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NO. COA07-5
NORTH CAROLINA COURT OF APPEALS
Filed: 19 February 2008
MICHAEL L. HUNTER,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 635281
APAC/BARRUS CONSTRUCTION
COMPANY,
Employer,
ESIS,
Carrier,
Defendants.
Appeal by defendants from an opinion and award entered 6
September 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 29 August
2007.
Ward
and Smith, P.A., by William Joseph Austin, Jr. and Nikiann Tarantino Gray, for
plaintiff-appellee.
Womble
Carlyle Sandridge & Rice, PLLC, by Clayton M. Custer and Julie B. Bradburn,
for defendants-appellants.
GEER, Judge.
Defendants appeal from an opinion and award of the North
Carolina Industrial Commission concluding that plaintiff is entitled to
permanent total disability benefits as a result of injuries he sustained during
his employment with defendant employer.
On appeal, defendants primarily argue that the Commission should have
found that plaintiff was actively involved in the running of a family farm and
that this activity established that plaintiff possessed wage-earning capacity. Based upon this Court’s standard of review,
we hold that the Commission’s findings of fact otherwise are supported by
competent evidence, and those findings in turn support the conclusions of law. We, therefore, affirm.
At the time of the hearing, plaintiff was 52 years old and
had a high school diploma. He began
working for the defendant construction company as a heavy equipment operator on
24 September 1990. In December 1992,
plaintiff and his brother also began the Hunter Hog Farm (“the farm”). Prior to being injured, plaintiff was
responsible for overseeing the day-to-day operations of the farm. His son grew up helping with the farm and
also learning its day-to-day operations.
On 6 May 1996, plaintiff was injured while working for defendant
employer when a road sign fell and hit him in the head, resulting in a
life-threatening epidural hematoma.
Plaintiff was taken to the hospital where he underwent an emergency
craniotomy and was released on 10 May 1996.
The parties ultimately entered into a Form 21 agreement that was
approved by the Commission on 17 June 1996.
Plaintiff has been receiving temporary total disability benefits at a
rate of $390.00 per week since 6 May 1996.
As a result of his brain injury, plaintiff suffered a change
in personality that caused him to become childish, forgetful, irrational,
angry, and unexpectedly belligerent.
Plaintiff also experienced headaches, tinnitus, diminished cognitive
abilities, anxiety, and depression. He
was seen by Dr. Antonio E. Puente, a neuropsychologist, on 84 occasions from 15
July 1996 through 9 December 2002. Dr.
Puente continues to be plaintiff’s treating doctor. Dr. Puente has diagnosed plaintiff as suffering from a closed
head injury with PTSD/anxiety/reactive depression and a chronic organic
personality disorder. According to Dr.
Puente, plaintiff’s brain injury resulted in cognitive and emotional
limitations, impairing his memory, organizational skills, and ability to learn
new skills and led to volatility, a hypersensitivity to noise, and an inability
to perform repetitive tasks for extended periods of time.
Plaintiff was also seen, at defendants’ request, by Dr.
Margit Royal, a board-certified neurologist, and Dr. C. Thomas Gualtieri, a
neuropsychiatrist. Dr. Royal ultimately
concluded plaintiff was physically capable of working, but acknowledged that
plaintiff may lack the cognitive function, especially with respect to
organizational skills, necessary to perform consistently. Dr. Gualtieri diagnosed plaintiff as
suffering a traumatic injury to the brain that had resulted in persistent
problems, including headaches, tinnitus, cognitive problems, and emotional
problems.
Subsequently, defendants requested a hearing to determine
“whether Plaintiff is employable and whether Plaintiff is undermining
Vocational Rehabilitation and medical diagnosis efforts.” The hearing was conducted by the deputy
commissioner on 17 October 2002 and 16 December 2003. As reflected in the stipulations set forth in the deputy
commissioner’s opinion and award, defendants contended “that the Plaintiff’s
ownership interest in and operation of [the farm] is suitable employment such
that he is no longer entitled to receive ongoing total disability
benefits.” On 22 December 2005, the
deputy commissioner awarded plaintiff permanent total disability compensation
in the amount of $390.00 per week.
