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NO. COA07-1437
NORTH CAROLINA COURT OF APPEALS
Filed:
2 September 2008
ROBBIE C. SCARBORO,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. 877002
EMERY WORLDWIDE FREIGHT CORP.,
Employer,
CONSTITUTION STATE SERVICE
COMPANY,
Carrier,
Defendants.
Appeal by plaintiff and defendants from opinion and award
entered 7 August 2007 by the Full Commission.
Heard in the Court of Appeals 30 April 2008.
Sellers,
Hinshaw, Ayers, Dortch and Lyons, P.A. by John F. Ayers, III, for plaintiff.
Hedrick,
Gardner, Kincheloe & Garofalo, L.L.P., by M. Duane Jones, for defendants.
ELMORE, Judge.
Both parties in this case appeal from an Opinion and Award
issued by the Full Commission on 7 August 2007. For the reasons stated below, we affirm the Full Commission’s
Opinion and Award.
Robbie Scarboro (plaintiff) was employed as a utility driver
for Emery Worldwide Freight Corporation (defendant). On 4 November 1998, plaintiff injured his upper back and left
shoulder while he was unloading freight off of a truck. Defendants filed a Form 60 admitting
compensability of plaintiff’s injuries.
On 14 March 2001, Deputy Commissioner (now Commissioner) Pamela T. Young
filed an Opinion and Award which found plaintiff’s injury to be causally
related to his 4 November 1998 accident.
Since plaintiff’s injury, he has been treated by numerous
physicians. On 5 January 2001,
neurologist Dr. Erik Borresen began treating plaintiff and has remained his
primary treating physician. Dr.
Borresen diagnosed plaintiff as having “left low thoracic neuropathy, left
pectoralis transposition, chronic myofascial neck and shoulder pain, chest
pain, lumbar disc disease, right knee meniscal tear, depression, and muscle
contraction headaches.” Plaintiff has a
fifty percent permanent partial impairment as a result of his chronic pain
disorder and a forty percent permanent functional impairment to his left
shoulder. Dr. Borresen said that it was
highly unlikely that plaintiff would return to gainful employment. On 2 February 2002, a life care plan was
prepared for plaintiff by Ms. Laura Weiss, a registered nurse, certified life
care planner, certified case manager, and certified disability management
specialist. The life care plan included
recommendations that plaintiff be provided lawn care services and that grab
rails and handrails be installed in his home.
Dr. Borresen reviewed the life care plan and agreed that the
recommendations were reasonable and medically necessary.
Deputy Commissioner Bradley W. Houser heard this case on 23
July 2003. Deputy Commissioner Houser
issued an Opinion and Award on 12 November 2003. Plaintiff appealed the 12 November 2003 Opinion and Award to the
Full Commission. On 26 October 2004,
the Full Commission entered an Opinion and Award that ordered defendants to
provide the Botox injections ordered by Dr. Borresen and the recommended home
guard rails. It also concluded that
there was insufficient evidence on the issue of lawn care services, but did not
make a final decision as to whether medical evidence could sufficiently support
lawn care services for plaintiff.
On 26 May 2005, plaintiff requested that defendants
reimburse him for $4,700.58, the cost of the life care plan, but defendants
refused. On 1 July 2005, plaintiff
filed a Motion for Approval of Specific Medical Treatment/Life Care Plan, which
Special Deputy Commissioner Meredith Henderson denied on 22 July 2005. Plaintiff subsequently filed a Form 33
appealing the 22 July 2005 order and requesting further decision on the medical
necessity for lawn care services.
On 16 November 2005, the appeal was heard before Deputy
Commissioner Ronnie E. Rowell. Deputy
Commissioner Rowell filed an Opinion and Award on 10 October 2006 that required
defendants to pay for the preparation of plaintiff’s life care plan and to
provide plaintiff compensation for lawn care services.
Defendants appealed the 10 October 2006 Opinion and Award
and the matter was heard before the Full Commission on 24 May 2007. On 7 August 2007, the Full Commission
entered an Opinion and Award that denied plaintiff compensation for lawn care
services and ordered defendants to reimburse plaintiff for the costs associated
with preparing his life care plan.
Plaintiff appeals the Full Commission’s denial of lawn care services and
defendants appeal the order requiring them to pay for the preparation of
plaintiff’s life care plan.
I. STANDARD OF REVIEW
Our review of an appeal from a decision of the North
Carolina Industrial Commission is limited to the following: (1) “whether there was any competent
evidence to support the Full Commission’s findings of fact” and (2) “whether
these findings of fact support the conclusions of law.” Ard v. Owens-Illinois, 182 N.C. App.
