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NO. COA05-1257
NORTH CAROLINA COURT OF
APPEALS
Filed: 5 September 2006
TOM BOWEN,
Employee,
Plaintiff-Appellee,
v. North
Carolina Industrial Commission
I.C.
File No. 516240
ABF FREIGHT SYSTEMS, INC.,
Successor-in-Interest to
CAROLINA FREIGHT CARRIERS
CORPORATION, SELF-INSURED
(GAB Robins, Servicing
Agent), EMPLOYER,
Defendant-Appellant.
Appeal by defendant from
opinion and award entered 12 May 2005 by the North Carolina Industrial
Commission. Heard in the Court of
Appeals 11 April 2006.
Hedrick Eatman Gardner
& Kincheloe, L.L.P., by Neil P. Andrews and Jennifer S. Anderson, for
defendant-appellant.
Patrick, Harper &
Dixon L.L.P., by David W. Hood, and Leslie M. Yount for plaintiff-appellee.
ELMORE, Judge.
Tom Bowen (plaintiff)
was employed as a dockworker by Carolina Freight Carriers Corporation, a/k/a
ABF Freight Systems, Inc. (defendant) beginning on 2 February 1995. Plaintiff injured his lower back while
lifting materials in the course and scope of his employment. Defendant filed a Form 21 admitting the
compensability of plaintiff’s low back injury.
Plaintiff was authorized to return to work on 12 June 1995. Plaintiff returned to work for two weeks,
but on 27 June 1995 temporary total disability payments were reinstated for
“necessary weeks.”
An MRI revealed
plaintiff had a large disc herniation at L3-4.
Plaintiff also had a bulging disk at L5-S1, the site of a previous,
non-work related injury. Dr. Russell T.
Garland performed a diskectomy on plaintiff on 10 August 1995. An MRI showed that the L3-4 disc had
re-herniated. Plaintiff consulted Dr.
Kenneth E. Wood about his continued leg pain.
Dr. Wood performed a laminectomy and foraminotomy at L3-4. Dr. Wood requested a second opinion with Dr.
Robinson Hicks. Dr. Hicks performed a
decompressive laminectomy at L3-4 with a fusion at L3 to L5. On 6 January 1998 Dr. Hicks released
plaintiff at maximum medical improvement and assigned a 25% permanent partial
disability rating to his back.
Plaintiff received a functional capacity evaluation on 9 February
1998. According to this evaluation,
plaintiff could work in a sedentary capacity.
On 22 September 1999
plaintiff filed a Form 33 requesting a hearing on his claim that he is
permanently and totally disabled.
Defendant began vocational rehabilitation efforts with plaintiff to assist
him with finding sedentary work.
Plaintiff met with Ms. Omega Autry (Ms. Autry) in October of 1999 to
begin vocational rehabilitation. When
Ms. Autry was on medical leave from her position, Ms. Priscilla Styers (Ms.
Styers) took over in counseling plaintiff on his vocational rehabilitative
efforts. Ms. Styers worked with
plaintiff from 25 January 2000 through April of 2000. On 21 March 2000 Ms. Styers referred plaintiff to a job opening
at Griffith Security. Plaintiff was
interviewed by Doug Carter (Mr. Carter) at Griffith Security on 22 March
2000. Mr. Carter testified that he was
aware of plaintiff’s work restrictions and that plaintiff’s work restrictions
fit within the parameters of a security officer position that was
available. He stated that he would have
extended a job offer to plaintiff but for plaintiff’s lack of interest.
On 24 March 2000
defendant filed a Form 24 application seeking to terminate plaintiff’s wage
compensation on the basis that he had failed to cooperate with vocational efforts. Plaintiff filed a response on 3 April 2000,
and Special Deputy Commissioner Gina E. Cammarano entered an administrative
order disapproving defendant’s application.
Defendant filed notice of appeal to the Full Commission from this order.
Plaintiff was examined
by Dr. Thomas McKean (Dr. McKean), a board certified psychiatrist, on 17 April
2000. Dr. McKean diagnosed plaintiff
with a depressive disorder, chronic pain syndrome, and an adjustment disorder. He stated that obtaining a GED would be
difficult for plaintiff, if not impossible.
