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NO. COA05-1010
NORTH CAROLINA
COURT OF APPEALS
Filed: 5
September 2006
DAPHNE SHARPE,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. 844411
REX HEALTHCARE,
Employer,
ALLIED CLAIMS ADMINISTRATION,
Carrier,
Defendants.
Appeal by
plaintiff from opinion and award entered 12 April 2005 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 23 February 2006.
Michael J.
Anderson, for plaintiff-appellant.
Young Moore and
Henderson P.A., by Dawn D. Raynor and Angela N. Farag, for
defendants-appellees.
TYSON, Judge.
Daphne Sharpe
(“plaintiff”) appeals from the North Carolina Industrial Commission’s opinion
and award (“the Commission”) denying her claim for further compensation and
medical benefits under the North Carolina Workers’ Compensation Act. We affirm.
I. Background
On 20 June
1998, plaintiff was employed by Rex Healthcare (“Rex”) as a certified nursing
assistant. Plaintiff injured her back
while lifting a patient from the floor.
Plaintiff’s original claim for benefits was accepted by defendants’
filing a Form 60 on 23 July 1998. Plaintiff
was initially treated by Dr. Douglas Hammer (“Dr. Hammer”) at Rex. Dr. Hammer recommended physical therapy and
referred plaintiff to Dr. Scott Sanitate (“Dr. Santate”), who administered
epidural injections. Plaintiff was also
referred to Dr. James Fulghum (“Dr. Fulghum”), who performed surgery on an
herniated disc in plaintiff’s spine on 16 December 1998. Dr. Fulghum released plaintiff during late
April or early May 1999, and indicated she had reached maximum medical
improvement and had sustained a 10% permanent partial rating. Dr. Fulghum also restricted plaintiff’s
work, limiting lifting. Plaintiff was
advised to refrain from frequent twisting or bending. A Form 28 Return to Work Report was approved by defendants and
filed with the Commission on 27 July 1998.
Plaintiff
accepted a job at the pediatric unit at Rex Hospital. Plaintiff greeted family members and screened and monitored
children during the day. Rex Hospital
staff were aware of plaintiff’s lifting restrictions and provided her assistance
when needed. Plaintiff’s work
attendance was not consistent.
Plaintiff last day at work at Rex Hospital was 2 August 1999. On 10 August 1999, plaintiff’s husband
called Rex Hospital and stated she would not attend work. Rex Hospital terminated plaintiff. Following this termination, plaintiff
remained unemployed.
On 31 August
2001, the Commission concluded plaintiff had refused suitable employment and
was not entitled to further compensation until her refusal to work ceased.
In 2001,
plaintiff continued treatment with her personal physician, Dr. Hand, while also
under the care of Drs. Fulghum and Sanitate.
Dr. Hand recommended plaintiff see Dr. William Deans (“Dr. Deans”), a
board certified neurologist, for pain management. Dr. Deans opined plaintiff’s recurrent disc herniation was an
exacerbation of her condition and increased pain. Dr. Deans referred plaintiff to another neurosurgeon, Dr. Lucas
Martinez (“Dr. Martinez”).
Dr. Martinez
performed a second surgery on plaintiff’s back on 15 November 2002. Plaintiff testified that she “got a little
relief” from this surgery. Plaintiff
never contacted Rex or their insurance carrier, Allied Claims, for
authorization for the treatment rendered either by Dr. Hand or Dr. Deans, or
approval for the surgeries by Dr. Martinez during 2001 and 2002.
Rex filed a
Form 28B on 13 April 2000 stating the “last compensation check was forwarded”
on 17 May 1999, and the “last medical compensation was paid” on 24 January
2001.
Plaintiff filed
a Form 33 on 3 October 2002 requesting a new hearing. Plaintiff claimed defendants refused to pay temporary total
disability benefits. Defendants filed a
Form 33R and responded that “[p]laintiff has never requested temporary total
disability compensation since an Opinion and Award filed on August 31, 2001 was
filed denying her claim for temporary total disability benefits.”