493, 496, 642 S.E.2d 257, 259 (2007) (quotations and emphasis omitted). A finding of fact is “conclusive on appeal
if supported by any competent evidence[,]” even where there is evidence to
contradict the finding. Adams v. AVX
Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quotations
removed). We review the Full
Commission’s conclusions of law de novo. Oxendine v. TWL, Inc., 184 N.C. App. 162, 164, 645 S.E.2d
864, 865 (2007).
II. PLAINTIFF’S APPEAL
Plaintiff appeals the Full Commission’s denial of the lawn
care services and assigns error to conclusion of law 4, which states the
following:
An ordinary
necessity of life is to be paid from the statutory wages provided by the
Workers’ Compensation Act.
Extraordinary and unusual expenses are embraced in the “other treatment”
language of N.C. Gen. Stat. §97-25. . . .
In the present case, the lawn care services recommended by the life care
plan are ordinary expenses of life for plaintiff and are not extraordinary and
unusual expenses that plaintiff has incurred as a result of his work-related
injury. Accordingly, these expenses are
not payable by defendants. N.C. Gen.
Stat. §§97-25;-2(19);-29.
Plaintiff
has not assigned error to any findings of fact; therefore all factual findings
are “presumed to be supported by the evidence and are binding on appeal.” Watson v. Employment Security Comm.,
111 N.C. App. 410, 412, 432 S.E.2d 399, 400 (1993) (citing Beaver v. Paint
Co., 240 N.C. 328, 330, 82 S.E.2d 113, 114 (1954)). Our review of plaintiff’s appeal is limited
to whether conclusion of law 4 is supported by the factual findings.
The North Carolina Workers’ Compensation Act requires
employers to provide medical compensation to workers “who suffer disability by
accident arising out of and in the course of their employment.” Henry v. Leather Co., 234 N.C. 126,
127, 66 S.E.2d 693, 694 (1951). N.C.
Gen. Stat. §97-25 states that “[m]edical compensation shall be provided by the
employer.” N.C. Gen. Stat. §97-25
(2007).[Note 1] Medical
compensation is:
medical,
surgical, hospital, nursing, and rehabilitative services, and medicines, sick
travel, and other treatment, including medical and surgical supplies, as
may reasonably be required to effect a cure or give relief and for such
additional time as, in the judgment of the Commission, will tend to lessen the
period of disability[.]
N.C.
Gen. Stat. §97-2(19) (2007) (emphasis added).
Plaintiff argues that the lawn care services, recommended by the life
care plan, are reasonably medically necessary because of his chronic pain
condition. Plaintiff asserts that the
lawn care services are not an ordinary expense, but instead are an
extraordinary and unusual expense included in the “other treatment” language of
N.C. Gen. Stat. §97-25. N.C. Gen. Stat.
§97-25 (2007).
“One purpose of the Workers’ Compensation Act is to [e]nsure
a limited and determinate liability for employers.” Grantham v. Cherry Hosp., 98 N.C. App.
34, 40, 389 S.E.2d 822, 826 (1990).
“While the Act should be liberally construed to benefit the employee,
the plain and unmistakable language of the statute must be followed.” Id.
To this end, “courts must not legislate expanded liability under the
guise of construing a statute liberally.”
McDonald v. Brunswick Elec. Membership Corp., 77 N.C. App.
753, 756, 336 S.E.2d 407, 409 (1985).
North Carolina courts have previously interpreted the term
“other treatment” in relation to N.C. Gen. Stat. §97-29.[Note 2] N.C. Gen. Stat. §97-29 (Supp. 1989); see
McDonald, 77 N.C. App. at 755-57, 336 S.E.2d at 409 (holding that
neither “other treatment or care” nor “rehabilitative services” can be
interpreted to include providing the wheelchair-using plaintiff with compensation
for his specially equipped van); Godwin
v. Swift & Co., 270 N.C. 690, 694-95, 155 S.E.2d 157, 160-61 (1967)
(determining that providing compensation to the relatives of a claimant who
needed constant care was included in “other treatment”).
In Grantham v. Cherry Hospital, this Court held that
the Full Commission improperly ordered the defendant to pay the plaintiff’s
consumer debts under the “other
treatment . . . or rehabilitative services” provision of N.C. Gen. Stat.
§97-29. 98 N.C. App. at 40, 389 S.E.2d
at 825; N.C. Gen. Stat. §97-29 (Supp.
1989). In Grantham, the
plaintiff had accumulated nearly $28,000.00 in debt because his income had
substantially decreased after he became disabled. Id. at 35, 389 S.E.2d at 822. The plaintiff’s physician testified that as a result of the
plaintiff’s indebtedness, the plaintiff had developed depression, which was
interfering with his rehabilitation. Id. The defendant was ordered to pay the
plaintiff’s debts in order to improve his rehabilitation. Id. at 36, 389 S.E.2d at 823. We reversed this order and held that the
Industrial Commission had misinterpreted the statute by ordering expenses for
basic necessities under the guise of rehabilitative services. Id. at 40-41, 389 S.E.2d at 826. Applying the above principles to the facts
of this case, we do not find that the lawn care services for plaintiff fall
into the category of “other treatment” pursuant to N.C. Gen. Stat. §97-25.