However, Dr. McKean’s diagnosis did not prohibit plaintiff from further
vocational rehabilitation efforts.
On 15 May 2000 defendant
filed a second Form 24 application seeking to terminate plaintiff’s wage
compensation and asserting that plaintiff has willfully refused to cooperate
with vocational efforts. Plaintiff
filed a response on 31 May 2000.
Special Deputy Commissioner Ronnie E. Rowell entered an administrative
order on 15 June 2000 disapproving defendant’s Form 24 application. Defendant filed notice of appeal to the Full
Commission from this order. On 30
August 2001 defendant filed a third Form 24 application seeking to terminate plaintiff’s
wage compensation. Defendant asserted
that plaintiff had again refused to cooperate with vocational rehabilitation
efforts. After plaintiff filed a
response, Special Deputy Commissioner Myra L. Griffin entered an order
disapproving defendant’s Form 24 application.
Defendant filed notice of appeal to the Full Commission from this order
as well.
Plaintiff’s request for
permanent and total disability was heard before Deputy Commissioner Chrystal
Redding Stanback on 27 March 2002. In
an opinion and award entered 5 May 2003, Deputy Commissioner Stanback determined
that plaintiff had complied with vocational rehabilitation efforts and had not
unjustifiably refused any suitable employment.
Pursuant to this decision, plaintiff was awarded temporary total
disability benefits for the remainder of his life or until further order of the
Commission. Defendant appealed to the
Full Commission. On 12 May 2005 the
Commission issued an opinion and award affirming the decision of Deputy
Commissioner Stanback with modifications.
Defendant appeals from the final opinion and award of the Commission.
I.
In considering an appeal
from a decision of the North Carolina Industrial Commission, this Court 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). A finding of fact is conclusive on appeal if
supported by competent evidence, even where there is evidence to contradict the
finding. See Adams v. AVX Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).
This Court may not weigh the
evidence or evaluate the credibility of witnesses, as “the Commission is the
sole judge of the credibility of the witnesses and the weight to be given their
testimony.” Id. at 680, 509
S.E.2d at 413.
II.
Defendant challenges the
standard of review applied by the Commission under N.C. Gen. Stat.
§97-18.1. Pursuant to section 97-18.1,
the employer may file a Form 24 with the Commission seeking to terminate or
suspend compensation for total disability.
Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 66, 526 S.E.2d 671,
674 (2000). Section 97-18.1 provides in
relevant part:
(c) An employer seeking
to terminate or suspend compensation . . . shall notify the employee and the
employee’s attorney of record in writing of its intent to do so on a form
prescribed by the Commission. . . . This form shall contain the reasons for the
proposed termination or suspension of compensation, be supported by available
documentation, and inform the employee of the employee’s right to contest the
termination or suspension by filing an objection in writing to the Commission
within 14 days of the date the employer’s notice is filed with the Commission
or within such additional reasonable time as the Commission may allow.
(d) . . . If the
employee files a timely objection to the employer’s notice, the Commission
shall conduct an informal hearing by telephone with the parties or their
counsel. . . . The Commission shall issue a decision on the employer’s
application for termination of compensation within five days after completion
of the informal hearing. The decision
shall (i) approve the application, (ii) disapprove the application, or (iii)
state that the Commission is unable to reach a decision on the application in
an informal hearing, in which event the Commission shall schedule a formal
hearing pursuant to G.S. 97-83 on the employer’s application for termination of
compensation.
N.C. Gen. Stat.
§97-18.1(c) and (d) (2005). Defendant’s
applications for termination of compensation are based upon, inter alia,
plaintiff’s refusal to cooperate with vocational rehabilitation. Section 97-25 of our General Statutes, which
addresses the employee’s cooperation with the employer’s offers of medical
treatment and rehabilitative services, provides in pertinent part:
The refusal of the
employee to accept any medical, hospital, surgical or other treatment or
rehabilitative procedure when ordered by the Industrial Commission shall bar said
employee from further compensation until such refusal ceases, and no
compensation shall at any time be paid for the period of suspension unless in
the opinion of the Industrial Commission the circumstances justified the
refusal[.]