On 17 June
2004, Deputy Commissioner Baddour entered an opinion and award finding
plaintiff failed to show her unjustified refusal to return to work had ceased,
and concluded she was not entitled to any further compensation or medical
expenses. On 12 April 2005, the Full
Commission affirmed Deputy Commissioner Baddour’s findings:
1. Defendant-carrier
mailed plaintiff’s final indemnity check on or about May 17, 1999. Defendant-carrier filed a Form 28B on or
about April 13, 2000, followed by a revised Form 28B that was filed on or about
November 16, 2001. Both the first Form
28B and the second Form 28B indicate that the last compensation check was
forwarded to plaintiff on May 17, 1999.
2. Defendant-carrier
made the final payment for authorized medical expenses on or about January 4,
2001, as indicated on the revised Form 28B.
3. On
August 31, 2001, the Full Commission filed an Opinion and Award in this matter
that contained the following Conclusion of Law: “Plaintiff refused employment procured for her suitable to her
capacity; therefore, plaintiff is not entitled to compensation under the
provisions of the North Carolina Workers’ Compensation Act until such refusal
ceases. N.C. Gen. Stat. §97-32.” The
Full Commission’s Opinion and Award contained the following Order: “Under the law, plaintiff’s claim for
workers’ compensation benefits must be, and the same is hereby suspended.”
4. Plaintiff
did not appeal the Full Commission’s Opinion and Award filed on August 31,
2001.
5. Following
the filing of the Full Commission’s Opinion and Award on August 31, 2001,
plaintiff never approached the defendant-employer regarding returning to work.
6. Plaintiff
failed to show that her unjustified refusal to return to work has ceased.
. . . .
8. Plaintiff
did not claim any other benefits on the Form 33 filed October 3, 2002. Specifically, plaintiff checked the box
indicating a claim for “payment of compensation for days missed” and did not
check the box indicating a claim for “payment of medical expenses/treatment.”
9. On or
about April 24, 2003, plaintiff asserted, for the first time, a claim for
payment of past unauthorized medical expenses and a claim for payment of future
medical expenses. These claims were
raised as issues in the pretrial agreement for the hearing on April 24, 2003
before the undersigned.
10. Plaintiff
has never requested a change of treating physician and has not sought approval
and payment of unauthorized medical expenses within a reasonable time.
11. Plaintiff
failed to make a claim for a change of condition within two years of
defendants’ last payment of indemnity compensation.
12. Plaintiff
failed to file a Form 18M, or otherwise make a claim for additional medical
compensation within two years of defendants’ last payment of medical or
indemnity compensation.
The Full
Commission concluded:
1. The
Full Commission’s Opinion and Award filed on August 31, 2001 is conclusive and
binding. Because plaintiff failed to
show that her unjustified refusal to return to work has ceased, plaintiff is
not entitled to payment of any additional compensation, including temporary
total disability compensation or an impairment rating. N.C. Gen. Stat. §§97-86; 97-2(11).
2. Plaintiff
failed to request approval of unauthorized medical expenses within a reasonable
time. N.C. Gen. Stat. §97-25.
3. Plaintiff
failed to make a claim for a change of condition within two years of
defendants’ last payment of indemnity compensation. Accordingly, plaintiff’s claim for additional indemnity
compensation based upon a change of condition is time barred. N.C. Gen. Stat. §97-47.
4. Plaintiff failed to file a Form 18M, or otherwise make a claim, for additional medical compensation within two years of the employer’s last payment of medical or indemnity compensation. Accordingly, plaintiff’s claim for additional medical compensation is time barred. N.C. Gen. Stat. §97-25.1; NCIC Workers’ Compensation Rule 408.
Plaintiff
appeals solely from the 12 April 2005 opinion and award.
II. Issues
Plaintiff
argues the Commission erred in: (1)
denying her claim for further compensation by concluding she failed to show
that her unjustified refusal to return to work has ceased; (2) concluding that
the two-year limitations period contained in N.C. Gen. Stat. §97-47 precluded a
change of condition claim; and (3) denying her request for change in treating
physicians.
Plaintiff’s
remaining assignments of error not carried forward and argued in her brief are
deemed abandoned and dismissed. N.C.R.
App. P. 28(b)(6) (2006).
“The standard
of review on appeal to this Court from an award by the Commission is whether
there is any competent evidence in the record to support the Commission’s
findings and whether those findings support the Commission’s conclusions of
law.” Oliver v. Lane Co., 143
N.C. App. 167, 170, 544 S.E.2d 606, 608 (2001). This Court does not re-weigh evidence or assess credibility of
witnesses. Adams v. AVX Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).
