All
opinions are subject to modification and technical correction prior to official
publication in the
NO. COA07-1401
Filed: 7 October 2008
BILLY MEARES,
Employee,
Plaintiff,
v.
I.C.
File No. 988084
DANA
CORPORATION,
Employer,
and
Self-Insured
SPECIALITY RISK SERVICES,
Third-Party Administrator,
Defendants.
Appeal
by defendants from Opinion and Award entered 1 August 2007 by the North
Carolina Industrial Commission. Heard in
the Court of Appeals 2 April 2008.
The Sumwalt Law
Firm, by
Hedrick, Gardner,
Kincheloe & Garofalo, L.L.P., by Paul C. Lawrence, Adam E. Whitten and
Margaret M. Kingston, for defendant-appellants.
STROUD,
Judge.
The
issues presented by defendants are: (1) whether there was a change in condition
such that the Industrial Commission should have changed its prior award and
declared plaintiff to be permanently disabled under N.C. Gen. Stat. §97-29, and
(2) whether the award of attorney’s fees under N.C. Gen. Stat. §97-88.1 was
appropriate. As to the first issue, we
conclude that there was competent evidence to support the Industrial Commission’s
findings of fact, and the Industrial Commission’s conclusions of law were
supported by its findings of fact and based upon a correct understanding of the
law; therefore the Industrial Commission did not err in declining to change its
prior award to declare plaintiff permanently disabled as a result of a
compensable injury. As to the second
issue, we conclude defendants did not have reasonable grounds for requesting a
hearing to determine whether plaintiff was permanently disabled; therefore the
Industrial Commission did not err in awarding attorney’s fees pursuant to N.C.
Gen. Stat. §97-88.1. Accordingly, for
the reasons that follow, we affirm.
I. Factual and
Procedural Background
Billy
Meares (“plaintiff”) was employed by the Dana Corporation (“defendant-employer”)
for twenty-nine years, from 1972 to 2001.
On 26 October 1999, plaintiff suffered an injury to his right knee while
moving some boxes at work. On or about 2
October 2001, plaintiff filed Form 18, seeking workers’ compensation benefits on
account of the knee injury.
In an
Opinion and Award issued on 13 July 2004 (“Meares I”), the
Industrial Commission found that plaintiff “suffered a compensable injury to
his right knee” and “plaintiff’s right leg problems aggravated or exacerbated
plaintiff’s left knee arthritis to the extent that it became symptomatic and is
in need of treatment.” The Commission
also found that “[p]laintiff ha[d] not reached maximum medical improvement and
[was] in need of further treatment to both legs.” Accordingly, the Commission concluded that
plaintiff was entitled to continuing temporary total disability benefits and
medical treatment for both legs. In the Meares
I award, the Commission further concluded, inter alia, that
defendants were “entitled to a credit for amounts paid to plaintiff as a
severance package for the period 18 June 2001 through 31 December 2001.”
Plaintiff
appealed the Commission’s award in Meares I to this Court, case No.
COA04-1196, solely on the issue of defendants’ credit for the severance package. Meares v. Dana Corp./WIX Div., 172
N.C. App. 291, 293, 615 S.E.2d 912, 915 (2005).
The record on appeal in Meares I was filed on 8 September
2004. This Court heard Meares I
on 24 March 2005, reversing and remanding in a published opinion filed 2 August
2005 on the grounds that the severance package paid to plaintiff was not
compensation for his injury and thus defendant-employer was not entitled to a
credit for it. Meares, 172 N.C. App. at 300, 615 S.E.2d at 919.
While
the appeal in Meares I was pending, defendants filed Form 33 with the
Industrial Commission on 15 September 2004 (“Meares II”), which gives
rise to the instant appeal, requesting a hearing on the basis that “the
Plaintiff is unwilling to stipulate that he [is] permanently and totally
disabled as defined by North Carolina General Statute §97-29.” A hearing on Meares II was held before
Deputy Commissioner Ronnie E. Rowell on 24 October 2005. In an Opinion and Award filed 30 August 2006,
Deputy Commissioner Rowell found that plaintiff had not reached maximum medical
improvement (“MMI”) for all injury-related conditions and concluded on that
basis plaintiff was not permanently disabled. Deputy Commissioner Rowell
ordered defendants to continue paying plaintiff disability compensation until
further order of the Commission and awarded fees to plaintiff’s attorney
pursuant to N.C. Gen. Stat. §97-88.1.