N.C. Gen. Stat. §97-25
(2005).
Defendant contends that,
under section 97-18.1, it need only forecast evidence of plaintiff’s
refusal at the informal hearing, and that the Commission may consider
justification for the employee’s refusal to cooperate only at the formal
hearing. We disagree with both of
defendant’s contentions. Section
97-18.1 does not break down the hearing process into stages based upon the
substance of the evidence to be considered.
Nowhere in the statute does it indicate, as defendant asserts, that the
Commission shall consider the employee’s refusal of treatment or rehabilitative
services at the informal telephone hearing, and any circumstances that may
justify refusal at a subsequent, formal hearing. Also, according to the plain language of section 97-18.1, the
defendant-employer has the burden of establishing a basis for termination or
suspension of compensation. N.C. Gen.
Stat. §97-18.1(c)(2005) (the application for termination submitted by the
employer “shall contain the reasons for the proposed termination or suspension
of compensation, [and] be supported by available documentation[.]”). And if the employee does not file a timely
objection to contest the employer’s application for termination or suspension,
then the Commission may terminate or suspend compensation if there is a
“sufficient” basis. N.C. Gen. Stat.
§97-18.1(d) (2005). While we express no
opinion on what documentation submitted by the employer would be sufficient for
termination or suspension of compensation, we note that the statute places the
burden on the employer of providing reasons to support its Form 24
application. Whether a “forecast” of
evidence is sufficient is a determination within the sound discretion of the
Commission. Defendant’s assignment of
error is overruled.
III.
Next, defendant contends
the Commission erred in concluding that plaintiff complied with vocational
rehabilitation efforts. Defendant
argues that the record does not contain competent evidence to support the
finding that plaintiff cooperated with vocational rehabilitation. In particular, defendant asserts that
plaintiff failed to put forth any effort in pursuing his GED. The competent evidence establishes that
plaintiff refused to call to schedule GED placement testing and refused to
enroll in GED basic skills classes at Cleveland Community College. Ms. Styers testified that she gave plaintiff
the telephone number and asked him more than once to call and set up a time for
the testing. When plaintiff failed to
do this, Ms. Styers scheduled an appointment for plaintiff. Ms. Janice Neal (Ms. Neal), an instructor of
basic education at Cleveland Community College, testified that plaintiff missed
a scheduled appointment with her on 27 March 2000. She stated that plaintiff did not call to reschedule.
Foremost, we note that
any failure to cooperate with pursuing a GED prior to the 26 April 2000
administrative order of the Commission requiring plaintiff to pursue his GED is
not a basis for termination of compensation under section 97-25. See N.C. Gen. Stat. §97-25 (2005)
(refusal of employee to accept medical treatment or rehabilitation “when
ordered by the Industrial Commission” bars employee from further compensation
until refusal ceases); Maynor v. Sayles Biltmore Bleacheries, 116 N.C.
App. 485, 488-89, 448 S.E.2d 382, 384-85 (1994) (absent evidence that the
plaintiff failed to cooperate with a vocational rehabilitation specialist after
an order of the Commission requiring such cooperation, the defendant-employer
failed to establish a violation of section 97-25).
Defendant also asserts
that plaintiff made no attempt to obtain his GED after the 26 April 2000
administrative order. But there is
competent evidence referenced by the Commission in its findings that plaintiff
cooperated with pursuing his GED to the best of his ability, which was limited
by several factors:
16. The first
vocational counselor was Omegra Autry.
Subsequent to a medical leave of absence, Ms. Autry was replaced by
another counselor, Priscilla Styers.
Plaintiff, who had not worked in more than two years, began to suffer
from depression in association with his chronic back pain, and due to the
demanding nature of the vocational rehabilitation assignments given him by Ms.
Styers, who was more assertive and more aggressive than Ms. Autry. Plaintiff cooperated with vocational
rehabilitation efforts to the best of his ability, considering his limited
education, persistent and disabling back pain, and his depression. Ms. Styers insisted that the only way
plaintiff could obtain a job was to get his GED, the pursuit of which made
plaintiff very uncomfortable, considering his historical lack of success during
his grade school education. Plaintiff
could not bear the stress created by attending the GED classes and feared
humiliation in the event that he failed them.