Defendants appealed to the Full Commission, which affirmed
the deputy commissioner’s opinion and award on 6 September 2006 with minor
modifications. The Commission concluded
that plaintiff’s ownership of the farm was not sufficient to support a finding
of wage earning capacity based on its factual findings that (1) plaintiff was
not involved in the day-to-day operations of the farm; and (2) the skills
plaintiff used on the farm would not allow him to be employable in the
competitive market place, considering his physical limitations, age, education,
and experience. The Commission further
concluded that because of plaintiff’s compensable brain injury — and the resulting
cognitive and emotional conditions — plaintiff would never be able to return to
work in competitive employment, and plaintiff was, therefore, entitled to
permanent total disability benefits.
Defendants timely appealed the opinion and award of the Full Commission
to this Court.
Appellate review of a decision of the Industrial Commission
“is limited to determining whether there is any competent evidence to support
the findings of fact, and whether the findings of fact justify the conclusions
of law.” Cross v. Blue Cross/Blue
Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). “The findings of the Commission are
conclusive on appeal when such competent evidence exists, even if there is
plenary evidence for contrary findings.”
Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d
368, 371, disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). The Commission’s findings of fact may only
be set aside if there is a “complete lack of competent evidence to support
them.” Young v. Hickory Bus.
Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). This Court reviews the Commission’s
conclusions of law de novo. Deseth
v. LensCrafters, Inc., 160 N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003).
Defendants first contend that the Commission erred in
concluding that plaintiff had a presumption of permanent total disability. In its first conclusion of law, the
Commission stated: “Because the parties entered into a Form 21 Agreement, the plaintiff
has the benefit of a presumption of total disability.” Defendants argue that the presumption of
disability resulting from a Form 21 agreement applies only to temporary total
disability and, therefore, should not have been a basis for an award of
permanent total disability. Significantly,
defendants cite no authority that supports their proposition.
In any event, defendants did not assign error to this
conclusion of law. Pursuant to Rule
10(a) of the North Carolina Rules of Appellate Procedure, “the scope of review
on appeal is confined to a consideration of those assignments of error set out
in the record on appeal in accordance with this Rule 10.” In the absence of an assignment of error
directed to the first conclusion of law, defendants’ arguments regarding that
conclusion of law are not properly before this Court. See Taylor v. Carolina Restaurant Group, Inc., 170
N.C. App. 532, 540, 613 S.E.2d 510, 515
(declining, pursuant to Rule 10(a), to address defendants’ contention
that Commission’s conclusion of law was contrary to the law, when defendants’
assignment of error as to that conclusion of law stated only that it was not
supported by competent findings of fact), aff’d per curiam, 360 N.C.
173, 622 S.E.2d 492 (2005). We note
further that even after plaintiff, in his appellate brief, pointed out the lack
of an assignment of error, defendants did not move to amend the record on
appeal to add an assignment of error and did not ask, in their reply brief, for
this Court to apply N.C.R. App. P. 2.
We, therefore, address neither defendants’ arguments regarding the
presumption nor defendants’ contentions regarding plaintiff’s purported failure
to meet his burden of proof in the absence of the presumption.
Defendants next contend that the Commission erred in
determining plaintiff to be permanently and totally disabled because
defendants’ evidence established plaintiff’s wage earning capacity. When a presumption has arisen from a Form
21, “‘the burden shifts to [the employer] to show that plaintiff is
employable.’” Saums v. Raleigh Community
Hosp., 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997) (quoting Dalton v.
Anvil Knitwear, 119 N.C. App. 275, 284, 458 S.E.2d 251, 257, disc.
review denied and cert. denied, 341 N.C. 647, 462 S.E.2d 507 (1995)). At that point, “[t]he employee need not present
evidence at the hearing unless and until the employer, ‘claim[ing] that the
plaintiff is capable of earning wages[,] . . . come[s] 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.’” Id. at 763-64,
487 S.E.2d at 749 (quoting Kennedy v. Duke Univ. Med. Ctr., 101 N.C.
App. 24, 33, 398 S.E.2d 677, 682 (1990)).
Defendants contend they met their burden by offering evidence
regarding plaintiff’s involvement with his family farm. The Supreme Court in Lanning v.
