NO. COA99-932

NORTH CAROLINA COURT OF APPEALS

Filed: 1 August 2000

SHEILA JEAN ROYCE,

Employee-Plaintiff

v.

RUSHCO FOOD STORES, INC.,

Employer-Defendant

CASUALTY RECIPROCAL EXCHANGE

and

LIBERTY MUTUAL INSURANCE COMPANY,

Carriers-Defendants

North Carolina Industrial Commission
I.C. File Nos. 441822, 442796, 443258, & 522217

Appeal by plaintiff and defendants Rushco Food Stores, Inc. (Rushco) and Casualty Reciprocal Exchange (Casualty) from judgment entered 18 February 1999 by the North Carolina Industrial Commission (Commission). Heard in the Court of Appeals 11 May 2000.

WALKER, Judge.

Plaintiff sustained compensable injuries to her left ankle on 15 May 1993, 5 February 1994, and 23 April 1994, resulting in an ulcer. Defendant Liberty Mutual Insurance Co. (Liberty) was the carrier on risk for the first compensable injury, and defendant Casualty was the carrier for the second and third compensable injuries. On 16 February 1995, plaintiff’s ankle "re-ulcerated, spontaneously rupturing and bleeding." Plaintiff sought benefits which were denied by defendants. After a hearing, the deputy commissioner found that plaintiff was entitled to temporary total disability from 16 February 1995 until 7 July 1995. The deputy commissioner then concluded that the "two defendant-carriers are jointly and severally liable" and that each "shall pay at least fifty percent of the compensation due under this Opinion and Award."

Each party appealed to the Commission. Prior to the hearing before the Commission, plaintiff and defendant Liberty executed a compromise settlement agreement which was approved by the Commission on 18 July 1997. On 18 February 1999, the Commission affirmed the deputy commissioner’s decision, with "minor modifications."

The Commission’s findings include the following:

Based on these findings, the Commission concluded:

Defendants assign as error the Commission’s: (1) finding that the 1995 ankle bleed was the direct and natural result of the 23 April 1994 injury and that defendant Casualty is liable for any benefits after the 1995 bleeding incident; (2) finding that plaintiff was disabled from 16 February 1995 until 7 July 1995; and (3) failing to conclude that defendant Casualty is entitled to a $3,500.00 credit for plaintiff’s settlement with defendant Liberty. Plaintiff assigns that the Commission erred in: (1) finding that she had reached maximum medical improvement on 7 July 1995; (2) placing the burden on her to prove disability after 7 July 1995; and (3) finding that she did not meet her burden of proving that it would be futile for her to seek other employment.

When considering an appeal from the Commission, this Court is limited to two questions: (1) whether competent evidence exists to support the Commission’s findings, and (2) whether the Commission’s findings justify its conclusions and decision. Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 496 S.E.2d 790 (1998). Findings of fact by the Commission, if supported by competent evidence, are conclusive on appeal even though there is evidence which would support a contrary finding. Bullman v. Highway Comm., 18 N.C. App. 94, 195 S.E.2d 803 (1973).

We first address defendants’ contention that the Commission erred in finding that the 1995 ankle bleed was the direct and natural result of the 23 April 1994 injury and that defendant Casualty was liable for any benefits after the 1995 bleeding incident. Defendants argue that since there was no evidence that the "23 April 1994 accident contributed in any greater degree to the 1995 spontaneous bleed or plaintiff’s continuing problems than the other two injuries," apportionment of the award was proper. In the recent decision of Smith v. Champion Int’l, 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999), citing Hoyle v. Carolina Associated Mills, 122 N.C. App. 462, 465-466, 470 S.E.2d 357, 359 (1996), this Court held:

Furthermore, in Counts v. Black & Decker Corp., 121 N.C. App. 387, 390-391, 465 S.E.2d 343, 346, disc. review denied, 343 N.C. 305,471 S.E.2d 68 (1996)(citations omitted), this Court addressed the issue of apportionment, stating:

Here, the Commission relied on the testimony of Dr. Willard Thompson regarding causation. In his deposition, Dr. Thompson, plaintiff’s primary care physician since 1989, testified that each of plaintiff’s three prior ankle injuries aggravated her pre- existing condition and were significant contributing factors in her continuing problems with her non-healing ulcer. After reviewing plaintiff’s medical records, Dr. Adams testified that, in his opinion, "the two subsequent injuries in 1994 did not substantially contribute to the condition plaintiff incurred in 1995." However, Dr. Adams admitted that "he could not make a good estimate as to the cause of the 1995 condition because he did not examine plaintiff, and that Dr. Thompson was in a better position" to evaluate plaintiff.