21. . . .
After counseling plaintiff for eight months, Dr. McKean opined that because of
plaintiff’s depressive issues, chronic pain issues, learning disability and
borderline mental functioning, plaintiff would not be able to obtain his GED
based upon his mental issues. Dr.
McKean further noted that pursuing a GED was not appropriate for plaintiff as
it was a stressor that caused him major depression.
Defendant does not
contest the competency of the evidence establishing plaintiff’s psychological
difficulties. Indeed, Dr. McKean stated
that participating in a GED program would be difficult, if not impossible, for
plaintiff. Defendant notes that Dr.
McKean did not prohibit plaintiff’s participation in a GED program. But it is not this Court’s role to make new
findings of fact based upon the evidence; our review of a finding of fact
entered by the Commission is to determine whether it is supported by competent
evidence. See Adams, 349 N.C. at
681, 509 S.E.2d at 414.
The Commission entered
the following finding summarizing the evidence of plaintiff’s affirmative
efforts at obtaining a job and participating in vocational rehabilitation:
22. Despite
his chronic back pain and mental issues, plaintiff cooperated with vocational
rehabilitative efforts. Plaintiff
attended all vocational meetings, took a placement test for the GED, sought
employment on his own by reviewing advertisements for work in the Shelby area
and speaking to colleagues, completed sample job applications, got a criminal
background check and paid for the same, completed job lead forms to the best of
his ability, went to the Employment Security Commission to locate jobs and
scheduled and attended the only job interview that the vocational counselor
suggested.
Where any competent
evidence exists to support a finding of the Commission, that finding is binding
upon this Court. See Deese, 352
N.C. at 116, 530 S.E.2d at 553. Thus,
even though there may be evidence from which a fact finder could determine
plaintiff has failed to cooperate with vocational rehabilitation efforts, we
must uphold the finding.
Defendant also
challenges the Commission’s finding that plaintiff has not unjustifiably
refused any suitable employment.
Defendant contends that plaintiff violated section 97-32 of the General
Statutes, which states:
If an injured employee
refuses employment procured for him suitable to his capacity he shall not be
entitled to any compensation at any time during the continuance of such
refusal, unless in the opinion of the Industrial Commission such refusal was
justified.
N.C. Gen. Stat. §97-32
(2005). The Commission entered a
finding with respect to the Griffith Security position that plaintiff sought:
18. Most of
the jobs located by vocational counselors assigned to plaintiff’s claim were
part-time positions, beyond plaintiff’s education or that required a GED. A security guard position was located for
plaintiff; however, the job required ten years of education, which the
plaintiff lacked, and it was never approved by a physician. The security job position was not suitable
employment, and the plaintiff did not unjustifiably refuse such employment.
Defendant argues on
appeal that the Commission’s findings are erroneous because Mr. Carter of
Griffith Security stated that he would have hired plaintiff for the security
officer position but for plaintiff’s lack of interest. Defendant contends that this evidence
supports a finding that the Griffith Security job was suitable and that plaintiff
constructively refused this suitable employment by sabotaging the
interview. See Johnson v. Southern
Tire Sales & Serv., 358 N.C. 701, 709, 599 S.E.2d 508, 514 (2004) (“An
employer need not show that the employee was specifically offered a job by some
other employer in order to prove that the employee was capable of obtaining
suitable employment.”). The dispute
between the parties here hinges on the question of whether the Griffith
Security job was “suitable employment.”
In order to be “suitable,” a job must be available to the employee and
one that he is capable of performing. Id.