Fieldcrest-Cannon, Inc., 352 N.C. 98, 530 S.E.2d 54 (2000), set forth the
test to be applied in determining whether an employee’s ownership of a business
supports a finding of earning capacity:
[T]he test for
determining whether the self-employed injured employee has wage-earning
capacity is that the employee (i) be actively involved in the day to day
operation of the business and (ii) utilize skills which would enable the
employee to be employable in the competitive market place notwithstanding the
employee’s physical limitations, age, education and experience. In the instant case, given plaintiff’s
exertional limitations, education, and experience, would he be hired to work in
the competitive market place?
Id. at 107, 530
S.E.2d at 61.
The Supreme Court stressed in Lanning that questions
regarding whether plaintiff is actively involved in the day-to-day operation of
the business and whether plaintiff’s self-employment involves marketable skills
“are questions of fact.” Id. at
108, 530 S.E.2d at 61. In Lanning,
the Court held that this Court “usurped the fact-finding role of the
Commission” when it made these determinations.
Id. The Supreme Court
reversed this Court and directed that the case be remanded to the Commission to
make the necessary findings of fact. Id. See also Devlin v. Apple Gold,
Inc., 153 N.C. App. 442, 448, 570 S.E.2d 257, 262 (2002) (finding that
although the Commission made adequate findings as to the employee’s involvement
in day-to-day operation of his business, it failed to make findings as to
whether the employee’s management skills “are competitively marketable in light
of his physical limitations, age, education and experience”). In this case, the Commission made the
findings required by Lanning and, more recently, by Devlin. The issue on appeal is whether those
findings are supported by any competent evidence.
With respect to the first element of the Lanning
test, the Commission found:
19. . . . All the
testimony, including that from friends or business acquaintances and the
plaintiff’s brother James Hunter, a former partner in the hog farm, shows that
Scott Hunter [plaintiff’s son] is a hard-working young man, and that after his
father’s injury in May 1996, Scott rose to the occasion and basically took over
the physical day-to-day operations of the farm.
20. Scott Hunter
was a minor and did not have the credit history to take over financial
ownership of the farm when his father was first injured. As a result, the plaintiff continued to sign
as owner of the business on grower agreements, equipment purchases and
financial documents until Scott was able to acquire a one-half ownership
interest in Hunter Hog Farm in 2002.
21. Since May 6,
1996, Scott Hunter has been responsible for the day-to-day operations of the
hog farm including driving the tractors, mowing the grass, irrigating the
animals, pulling out the dead hogs, bailing the hay, operating the equipment,
cleaning the hog houses, identifying whether there were sick or diseased
animals, ordering the feed and all other tasks related to the hog farm.
. . . .
25. Since his
injury by accident, the plaintiff has done a limited amount of work on Hunter
Hog Farm, but he is not involved in day-to-day operations or in management of
the business. The plaintiff has walked
the farm, co-signed loans, purchased equipment and signed grower agreements.
Defendants
failed to assign error to findings of fact 19, 20, and 21 and, therefore, those
findings are binding on appeal. Those
findings establish that Scott Hunter is the person responsible for the
day-to-day operations of the farm.
Further, the Commission’s finding regarding plaintiff’s limited
involvement with the farm is supported by testimony from Scott Hunter,
plaintiff, a neighbor, the farm’s CPA, a loan officer, and a grower. While defendants point to the documents
signed by plaintiff, the Commission was entitled to credit plaintiff’s evidence
that plaintiff signed the documents only because of Scott’s age and lack of
credit history and that the documents did not reflect actual involvement in the
day-to-day operations of the farm.
Defendants, however, argue that the Commission failed to
take into account testimony from their expert, Dr. Lamb, and lay witnesses
testifying about plaintiff’s signing of financial documents and engaging in
other tasks in connection with the farm.
Defendants cite Weaver v. American Nat’l Can Corp., 123 N.C. App.
507, 473 S.E.2d 10 (1996), which held: “Before making findings of fact, the
Industrial Commission must consider all of the evidence. The Industrial Commission may not discount
or disregard any evidence, but may choose not to believe the evidence after
considering it.” Id. at 510, 473
S.E.2d at 12.