“[I]f . . . competent evidence support[s] the findings, they are
conclusive on appeal even though . . . plenary evidence [may] support contrary
findings.” Oliver, 143 N.C. App.
at 170, 544 S.E.2d at 608 (citations omitted).
“The Commission may weigh the evidence and believe all, none or some of
the evidence.” Hawley v. Wayne Dale
Constr., 146 N.C. App. 423, 428, 552 S.E.2d 269, 272, disc. rev. denied,
355 N.C. 211, 558 S.E.2d 868 (2001).
“The Commission’s conclusions of law are reviewable de novo.” Arnold v. Wal-Mart Stores, Inc., 154
N.C. App. 482, 484, 571 S.E.2d 888, 891 (2002).
IV. Refusal to Work
Plaintiff
argues that the Commission erred in denying her claim for further compensation
after concluding she failed to show she had ceased her unjustified refusal to
return to work.
Under the North
Carolina Workers’ Compensation Act, a disability is defined as “incapacity
because of injury to earn the wages which the employee was receiving at the
time of injury in the same or any other employment.” N.C. Gen. Stat. §97-2(9) (2005).
The term “disability” refers to diminished earning capacity. “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).
Plaintiff
challenges findings of fact numbered 5 and 6, contending they are “contrary to
any competent evidence.” We disagree.
Competent
evidence in the record demonstrates that plaintiff never approached Rex about
returning to work after Rex Hospital terminated her employment for
absences. Plaintiff also failed to
present any evidence showing that she accepted or looked for other suitable
employment in conformity with her prescribed work restrictions. While plaintiff testified she could not work
because she was still hurt and argues on appeal competent evidence in the
record supports this contention, it is not the role of this Court to re-weigh
the evidence or substitute our evaluation or credibility of the evidence for
that of the Commission. See Roberts
v. Century Contrs., Inc., 162 N.C. App. 688, 691, 592 S.E.2d 215,
218 (2004). We conclude that findings
of fact numbered 5 and 6 are supported by competent evidence. Plaintiff’s assignment of error is
overruled.
V. Two-Year Limitations Period
Plaintiff next
contends the two year limitations period to file for a change of condition
pursuant to N.C. Gen. Stat. §97-47 did not run, and defendants owe her the ten
percent permanent partial disability pursuant to the 31 August 2001 award. We disagree.
Under N.C. Gen.
Stat. §97-47 (2005):
the Industrial
Commission may review any award, and on such review may make an award ending,
diminishing, or increasing the compensation previously awarded . . . . No such
review shall affect such award as regards any moneys paid but no such review
shall be made after two years from the date of the last payment of compensation
pursuant to an award under this Article.
The time
limitation commences to run from the date on which employee received the last
payment of compensation, not from the date the employee receives a Form
28B. Cook v. Southern Bonded, Inc.,
82 N.C. App. 277, 280, 346 S.E.2d 168, 170 (1986), disc. rev. denied,
318 N.C. 692, 351 S.E.2d 741 (1987).
Plaintiff
received her last compensation check on 17 May 1999. The two-year limitation period for filing a change of condition
began to run on 17 May 1999. Plaintiff
filed for a change of condition on 3 October 2002, more than two years after
her receipt of her last compensation check.
Plaintiff failed to file a timely claim asserting a change of her
condition.
Plaintiff also failed to appeal from the Full Commission’s 31 August 2001 award. In its 12 April 2005 opinion and award, the Commission’s conclusion of law numbered 1 states:
The Full
Commission’s Opinion and Award filed on August 31, 2001 is conclusive and
binding. Because plaintiff failed to
show that her unjustified refusal to return to work has ceased, plaintiff is
not entitled to payment of any additional compensation, including temporary
total disability compensation or an impairment rating. N.C. Gen. Stat. §§97-86; 97-2(11).
Under N.C. Gen.