Contrary to defendant’s
assertion, the record contains competent evidence to support the finding that
the Griffith Security job was not suitable employment. The record reveals that the position had not
been approved by a physician, and the educational requirements were too high
for plaintiff to fulfill. Specifically,
plaintiff testified that the Griffith job would require filling out reports
every once in a while and required an education level of 10 years, beyond what
plaintiff had achieved. Defendant
argues nonetheless that the Commission should have given more weight to the
testimony of Mr. Carter. Mr. Carter
stated that he would have extended an offer to plaintiff but for plaintiff’s
clear lack of interest. As noted supra,
the Commission is the sole judge of credibility of witnesses and the weight of
evidence presented. See Adams,
349 N.C. at 680, 509 S.E.2d at 413. The
Commission could properly have chosen to give little weight to the testimony of
Mr. Carter. See Cross v. Blue
Cross/Blue Shield, 104 N.C. App. 284, 288, 409 S.E.2d 103, 105 (1991)
(Commission is sole judge of credibility of witnesses; it may reject part or
all of testimony of a witness).
Defendant also contends
that the Commission’s finding on suitable employment should be reversed where
it did not state whether there were reasonably available jobs if plaintiff was
diligent in his efforts, citing Johnson v. Southern Tire Sales & Serv.,
358 N.C. 701, 599 S.E.2d 508 (2004). We
find this argument unpersuasive. In Johnson,
the plaintiff’s vocational rehabilitation counselor testified that he found
approximately twelve jobs that were within the plaintiff’s physical and
vocational restrictions. Johnson,
358 N.C. at 703, 599 S.E.2d at 510. The
plaintiff’s vocational counselor also testified that the plaintiff could have
found a job if he had made diligent efforts.
Id. at 709, 599 S.E.2d at 514.
However, the Commission found that the plaintiff did not unjustifiably
refuse suitable employment where he received no job offers. Id. at 710, 599 S.E.2d at
514-15. The Supreme Court stated that
this finding was in contravention to the doctrine of constructive refusal of
suitable employment. Id. The Court held that the Commission’s
conclusion on suitable employment must be reversed due to the lack of findings
on whether the plaintiff would have been hired if he had diligently sought
employment. Id., 599 S.E.2d at
515.
Here, in contrast,
plaintiff’s vocational evaluator at Cleveland Vocational Industries testified
that due to plaintiff’s work limitations it would be difficult for him to
obtain a job. Also, plaintiff’s
aptitude test revealed his language skills are at a third-grade level and math
skills below a third-grade level.
Plaintiff had worked the previous decade and a half in the heavy freight
industry. The Commission found, in
finding of fact number 17, that plaintiff has worked the previous fifteen years
loading heavy freight and lacks the transferable vocational skills necessary
for new work settings. The Commission’s
finding was supported by competent evidence.
Having determined that
competent evidence supports the Commission’s findings, we now consider whether
the findings support its conclusions.
The relevant conclusion of law states:
2. Plaintiff
has complied with vocational rehabilitation efforts and with prior Orders of
the Industrial Commission regarding the same and should not have his
compensation ceased for noncompliance.
Plaintiff has not unjustifiably refused any suitable employment. N.C.G.S. §§97-18.1, 97-25, 97-32.
This conclusion is
supported by findings of fact 16, 17, 18, 21, and 22. The Commission found that the security officer position was not
suitable employment because its educational requirements were too high and a
physician had not approved the position for plaintiff. With respect to plaintiff’s efforts at
vocational rehabilitation, the Commission found that plaintiff was not able to
obtain his GED due to a learning disability, depression, and chronic pain
issues. Significantly, the Commission
also found that plaintiff scheduled and then attended an interview for the only
job recommended by his vocational counselor.
Defendant’s challenge to the Commission’s conclusion is overruled.
IV.
Next, defendant contends
that the Commission erred in concluding that plaintiff is totally disabled as a
result of his work-related physical and mental conditions. Defendant challenges the following findings
in this regard:
25. Polly Metcalf,
vocational coordinator at Cleveland Vocational Industries, opined that if
“plaintiff were to go out and get a job, based on what they observed, it would
be difficult for him to maintain the job” and stated that the results of the
evaluation at their center would indicate a poor prognosis for success if
plaintiff were employed.
26. Based upon
the most competent evidence of record, plaintiff is unable to earn wages at
this time. Plaintiff’s treating
physician, Dr. McKean, has indicated that plaintiff is unable to work at this
time due to both physical and mental issues.
We determine that
competent evidence supports these findings.