Defendants hired Dr. Russell Lamb, a Ph.D. agricultural
economist, to analyze the farm’s financial records. Based upon his review of those records, Dr. Lamb concluded that
plaintiff was actively involved in the operation of the farm from 1996 to
2002. Far from disregarding Dr. Lamb’s
testimony, the Commission included a specific finding of fact explaining why it
did not find his testimony persuasive:
24. Dr. Lamb has
never met the plaintiff, never talked to anyone who has ever done business with
the plaintiff, and has never met Scott Hunter or Dale Hunter[, plaintiff’s
wife]. Further, Dr. Lamb does not have
the expertise necessary to render an opinion about the plaintiff’s physical
capacity or the extent of the plaintiff’s head injury, or cognitive deficits. He has never visited the Hunter Hog Farm or
observed the day-to-day operation. The
Full Commission finds that, to the extent that Dr. Lamb’s conclusions about the
economic status of Hunter Hog Farm are based upon incomplete information about
the actual operations of the farm and who manages it and does the work, they
are insufficient and not persuasive to establish any wage earning capacity on
the part of the plaintiff.
The
Commission thus did not disregard Dr. Lamb; it simply did not credit his testimony. “In weighing the evidence, the Commission is
the sole judge of the credibility of the witnesses and the weight to be given
to their testimony, and may reject a witness’ testimony entirely if warranted
by disbelief of that witness.” Lineback
v. Wake County Bd. of Comm’rs, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254
(1997). See also Pitman v.
Feldspar Corp., 87 N.C. App. 208, 216, 360 S.E.2d 696, 700 (1987) (holding
that the Commission may refuse to believe certain evidence, controverted or
not, and may accept or reject the testimony of any witness), disc. review
denied, 321 N.C. 474, 364 S.E.2d 924 (1988).
Defendants also point to the lay testimony of certain
growers who had business contracts with the farm and, defendants argue,
supported their contention that plaintiff was in fact still involved in the
operation of the farm. While the
Commission did not make specific findings addressing that testimony, the
Commission is not required to “make exhaustive findings as to each statement
made by any given witness or make findings rejecting specific evidence.” Hensley v. Indus. Maint. Overflow,
166 N.C. App. 413, 421, 601 S.E.2d 893, 899 (2004), disc. review denied,
359 N.C. 631, 613 S.E.2d 690 (2005).
The Commission’s findings that plaintiff “signed grower agreements,”
that plaintiff signed financial documents because Scott Hunter was a minor and
lacked a credit history, and the responsibilities assumed by Scott reflect an
adequate consideration — and implicit rejection — of defendants’ evidence.
Accordingly, we hold that the Commission’s finding that
plaintiff was not involved in the day-to-day operations of the farm is
supported by competent evidence and, therefore, must be upheld on appeal. “As this finding of fact establishes that
the [business] did not meet one prong of the Lanning two-prong test, we
need not address whether [plaintiff] gained any marketable skills from his
[business].” Id. at 419, 601
S.E.2d at 898. We, therefore, uphold
the Commission’s determination that plaintiff’s participation in the farm did
not establish wage-earning capacity.
Alternatively, defendants argue that plaintiff’s refusal to
cooperate with vocational rehabilitation precludes an award of disability
benefits under N.C. Gen. Stat. §97-25 (2005) and N.C.I.C. Rule 703. Defendants complain that the Commission’s
determination that plaintiff’s refusal to continue at a sheltered workshop was
“reasonable” constituted a “de facto reversal of the Order compelling
plaintiff to attend vocational rehabilitation” and, in combination with its
“determination of permanent disability erroneously deprived defendants of the
chance to assist plaintiff in regaining any alleged diminished capacity
resulting from the injury.”
The record indicates that defendants’ vocational
rehabilitation professional, Robert Manning, Jr., recommended that plaintiff
work for a period of time in “supportive employment,” also known as a sheltered
workshop. In response to a request by
defendants, the Commission’s Executive Secretary entered an order stating:
For good cause shown, IT IS HEREBY ORDERED that plaintiff
shall comply with reasonable vocational rehabilitation services provided by
defendants pursuant to N.C. Gen. Stat. §97-25, including attempting to attend
an interim workshop, after the vocational Rehabilitation Professional observes
the plaintiff in his current efforts at returning to work and after the
Rehabilitation Professional clearly enunciates the plan for use of the workshop
in a report which specifies the maximum length of time the plaintiff should
attempt the workshop and how the workshop will aid in returning the plaintiff
to suitable employment.
