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NO. COA02-842
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2003
DOROTHY
HUNT,
Employee,
Plaintiff-Appellant,
v. North
Carolina Industrial Commission
I.C.
File No. 839851
NORTH
CAROLINA STATE
UNIVERSITY,
Employer,
SELF-INSURED,
KEY RISK
MANAGEMENT
SERVICES,
Administering Agent,
Defendants-Appellees.
Appeal by plaintiff from Opinion and Award entered 6 February 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 25 March 2003.
Law
Offices of George W. Lennon, by George W. Lennon and Michael W. Ballance, for
plaintiff.
Roy
Cooper, Attorney General, by Dahr Joseph Tanoury, Associate Attorney
General, for defendants.
STEELMAN,
Judge.
Plaintiff,
Dorothy Hunt, appeals an opinion and award by the North Carolina Industrial
Commission (Commission). For the reasons discussed herein, we affirm the opinion
and award of the Commission.
Plaintiff
had worked as a library assistant at North Carolina State University (NCSU) for
22 years. On 22 May 1998, she slipped on a wet floor at work, caught herself
with her right hand and fell on the right side of her posterior. She reported
her injury to Paula Barnes, NCSU’s workers’ compensation disability benefits
coordinator, who authorized her go to Blue Ridge Primary Care.
Subsequently,
plaintiff visited her own physician, Dr. Edward B. Yellig, who referred her to
a hand specialist, Dr. Krakauer. Dr. Krakauer determined that plaintiff
sustained a small wrist fracture as a result of the fall. Plaintiff was also
seen by Dr. T. Craig Derian for her back.
Plaintiff
testified that after her fall on 22 May 1998, her back began hurting. It was
eventually determined that plaintiff had degenerative disc disease, which had
been non-symptomatic prior to her 22 May 1998 fall. Although her doctors
testified the fall did not cause her degenerative disc disease, each of the doctors
stated that the fall aggravated the condition and possibly triggered the back
pain.
Plaintiff
filed a Form 18, notice of injury, asserting wrist and back injuries.
Thereafter, the parties entered into a Form 21 agreement for compensation for
plaintiff’s wrist fracture. The employer denied that any back injury was
related to the accident.
After
her injury on 22 May 1998, plaintiff continued to work until November 1999,
when she was placed on state disability retirement. The Commission awarded
plaintiff permanent partial disability compensation for all of her injuries.
Plaintiff appeals.
The
Commission’s findings of fact are conclusive on appeal if they are supported by
any competent evidence. Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 402,
233 S.E.2d 529, 531 (1977). Thus, on appeal, the appellate 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.” Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965).
In
her first assignment of error, plaintiff argues that the Commission erred as a
matter of law by concluding that she failed to prove permanent and total disability.
We disagree.
In
a claim for permanent and total disability, an employee must prove the
existence of the disability and its extent. Saunders v. Edenton Ob/Gyn Ctr.,
352 N.C. 136, 530 S.E.2d 62 (2000). An employee may meet this burden of proof
in one of four ways: (1) the production of medical evidence that he or she 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 or she is
capable of some work, but that he or she has, after a reasonable effort on his
part, been unsuccessful in an effort to obtain employment; (3) the production
of evidence that he or she 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
or she has obtained other employment at a wage less than that earned prior to
the injury. Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 562 S.E.2d
434 (2002), aff’d, 357 N.C. 44, 577 S.E.2d 620 (2003).
In
this case, plaintiff contends that she met her initial burden to show that she
was permanently and totally disabled based upon medical evidence presented by
one of her treating physicians. She further contends that the burden then
shifted to defendant to prove that she retained wage earning capacity. She
asserts that to rebut the presumption, defendant cannot use evidence that she
continued to work because her position had been highly modified due to her
disability. She further asserts that although she was capable of some work, it
would be futile to seek other employment based upon her preexisting conditions.
In
a careful review of the record, we note that the only medical evidence of
permanent and total disability was found in the testimony of Dr. Yellig. With
respect to Dr. Yellig’s testimony, the Commission made the following finding:
During his deposition, Dr. Yellig
initially testified that the plaintiff was permanently and totally disabled.
However, Dr. Yellig also testified that the plaintiff could work between two to
six hours per day with limited time and exertion and limited demands for speed
and productivity. Once presented with the definition of permanently and totally
disabled as “an inability to earn wages”, Dr. Yellig ultimately opined that
plaintiff was not permanently and totally disabled.
The Commission then concluded that
“[p]laintiff has failed to prove that she is permanently and totally disabled
as a result of her injury by accident of May 22, 1998 and is therefore not
entitled to permanent and total disability compensation.”
The
Commission correctly viewed the testimony of Dr. Yellig as a whole and then
determined that plaintiff had failed to prove that she was permanently and totally
disabled. The fact that a doctor gives an opinion of permanent and total
disability at some point in his testimony does not necessarily operate to shift
the burden to the defendant. The Commission properly concluded that the medical
testimony did not establish that plaintiff was permanently and totally
disabled.
The
Commission also considered preexisting conditions.