Dr. McKean testified that plaintiff cannot work due to his physical and
mental condition. Although plaintiff
was cleared by a different physician to perform sedentary work, the record
reveals that there was no suitable sedentary employment available to
plaintiff: Plaintiff is 57 years old,
and his formal education consists of completing only the seventh grade. Plaintiff has no transferable vocational
skills, having worked the previous fifteen years as a dockworker loading heavy
freight. Plaintiff’s reading and
writing skills are at the third-grade level.
Given the evidence that plaintiff was not qualified for sedentary jobs
due to their educational requirements, the Commission did not err in concluding
that plaintiff was totally disabled. See
Peoples v. Cone Mills Corp., 316 N.C. 426, 442-44, 342 S.E.2d 798, 808-09
(1986) (fact that the plaintiff can perform sedentary work does not prevent
Commission from awarding total disability where there is evidence that
plaintiff is not qualified for sedentary jobs that might be available due to
the plaintiff’s lack of education and job skills).
V.
Finally, defendant
contends that the Commission erred in finding and concluding that plaintiff
suffered an injury by accident resulting in depression. Specifically, defendant argues that
plaintiff failed to establish his depression was causally related to his injury
by accident. The Commission made a
finding on this issue based upon the testimony of Dr. McKean:
20. Dr. Thomas
McKean, psychiatrist, first saw the plaintiff on April 17, 2000, for suicidal
thoughts and depression due to chronic pain and vocational efforts. Plaintiff’s family history is positive for
two family members committing suicide.
Dr. McKean opined that vocational rehabilitative efforts were one of the
major stressors that led to the plaintiff’s clinical depression. Vocational rehabilitation continued to be an
issue in plaintiff’s life during the course of Dr. McKean’s discussions with
plaintiff. Dr. McKean’s psychiatric
treatment was necessary to effect a cure of provide relief or plaintiff’s
depressive symptoms.
The Commission then
entered the following conclusion:
4. Plaintiff
is entitled to reasonable and necessary nursing expenses, medicines, sick
travel, medical, hospital and other treatment or course of rehabilitative or
pain management services at defendants’ expense reasonably required to effect a
cure, provide relief and lessen the period of disability. Dr. McKean’s treatment of the plaintiff was
reasonably designed to tend to effect a cure, provide needed relief from or
lessen the period of disability associated therewith, therefore defendants
shall pay all reasonable and necessary medical expenses incurred by the
plaintiff as a result of the injury by accident and related depression. N.C.G.S. §§97-25; 97-2(19).
Defendant argues that
the testimony of Dr. McKean is speculative and cannot support a finding that
plaintiff’s depression is causally related to his vocational rehabilitative
efforts. Dr. McKean testified that
depression is a multifactorial illness but that vocational rehabilitation is
one of the stressors that led to plaintiff’s clinical depression. Specifically, Dr. McKean stated that it was
his opinion to a reasonable degree of psychiatric certainty that the vocational
rehabilitative efforts were a stressor leading to plaintiff’s depression. Defendant points out that Dr. McKean also
stated, “I don’t think a causal specific relationship could be applied here.” But we must consider this statement in
context; this Court may not determine a witness’s entire testimony is
speculative based upon a few selective excerpts. See Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563,
573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting), adopted per curiam,
359 N.C. 403, 610 S.E.2d 374 (2005).
Where a physician
testifies that the plaintiff’s depression was caused by several stressors, one
of them arising out of the plaintiff’s injury by accident, the fact that other
stressors exist does not undermine a finding that the depression was causally
related to the injury. See Haponski
v. Constructor’s, Inc., 87 N.C. App. 95, 103, 360 S.E.2d 109, 113-14 (1987)
(existence of other possible causes of the plaintiff’s depression does not
negate probative value of the physician’s testimony that the depression was
caused by the plaintiff’s pain). Dr.
McKean’s testimony that plaintiff’s vocational rehabilitation was a stressor
causing plaintiff’s depression supports the Commission’s findings and
conclusion.
We hold that the
Commission’s findings are supported by competent evidence and the findings
justify the Commission’s conclusions.
As such, we affirm the opinion and award of the North Carolina
Industrial Commission.
Affirmed.
Judges WYNN and McGEE
concur.