Since the Commission was entitled to give greater weight to the testimony of Dr. Thompson, we conclude that there was competent evidence in the record to support the Commission’s finding that the "spontaneous bleed in 1995 was the direct and natural result" of the 23 April 1994 injury. Additionally, the Commission found that "any attempt to apportion causation among the three injuries or to apportion liability between the two carriers on the risk would be purely speculative;" therefore, the Commission properly concluded that defendants Rushco and Casualty were "liable for the disability that arose following the February 1995 spontaneous bleed."

Defendants next contend the Commission erred in finding that plaintiff was temporarily and totally disabled from 16 February 1995 until 7 July 1995. Temporary total disability is payable only during the healing period, which ends when the employee reaches maximum medical improvement. Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 472 S.E.2d 382, cert. denied, 344 N.C. 629, 477 S.E.2d 39 (1996). "The healing period ... is the time when the claimant is unable to work because of his injury, is submitting to treatment, ..., or is convalescing." Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 288-289, 229 S.E.2d 325, 328 (1976), disc. review denied, 292 N.C. 467, 234 S.E.2d 2 (1977).

In the case at bar, plaintiff testified that she went to see Dr. Thompson on 16 February 1995, after discovering that her ankle had re-ulcerated and was bleeding. According to plaintiff, Dr. Thompson cleaned her wound, "ordered [unna boots], antibiotics, and a painkiller," and gave her written instructions "to stay off of my foot, completely off, just propped up, nothing but going to the bathroom." Plaintiff further testified that Dr. Thompson continued to treat her until February 1996 and that during that time, she saw Dr. Thompson "[e]very week for about two months, and then he took it for every month and then three months, and then I’ll see him again in July." As discussed below, based on an insurance form completed by Dr. Thompson, the Commission found that plaintiff had reached maximum medical improvement as of 7 July 1995. Thus, there is competent evidence in the record to support the Commission’s finding that plaintiff was temporarily and totally disabled from 16 February 1995 until 7 July 1995.

Defendants lastly assign as error the Commission’s failure to allow defendant Casualty a $3,500.00 credit since plaintiff executed a $3,500.00 settlement with defendant Liberty. On 18 July 1997, prior to hearing this case, the Commission approved the settlement agreement. Plaintiff argues that the issue of a credit is not properly before this Court. Although the deputy commissioner concluded that the "two defendant-carriers are jointly and severally liable," there is nothing in the record to indicate that defendant Casualty presented this issue to the Commission. Assuming the credit issue was presented to and decided by the Commission, plaintiff further contends that defendant Casualty is not entitled to a credit since there is "no basis in the [Workers’ Compensation] Act for such a credit."

While there is no specific statutory provision addressing contribution between insurance carriers, we note that N.C. Gen. Stat. §97-42 (1999) provides:

Even assuming the $3,500.00 payment by defendant Liberty to plaintiff pursuant to the settlement constituted a payment by the "employer" under N.C. Gen. Stat. §97-42, we conclude that defendants Rushco and Casualty are not entitled to a credit since the deputy commissioner’s opinion required defendant Liberty to pay "at least fifty percent of the compensation due" and rendered such payment "due and payable" before the $3,500.00 was paid to plaintiff. Thus, since defendants have failed to cite to any authority which entitles them to a credit under the Workers’ Compensation Act, defendants’ assignment of error is overruled.