Mr. Manning, in consultation with Dr. Puente, ultimately
decided on a two-week period at Omega Enterprises. During an initial tour of the Omega facilities, plaintiff left
after a few minutes. The Commission
found:
18. In December
2000, at the direction of the defendants, the plaintiff visited a sheltered
workshop. The plaintiff was overwhelmed
by the noise and number of developmentally disabled individuals at the shelter
and left after a few minutes. Mr.
Manning testified that the attempt to rehabilitate the plaintiff in a sheltered
workshop was a wasted cause. The plaintiff’s
decision to walk out of the sheltered workshop was a reasonable reaction.
Defendants have not made any specific argument, apart from a general citation to N.C. Gen. Stat. §97-25 and Rule 703, that the Commission was required to suspend benefits despite this finding. Further, even assuming that defendants are correct in arguing that the Commission “de facto” reversed the Executive Secretary when it found that plaintiff’s decision not to go through with the Omega trial was “reasonable,” defendants have cited no authority and made no specific argument as to why such a reversal would be erroneous.
Defendants argue instead that the finding misstates Mr. Manning’s testimony when it indicated that Mr. Manning testified that pursuit of the sheltered workshop was “a wasted cause.” We disagree. When asked whether he thought plaintiff would participate in the Omega workshop, Mr. Manning responded: “I didn’t really feel any need to pursue – not that I was ever asked to, again, but I certainly felt it was a wasted cause.” Thus, the Commission’s finding is consistent with Mr. Manning’s testimony.
With respect to the Commission’s finding that plaintiff’s
departure from Omega was a reasonable reaction, Mr. Manning explained that he
could understand plaintiff’s reaction.
Well, I think I
used the word, insulted, before and I - I can understand that. . . .
But with the scenario that you’ve painted - I mean, when you pull up in front of that building and you walk in and somebody walks by with, you know, perhaps not their Sunday best on that’s acting a little bit strange, I’ll admit to you it could be a little bit intimidating.
Mr.
Manning confirmed that Omega was not work in a competitive labor market, but
explained the reasoning for the referral to Omega:
[W]ith the
problems that [plaintiff] had, I just – I couldn’t see going out trying to place
him in the job market, but at the same time, as a rehab person, I wasn’t about
to give up on him. I was just trying to
find something that would help him kind of crawl back.
And this may have turned out to be an absolute disaster if we’d gone through with it, but I guess in some sense of the word, at least we’d be that far down the road and know that it was a disaster.
We
believe that this testimony supports the Commission’s finding that plaintiff’s
decision to leave Omega was reasonable.
Defendants present no other argument supporting their contention that
plaintiff’s refusal to cooperate precluded an award of benefits.
In this section of their brief, defendants also challenge an
unrelated finding of the Commission that “Bob Manning, the vocational rehabilitation
expert hired by the defendants, testified that there was ‘no way’ the plaintiff
could get a job in the competitive labor market when one considers his physical
and mental limitations.” This finding of
fact relates to the second prong of the Lanning test and, therefore, is
immaterial. Nevertheless, this finding
is supported by Mr. Manning’s deposition.
After describing the Omega experience, Manning went on to acknowledge
that he “never did go on to recommend a job placement plan or anything like
that.” He explained that he did not
prepare a plan because: “I just can’t imagine going hand-in-hand to an employer
at that time and . . . trying to give somebody his history and – and to stand
there and say yeah, I’m ready to go to work, I’ll be here Monday morning. That wasn’t going to happen.” When asked by plaintiff’s counsel if
plaintiff would be hired if they had done so, he said, “No, way.” The Commission’s finding is a reasonable
construction of Mr. Manning’s testimony.
Defendants failed to preserve any argument that a
presumption of disability did not apply.
The burden to prove that plaintiff was employable, therefore, shifted to
them. Because the Commission’s findings
of fact under Lanning are supported by competent evidence, and
defendants have failed to demonstrate that plaintiff’s unwillingness to
participate in the Omega sheltered workshop mandated a denial of benefits, we
affirm the Commission.
Affirmed.
Judges CALABRIA and JACKSON concur.