The determination of “what treatment is appropriate for a
particular employee is a matter within the exclusive jurisdiction of the [Full]
Commission.” N.C. Chiropractic
Assoc. v. Aetna Casualty & Surety Co., 89 N.C. App. 1, 5, 365 S.E.2d
312, 314 (1988). The Full Commission
“is not required to make ‘exhaustive findings as to each statement made by any
given witness or make findings rejecting specific evidence[.]’” Smith v. Beasley Enters., Inc., 148
N.C. App. 559, 562, 577 S.E.2d 902, 904 (2002) (quoting Bryant v.
Weyerhaeuser Co., 130 N.C. App. 135, 139, 502 S.E.2d 58, 62 (1998)). The factual findings are sufficient so long
as this Court can “reasonably infer that [the Full Commission] gave proper
consideration to all relevant testimony.” Id. Here, the
findings of fact contain information about plaintiff’s injury and medical treatments,
plaintiff’s testimony about his lawn care services, and a few physicians’
recommendations on the matter. These
factual findings provided the Full Commission with all of the relevant
information it needed to decide whether the lawn care services for plaintiff
were medically necessary.
The recommendations in plaintiff’s life care plan as well as
his physicians’ testimony supported his argument that the lawn care services
were medically necessary. However,
defendants also provided evidence supporting their contention that the lawn
care services for plaintiff were an ordinary expense, not included in his
medical compensation from defendants.
This Court may not weigh the evidence or evaluate the credibility of witnesses,
as “‘[t]he Commission is the sole judge of the credibility of the witnesses and
the weight to be given their testimony.’”
Adams, 349 N.C. at 680, 509 S.E.2d at 413 (quoting Anderson v.
Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)).
We find that the Full Commission’s factual findings support
its conclusion of law that the lawn care services for plaintiff are not
extraordinary or unusual expenses included in the “other treatment” language of
N.C. Gen. Stat. §97-25. N.C. Gen. Stat.
§97-25 (2007). Findings of fact 8 and 9
recount Dr. Dickerson’s opinions that “with [plaintiff’s] orthopedic problems,
specifically [his] back problems . . . yard work is contraindicated in [his]
case” and “it would be hard for [plaintiff] to do his yard work without having
a lot of pain, so I don’t have an objection to [lawn care services] in this
particular case.” In finding of fact
10, Dr. Chewning, an orthopedic surgeon, testified that “due to [plaintiff’s]
back and his shoulder problems, plaintiff should stay away from lawn mowing
activities[.]” Furthermore, factual
finding 11 stated that plaintiff had previously cut his own grass and has since
hired a lawn care service because “he feared penalties would be levied against
him by his homeowners’ association for violating his restrictive covenants by
failing to keep his lawn presentable.”
Plaintiff contends that the Full Commission’s factual
findings could only support a conclusion that the lawn care services are
medically necessary for plaintiff. We
disagree. The factual findings establish
that because of plaintiff’s medical condition, he should refrain from mowing
his lawn. We understand and appreciate
plaintiff’s efforts to keep his yard in compliance with the rules of his homeowners’ association.
However, providing plaintiff with the resources to comply with this
restrictive covenant does not rise to the level of “other treatment[.]” These factual findings support the
conclusion that the lawn care services are an ordinary expense of life, which
is not included in medical compensation, pursuant to N.C. Gen. Stat. §97-2(19)
and N.C. Gen. Stat.§97-25.
We also agree with defendants’ argument that just because
the life care plan was determined to be a reasonable medical expense,
defendants are not necessarily required to pay for each item mentioned in the
plan. See Timmons v. N.C. Dept. of
Transportation, 130 N.C. App. 745, 750, 504 S.E.2d 567, 570 (1998) (Timmons
II) (finding that an order requiring the defendant to pay for preparation
of the plaintiff’s life care plan does not require that the defendant must pay
for each item recommended in the plan), rev’d on other grounds, 351 N.C.
177, 522 S.E.2d 62 (1999) (Timmons IV).
Due to the aforementioned factors, we do not find error in the Full
Commission’s denial of lawn care services for plaintiff.
II. DEFENDANTS’ APPEAL
Defendants appeal the Full Commission’s order requiring them
to pay the costs of preparing a life care plan for plaintiff. Defendants assign error to conclusion of law
2 which states the following:
The greater weight of the evidence shows that the life care
plan has been pertinent to plaintiff’s case and was reasonably necessary for
plaintiff to function optimally, avoid potential complications related to his
injuries, and live a productive life.
As such, the life care plan was a “reasonable rehabilitative
service.” N.C. Gen. Stat.