We next address plaintiff’s argument that the Commission erred in finding that she had reached maximum medical improvement on 7 July 1995. Maximum medical improvement is reached when the impaired bodily condition is stabilized or determined to be permanent. Carpenter v. Industrial Piping Co., 73 N.C. App. 309, 326 S.E.2d 328 (1985). The Commission found that "[o]n 7 July 1995, Dr. Thompson completed an insurance form relating to plaintiff in which he stated that the ulcer had healed, but that the severe chronic venous stasis changes in both legs were permanent." Dr. Thompson testified that plaintiff’s condition had "healed" or returned to the "baseline" after the 16 February 1995 incident, but that her chronic venous stasis is permanent. Therefore, the Commission properly concluded that plaintiff reached maximum medical improvement on 7 July 1995.

Plaintiff also contends the Commission erred in placing the burden on her to prove her disability after 7 July 1995. Specifically, plaintiff argues that she is entitled to a presumption of continuing disability under the Form 21 agreements, which the Commission approved on 14 November 1994 regarding the 5 February 1994 and 23 April 1994 injuries. However, since plaintiff returned to work for defendant Rushco at the same rate of pay she earned prior to these two injuries, plaintiff’s presumption of disability under the Form 21 agreement ended. See Watkins v. Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971).

Plaintiff further contends that she is entitled to a presumption of continuing disability after 7 July 1995 since the Commission determined she was temporarily and totally disabled as of 16 February 1995 and defendants failed to rebut this presumption. Defendants counter that plaintiff is not entitled to a presumption of continuing disability after 7 July 1995, the date she reached maximum medical improvement.

Although a plaintiff has established that she is entitled to temporary total disability, she must also prove her entitlement to permanent disability. Brice v. Sheraton Inn, ___ N.C. App. ___, 527 S.E.2d 323 (COA99-418, filed 21 March 2000). In Brice v. Sheraton Inn, supra, this Court held that although the plaintiff had met her burden of proving temporary total disability, she failed to prove that she was permanently and totally disabled after the date she was released to return to work without restriction, and no burden shifted to the defendant to refute a claim of permanent and total disability. Therefore, under Brice, plaintiff’s presumption of temporary total disability ended on 7 July 1995 when she reached maximum medical improvement, and plaintiff had the burden of proving she was entitled to permanent disability.

Finally, plaintiff contends that the Commission erred in finding that she did not meet her burden of proving it would be futile for her to seek other employment because of her pre-existing condition. "In order to prove disability, the employee need not prove he unsuccessfully sought employment if the employee proves he is unable to obtain employment." Peoples v. Cone Mills Corp., 316 N.C. 426, 444, 342 S.E.2d 798, 809 (1986). In Peoples, our Supreme Court held:

Id. Defendants argue that plaintiff failed to present sufficient evidence to establish that it would be futile for her to seek employment since "[s]he is not near retirement age and has obvious skills working with the public, in inventory assessment, in ordering stock, and in working with money, doing paper work, which she has developed during her 22 years as a convenience store manager." Defendants cite to a recent decision of this Court, Demery v. Converse, Inc., ___ N.C. App. ___, ___ S.E.2d ___ (COA99- 592, filed 6 June 2000), in which this Court found that the plaintiff did not meet his burden of showing he was "totally incapable" of earning wages where his "physician did not testify that he could not work, only that his work was restricted to certain limitations."

Here, based on the testimony of Dr. Thompson, the Commission found that "plaintiff is not capable of working in a job that requires standing from eight to ten hours a day" but that she could "perform a seated job if she can keep her left leg elevated most of the time." The Commission further found that although defendant Rushco did not offer plaintiff employment that was "suitable to her capacity," plaintiff "made no effort to find alternative employment within her restrictions after she reached maximum medical improvement." Additionally, we note that plaintiff failed to present any medical or vocational evidence tending to establish that it would be futile for her to seek other employment. See Peoples, 316 N.C. 426, 342 S.E.2d 798. Thus, the Commission properly concluded that plaintiff did not meet her burden of proving it would be futile for her to seek other employment.

Affirmed.

Judges MCGEE and HUNTER concur.