1. At
the time of the hearing before the Deputy Commissioner, plaintiff was 55 years
of age with a college degree in Spanish. Plaintiff’s work history includes
working in a hospital, working at Duke University’s library and working as a
library assistant for defendant-employer for 22 years.
2. Plaintiff’s
medical history includes high blood pressure, arthritis, and right thumb
surgery due to an arthritic condition nine years prior to the hearing before
the Deputy Commissioner. None of these conditions affected plaintiff’s ability
to work. Furthermore, plaintiff has no history of prior back problems.
. . . .
6. By
September 14, 1998, Dr. Yellig diagnosed plaintiff with fibromyalgia and
degenerative disc disease of the lumbosacral spine. He also prescribed Prozac
to treat plaintiff’s depression. By February 19, 1999, Dr. Yellig thought that
plaintiff suffered from chronic fatigue syndrome.
. . . .
9. Upon
referral from Dr. Yellig, plaintiff presented to Dr. T. Craig Derian, an
orthopedic surgeon, on July 1, 1999. Dr. Derian ordered an MRI, which revealed
that plaintiff had multiple level disc degeneration of the low back with no
definite disc rupture or spinal stenosis. Dr. Derian found plaintiff to be at
maximum medical improvement with a ten percent permanent partial disability of
the back. He also found plaintiff capable of performing light duty work with
frequent position changes and a fifteen-pound lifting restriction.
10. According
to Dr. Derian, the symptoms for which he treated plaintiff were related to her
fall of May 22, 1998 and plaintiff’s fall aggravated her pre-existing,
non-symptomatic degenerative disc condition. Dr. Derian also indicated that
plaintiff may continue to experience some waxing and waning of her pain
symptoms.
11. Plaintiff
was seen by George Venters, an orthopedic surgeon, on July 27, 1999 for an
independent medical examination. Dr. Venters indicated that the fall of May 22,
1998 did not cause plaintiff’s degenerative disc disease and that no further
active treatment was needed. He had a difficult time assessing a permanent
partial rating based on plaintiff’s subjective complaints, but he did indicate
that plaintiff’s permanent partial disability rating would be somewhere between
five and ten percent. Dr. Venters also recommended that plaintiff avoid
repetitive lifting and bending.
12. Throughout
her medical treatment following her injury by accident of May 22, 1998,
plaintiff continued to work in her regular job. Following the injury by
accident of May 22, 1998, plaintiff demonstrated an ability to continue to earn
wages. Accordingly, plaintiff is not permanently and totally disabled as a
result of any injuries or conditions relating to her injury by accident.
There were no preexisting conditions to
justify permanent and total disability. There is ample evidence in the record
to support each of these findings by the Commission. These findings, in turn,
support the Commission’s conclusion of law that plaintiff was not permanently
and totally disabled.
Plaintiff
failed to meet her burden of proof of showing permanent and total disability.
Thus, we need not discuss plaintiff’s contentions concerning any modifications
of her job. This assignment of error is without merit.
In
her second assignment of error, plaintiff argues that the Commission erred and
abused its discretion by refusing to allow plaintiff to present additional
evidence. We disagree.
Rule
701 of the Workers’ Compensation Rules sets forth procedures applicable to an
appeal to the Full Commission. Rule 701(6) provides that “[n]o new evidence
will be presented to or heard by the Full Commission unless the Commission in
its discretion so permits.” In this case, following the ruling by the Deputy
Commissioner on 20 October 2000, plaintiff moved, on 27 March 2001, for the
Full Commission to receive additional evidence. This evidence was an affidavit
from plaintiff stating that she had retired on disability, effective 24 January
2001. It also contained documents concerning her retirement and rehabilitation
evaluation dated 26 February 2001. The affidavit and attachments consisted of
some twenty-nine pages of material. In its opinion and award, the Full Commission
concluded that “[p]laintiff is not entitled to submit new evidence that
concerns the issue of change of condition which is more appropriate for a full
evidentiary hearing. The issue of change of condition is not properly before
the Full Commission.”
Plaintiff
contends that in order to show a change of condition under N.C. Gen. Stat.
§97-47, she would have to show a “substantial change in physical capacity to
earn wages, occurring after a final award of compensation[.]” Bailey v.
Sears Roebuck & Co., 131 N.C. App. 649, 654, 508 S.E.2d 831, 835
(1998). The final award of compensation here would be the opinion and award of
the Full Commission. Since this evidence predated the decision of the Full
Commission, plaintiff is precluded from introducing it at a subsequent hearing
under N.C. Gen. Stat. §97-47.
Taken
to its logical conclusion, plaintiff’s contention would compel the Full
Commission to accept any new evidence submitted between the time of the
hearing before the Deputy Commissioner and a hearing before the Full
Commission, if that evidence could be used in the future as a basis for a
change in condition under N.C. Gen. Stat. §97-47. This is clearly contrary to
the provisions of Rule 701(1) and would divest the Full Commission of its
discretion to consider new evidence. This assignment of error is without merit.
In
her third assignment of error, plaintiff argues that the Commission erred by
failing to award sanctions and/or attorney fees pursuant to N.C. Gen. Stat.
