her claim. Accordingly, we
hold the Industrial Commission erred in applying the doctrine of laches to bar
Plaintiff’s claim.
In its
Opinion and Award, the Full Commission made the following findings of fact
which are determinative of two of the factors necessary to support an
involuntary dismissal of Plaintiff’s claim with prejudice pursuant to Rule 613
for failure to prosecute:
16. On January 1, 2006, almost 13 years after
plaintiff’s psychological benefits were denied, plaintiff filed a Form 33
seeking medical and indemnity compensation as a result of the November 16, 1992
injury and retroactive to 1993. This was
defendant’s first notice that plaintiff was seeking further benefits since her
claim for psychological treatment was denied in 1993. The undersigned find that plaintiff’s 13-year
delay in prosecuting her claim is unreasonable, and that based upon plaintiff’s
testimony, plaintiff was aware of her condition requiring psychological
treatment during this 13-year time period.
. . .
.
20. The undersigned find that plaintiff’s
unreasonable delay has hindered defendant’s ability to investigate her claim
and prevented defendant from providing treatment to lessen plaintiff’s period
of disability.
The Full Commission
thus concluded:[Note 3]
6. . . . Although plaintiff knew of the
existence of the grounds for a potential claim against defendant for her
November 16, 1992 injury, plaintiff did not pursue her
claim . . . until 2006.
Plaintiff even continued to work for defendant until she voluntarily
resigned in November of 1994. Given the fact that plaintiff was aware that she
had a denied workers’ compensation claim, continued to receive treatment at her
own expense, and waited thirteen years to seek compensation, plaintiff’s delay
in time in prosecuting her claim was unreasonable and caused a change in the
relationship with the parties.
7. Plaintiff’s unreasonable delay in the
prosecution of her workers’ compensation claim has disadvantaged and prejudiced
defendant. Defendant has been denied the
opportunity to further investigate plaintiff’s claim, direct medical treatment,
and to provide medical treatment necessary to effect a cure, provide relief or
lessen plaintiff’s period of disability.
A thirteen-year delay such as plaintiff’s makes it difficult for
defendant to obtain plaintiff’s medical history dating back thirteen years,
particularly when plaintiff has not treated with some of her doctors for over
seven years. Further, defendant[] [was]
denied the opportunity to mitigate any exacerbations of plaintiff’s condition
potentially related to plaintiff’s workers’ compensation claim. . . .
Plaintiff
argues that “[f]indings of fact sixteen and twenty are unsupported by the
evidence of record[.]” We disagree. The record establishes that Defendant denied
Plaintiff’s claim for psychological benefits on 15 April 1993. Plaintiff filed a Form 33 seeking medical and
indemnity compensation in January 2006,[Note
4] almost 13 years later. During
this time, Plaintiff was treated by several different doctors for her alleged
psychological injuries, although she could not remember when she saw these
doctors and she did not know who paid for the visits. She said she had been prescribed “[m]edication
for anxiety, depression and stuff like that[,]” but claimed not to know “what
all the medicine is.” She said
she could not remember if she had worked anywhere since resigning her position
with Defendant. Plaintiff
testified that she had made attempts to contact Defendant during the 13-year
delay, but she could not recall specific information regarding these
attempts. The Full Commission found that
“[P]laintiff’s testimony is not credible” and gave “greater weight to the
testimony of Lisa Justice[.]”
Lisa
Justice, a claims administrator for Key Risk Management, testified that she
became involved in the case on 10 May 2006 when she received the Form 33. Key Risk Management had no record of the
claim and Ms. Justice had never spoken to Plaintiff prior to receiving the Form
33. When Ms. Justice called
We
conclude that findings of fact sixteen and twenty are supported by competent
record evidence, and that the findings of fact support the conclusions of
law. Furthermore, although Plaintiff
assigns as error conclusions of law numbers six and seven, on the grounds that
they are not supported by record evidence and are contrary to law, Plaintiff
fails to argue these assignments of error in her brief and they are deemed abandoned. N.C. R. App. P. 28(b)(6).
The
above-stated findings and conclusions determine that Plaintiff acted in a
manner which deliberately or unreasonably delayed her case and that Defendant
was prejudiced by Plaintiff’s delay. Lee,
162 N.C. App. at 133, 590 S.E.2d at 407.
The Full Commission did not address, however, whether sanctions short of
dismissal would be sufficient in this case, thus requiring a remand of this
matter for further determination by the Full Commission.
Accordingly,
that part of the Full Commission’s Opinion and Award which dismissed Plaintiff’s
claim with prejudice based on laches is reversed. This matter is remanded to the Full
Commission for further proceedings under Rule 613 consistent with this
Opinion. In light of this holding, we
need not address Plaintiff’s additional assignments of error.
REVERSED
in part and REMANDED for further proceedings.
Judges
STEELMAN and GEER concur.
NOTES
[1]1. N.C.
Gen. Stat. §97-24 contains a two-year statute of limitations for the pursuit of
certain workers’ compensation benefits. See
also N.C. Gen. Stat. §97-58.
[1]2. This
statute provides in part: “After an injury, and so long as he claims
compensation, the employee, if so requested by his employer . . . shall . . .
submit himself to examination, at reasonable times and places, by a duly
qualified physician or surgeon designated and paid by the employer or the Industrial
Commission. . . . If the employee
refuses . . . his right to compensation and his right to take or prosecute any
proceedings under this Article shall be suspended until such refusal or
objection ceases . . . .” N.C. Gen.
Stat. §97-27(a) (1993).
[1]3. These
conclusions are actually mixed findings of fact and conclusions of law.
[1]4. Although
the Full Commission found that Plaintiff had filed her Form 33 on 1 January
2006, the record reveals the Form 33 was filed on 17 January 2006. Thus, Plaintiff’s delay in filing the form
was slightly longer than calculated by the Full Commission.