Stat. §97-86, “an award of the [full] Commission . . . shall be conclusive and
binding as to all questions of fact; but either party to the dispute may,
within 30 days from the date of such award . . . appeal from the decision of
said Commission to the Court of Appeals for errors of law . . . .” N.C. Gen. Stat. §97-86 (2005); see Hall
v. Thomason Chevrolet, Inc., 263 N.C. 569, 575, 139 S.E.2d 857, 861 (1965)
(an award of the Commission, if not reviewed in due time as provided in the
Act, is conclusive and binding as to all questions of fact).
Plaintiff
failed to appeal from the 31 August 2001 award and lost her right to appeal
from the Commission’s conclusion denying her compensation. The opinion and award’s findings of fact are
conclusive and binding. Hall,
263 N.C. at 575, 139 S.E.2d at 861.
Plaintiff
appeals solely from the 12 April 2005 Commission’s opinion and award. The Commission’s finding of fact numbered 1
which states, “defendant-carrier mailed plaintiff’s final indemnity check on or
about May 17, 1999,” is supported by competent evidence in the record. Defendants’ amended Form 28B states
plaintiff’s last compensation check was forwarded to her on 17 May 1999. The Commission’s conclusion of law numbered
4 which states, “plaintiff failed to file a Form 18M, or otherwise make a
claim, for additional medical compensation within two years of the employer’s
last payment of medical or indemnity compensation,” is supported by finding of
fact numbered 1. Plaintiff’s assignment
of error is overruled.
Plaintiff next
contends that conclusion of law numbered 1 is erroneous because “the credible
facts support the conclusion that the Full Commission’s Opinion and Award filed
on August 31, 2001 is not conclusive and binding[.]” This conclusion of law is fully supported by findings of fact in
the opinion and award. Plaintiff also
contends that conclusion of law numbered 2 is erroneous because “it is contrary
to the facts[.]” This conclusion is
fully supported by competent evidence and the findings of fact in the opinion
and award. This assignment of error is
overruled.
VI. Treating Physicians
Plaintiff
argues “Dr. Deans and Dr. Martinez should be approved as [her] treating
physicians.” Presuming, arguendo,
this issue was preserved by plaintiff’s assignments of error, it has no
merit. Plaintiff raised the issue of
payment for unauthorized medical treatments more than three years after
defendants made their last payment of medical compensation for authorized
treatment. At the 24 April 2003
hearing, plaintiff acknowledged she never sought permission from the Commission
to change her treating physicians to Drs. Deans and Martinez. The Commission did not err in finding and
concluding that plaintiff failed to timely request a change of treating
physicians within a reasonable time.
VII. Conclusion
The
Commission’s conclusions of law are supported by its findings of fact, which
findings are supported by competent evidence in the record. The Commission’s 12 April 2005 opinion and
award is affirmed.
Affirmed.
Judge
MCCULLOUGH concurs.
Judge LEVINSON
concurs in part, dissents in part by separate opinion.
NO.
COA05-1010
NORTH CAROLINA
COURT OF APPEALS
Filed: 5
September 2006
DAPHNE SHARPE,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. 844411
REX HEALTHCARE,
Employer,
ALLIED CLAIMS ADMINISTRATION,
Carrier,
Defendants.
LEVINSON, Judge
concurring in part and dissenting in part.
I concur in the
majority opinion except to the extent it concludes that the two year
limitations period contained in G.S. §97-47 has expired. This appeal primarily concerns the
interpretation and application of this statute. Before the Industrial Commission, plaintiff alleged a change of
condition primarily because she sought additional medical compensation. The majority opinion, instead, frames the
main issue on appeal as whether plaintiff can compel defendants to pay the ten
percent rating.
On appeal,
plaintiff contends that because defendants have not yet paid her the ten
percent permanent partial disability, the G.S. §97-47 two year limitations
period to file for a change of condition has not expired. This argument has merit.
Here, the 31
August 2001 opinion and award, expressly citing G.S. §97-32, provided that
plaintiff was “not entitled to compensation under the provisions of the North
Carolina Workers’ Compensation Act until [her refusal to accept employment]
ceases.” Suspension under G.S. §97-32
is temporary, and the last potential payment could not have occurred because
the ten percent rating was payable if the suspension ended. In short, the limitations period in G.S.
§97-47 had not yet begun to expire by virtue of any compensation payments made
in 1999, as the majority concludes. In
my view, the reasoning of the majority opinion does not take the G.S. §97-32
suspension into account.