§97-88.1. We disagree and summarily hold that the record fails to show that the
Commission abused its discretion in declining to sanction NCSU.
AFFIRMED.
Judge
TYSON concurs.
Judge
WYNN dissents.
NO. COA02-842
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2003
DOROTHY
HUNT,
Employee,
Plaintiff-Appellant,
v. North
Carolina Industrial Commission
I.C.
File No. 839851
NORTH
CAROLINA STATE
UNIVERSITY,
Employer,
SELF-INSURED,
KEY RISK
MANAGEMENT
SERVICES,
Administering Agent,
Defendants-Appellees.
WYNN,
Judge dissenting.
Because
I conclude the North Carolina Industrial Commission (“Commission”) decided the
claimant’s motion to add new and additional evidence under a misapprehension of
the law and opted not to exercise its discretion, I dissent.
On
21 July 1999, the Deputy Commissioner heard evidence in Ms. Hunt’s claim for
worker’s compensation arising out of a 22 May 1998 work-related injury. After
this hearing, Ms. Hunt was removed from work by her physician on 24 November
1999. After receiving short-term disability benefits for one year, she was
notified on 20 February 2001 that she had been approved for long-term
disability benefits by the North Carolina Department of Treasury, Retirement
Division. After receiving this notification, she officially retired from N.C.
State University on 23 February 2001. At the time of her hearing before the
Deputy Commissioner, none of this information was available.
On
20 October 2000, the Deputy Commissioner rendered its Opinion and Award and
thereafter, Ms. Hunt filed her notice of appeal to the full Commission. After
preparation of the transcript, Ms. Hunt filed a Form 44, Application for
Review, on 16 February 2001 which listed her assignments of error. On 26
February 2001, she provided a sworn affidavit detailing her new and additional
evidence to her attorney, and then, on 27 March 2001, Ms. Hunt filed her motion
to receive new and additional evidence pursuant to N.C. Gen. Stat. §97-85 and
Rule 701 of the Workers’ Compensation Rules of the North Carolina Industrial Commission.
Instead of ruling upon her motion, the Commission held her motion in abeyance
until consideration by the Commission at the hearing on this matter.
In
the full Commission’s Opinion and Award, the Commission concluded:
7. Plaintiff
is not entitled to submit new evidence that concerns the issue of change of
condition which is more appropriate for a full evidentiary hearing. The issue
of change of condition is not properly before the Commission.
On appeal, Ms. Hunt contends the
Commission resolved her motion under a misapprehension of the law. Relying upon
Rule 701 of the Workers’ Compensation Rules, the majority held “since this
evidence predated the decision of the Full Commission, plaintiff is precluded
from introducing it at a subsequent hearing under N.C. Gen. Stat. §97-47. Taken
to its logical conclusion, plaintiff’s contention would compel the Full
Commission to accept any new evidence submitted between the time of the hearing
before the Full Commission, if that evidence could be used in the future as a
basis for a change in condition under N.C. Gen. Stat. §97-47. This is clearly
contrary to the provisions of Rule 701(1) and would divest the Full Commission
of its discretion to consider new evidence.” I respectfully disagree.
While
I agree with the majority’s conclusion that Ms. Hunt would not be able to seek
consideration of her new and additional evidence under the provisions of N.C.
Gen. Stat. §97-47, I disagree with their conclusion that “plaintiff’s
contention would compel the Full Commission to accept any new evidence
submitted between the time of the hearing before the Deputy Commissioner and a
hearing before the Full Commission.” Pursuant to N.C. Gen. Stat. §97-85 and
Rule 701(6) of the Workers’ Compensation Rules[Note 1], whether the full
Commission considers new evidence is within the sound discretion of the
Commission which is reviewable by our appellate courts for manifest abuse of
discretion. See Keel v. H & V Inc., 107 N.C. App. 536, 542, 421
S.E.2d 362, 366-67 (1992)(stating “the powers granted the Commission to review
the award and to receive additional evidence are plenary powers to be exercised
in the sound discretion of the Commission. Whether such good ground has been
shown is discretionary and will not be reviewed on appeal absent a showing of
manifest abuse of discretion.”); see also Pittman v. International Paper Co.,
132 N.C. App. 151, 156, 510 S.E.2d 705, 708 (1999), aff’d by 351 N.C.
42, 519 S.E.2d 524 (1999)(stating that “in exercising its discretion to receive
additional evidence, the Commission should consider all the circumstances of
the case, including the delay involved in taking additional evidence, and
should not encourage a lack of pre-deposition preparation by counsel or
witnesses”). In this case, however, the full Commission did not realize it was
within its discretion to consider Ms. Hunt’s new and additional evidence.
Accordingly, this case should have been remanded to the full Commission for a
resolution of the claimant’s motion.
1. N.C. Gen. Stat. §97-85 states “If application is made to the Commission...the full Commission shall review the award, and if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award.... Rule 701(6) of the Workers’ Compensation Rules states “No new evidence will be presented to or heard by the Full Commission unless the Commission in its discretion so permits.”