§§97-2(19);-25; Timmons v. N.C. Dept. of Transportation, 351 N.C. 177, 522
S.E.2d 62 (1999).
The
Full Commission’s conclusion that plaintiff’s life care plan was a “reasonable
rehabilitative service[,]” pursuant to N.C. Gen. Stat. §97-2(19) and N.C. Gen.
Stat. §97-25, is supported by its factual findings. We affirm the Full Commission’s order taxing the costs of
preparing plaintiff’s life plan to defendants.
In workers’ compensation cases, the employer is required to
provide the injured employee with medical compensation, which includes
“medical, surgical, hospital, nursing, and rehabilitative services . . .
as may reasonably be required to effect a cure or give relief[.]” N.C. Gen. Stat. §97-2(19) (2007) (emphasis
supplied); N.C. Gen. Stat. §97-25 (2007).
The Full Commission “has discretion in determining whether a
rehabilitative service will effect a cure, give relief, or will lessen a
claimant’s period of disability.” Foster
v. U.S. Airways, Inc., 149 N.C. App. 913, 923, 563 S.E.2d 235, 242
(2002). Defendants contend that the
order was improper because plaintiff’s life care plan was never recommended by
an authorized treating physician.
Defendants also question Ms. Weiss’s qualifications to prepare the life
care plan and argue that they have never used the life care plan in their
medical treatment decisions for plaintiff.
The arguments have no merit and are irrelevant to our review of the Full
Commission’s Opinion and Award.
As previously discussed, we can only review a decision of
the North Carolina Industrial Commission to determine if the factual findings
are supported by competent evidence and if the conclusions of law are supported
by the factual findings. Ard,
182 N.C. App. at 496, 642 S.E.2d at 259.
We find that conclusion of law 2 is sufficiently supported by the
factual findings.
Our Supreme Court has previously decided that pursuant to
N.C. Gen. Stat. §97-2(19) and N.C. Gen.
Stat. §97-25, preparation of a life care plan can constitute a rehabilitative
service. See Timmons IV,
351 N.C. at 182, 522 S.E.2d at 65.
In Timmons IV, a rehabilitation expert recommended developing a
life care plan to evaluate the plaintiff’s medical needs. Id. at 182, 522 S.E.2d at 64-65. Our Supreme Court held that the
rehabilitation expert’s recommendation provided competent evidence to support
the finding that the plaintiff’s life care plan was a rehabilitative service,
pursuant to N.C. Gen. Stat. §97-25. Id.
We do not need to discuss each of the Full Commission’s
factual findings that support conclusion of law 2. Conclusion of law 2 can be sufficiently supported by finding of
fact 6, which states the following:
On February 6, 2002, a life care plan was prepared by Laura
Weiss, a registered nurse, certified life care planner, certified case manager,
and certified disability management specialist. The life care plan included recommendations that plaintiff be
provided lawn care services and that grab rails be installed in plaintiff’s
home. Dr. Borresen subsequently reviewed the life care plan and agreed that
such accommodations were reasonable and medically necessary. Defendants provided handrails and grab rails
for Plaintiff, but denied lawn care services.
Defendants
have not assigned error to this factual finding; therefore the finding is
“presumed to be supported by the evidence and [is] binding on appeal.” Watson, 111 N.C. App. at 412, 432
S.E.2d at 400. Dr. Borresen’s opinion,
that the life care plan was medically necessary for plaintiff, supports the
Full Commission’s conclusion that the life care plan was a “reasonable
rehabilitative service” for plaintiff.
For these reasons, we affirm the Full Commission’s order to tax the cost
of preparing plaintiff’s life plan to defendants.
III. CONCLUSION
Having conducted a thorough review of the record and briefs, we discern no error in the Full Commission’s Opinion and Award. Accordingly, we must affirm.
Affirmed.
Judges McGEE and JACKSON concur.
NOTES
1. All relevant provisions in N.C. Gen.
Stat. §97-25 and §N.C. Gen. Stat. 97-2(19) contained the same language when
plaintiff filed his claim. See
N.C. Gen. Stat. §97-2(19)(2003); N.C. Gen. Stat. §97-25 (2003).
2. N.C. Gen Stat. §97-29 previously
stated that “compensation, including reasonable and necessary nursing services,
medicines, sick travel, medical, hospital, and other treatment of [sic]
care or rehabilitative services shall be paid by the employer [.]” N.C. Gen Stat. §97-29 (Supp. 1989) (emphasis
added). Similar language is now codified
in N.C. Gen. Stat. §97-2(19), which is used to define for “medical
compensation” in N.C. Gen. Stat. §97-25.
N.C. Gen. Stat. §97-2(19) (2007); N.C. Gen. Stat. §97-25 (2007); N.C.
Gen. Stat. §97-29 (Supp. 1989).