Defendants
appealed to the Full Commission. The
Commission admitted the 16 December 2005 deposition of Dixon Gerber, M.D. as
additional evidence and heard defendants’ appeal on 14 June 2007. The
Commission found as fact that plaintiff “was not at maximum medical improvement
for all of his injury-related impairments, specifically the left knee.” Accordingly, the Commission concluded that “defendant’s
[sic] request for the Commission to declare the plaintiff to be permanently
disabled is premature.” The Commission
also concluded that because nothing had changed in regard to plaintiff’s
condition “the present hearing was unnecessary[.]”[Note 1] The Commission
ordered defendants to continue to pay temporary total disability and medical
compensation to plaintiff. The
Commission also taxed five thousand dollars ($5,000.00) as costs against
defendants for reasonable attorney’s fees pursuant to N.C. Gen. Stat. §97-88. The Comm7ission further found that “defendant
did not have reasonable grounds for prosecuting this claim[,]” and taxed an
additional ten thousand dollars ($10,000.00) as costs against defendants for
reasonable attorney’s fees pursuant to N.C. Gen. Stat. §97-88.1. Defendants appeal.
II. Disability
Benefits
A. Standard of Review
Appellate
review of an award of the Industrial Commission is generally limited to a
determination of “(1) whether the findings of fact are supported by competent
evidence, and (2) whether the conclusions of law are justified by the findings
of fact.” Gore v. Myrtle/Mueller,
362 N.C. 27, 40, 653 S.E.2d 400, 409 (2007) (citation omitted). “The Commission is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony.”
The
Commission’s legal conclusions are reviewed de novo. Id. “[W]here there are sufficient
findings of fact based on competent evidence to support the [Commission’s]
conclusions of law, the [award] will not be disturbed because of other
erroneous findings which do not affect the conclusions.” Estate of Gainey v. Southern Flooring and
Acoustical Co., 184 N.C. App. 497, 503, 646 S.E.2d 604, 608 (2007) (citation
and quotation marks omitted). However, “[i]f
the conclusions of the Commission are based upon a deficiency of evidence or
misapprehension of the law, the case should be remanded . . . .”
B. Analysis
Defendants
contend that the evidence that plaintiff has been permanently and
totally disabled since his right knee replacement surgery in 2001 is plenary,
therefore the Commission erred in concluding plaintiff was temporarily
totally disabled. Defendants, citing Knight
v. Wal-Mart Stores, Inc, 149 N.C. App. 1, 562 S.E.2d 434 (2002), aff’d
per curiam, 357 N.C. 44, 577 S.E.2d 620 (2003), argue plaintiff sought
benefits under section 97-29, not section 97-31, therefore whether or not
plaintiff has reached maximum medical improvement for all injury-related
conditions is irrelevant. Defendants
reason from this premise that the Commission found the facts under a
misapprehension of law, and therefore, the case must be remanded.
As a
threshold matter, we must determine if the facts before the Commission
supported the reexamination and alteration of its prior award. The reopening of a workers’ compensation case
subsequent to a prior award by the Industrial Commission is governed by N.C.
Gen. Stat. §97-47, which states in pertinent part:
Upon
its own motion or upon the application of any party in interest on the grounds
of a change in condition, the Industrial Commission may review any
award, and on such review may make an award ending, diminishing, or increasing
the compensation previously awarded, subject to the maximum or minimum provided
in this Article . . . .
N.C. Gen. Stat. §97-47
(2005) (emphasis added); Shingleton, 148 N.C. App. at 674, 559 S.E.2d at
282 (concluding that no change in condition had occurred when the plaintiff
presented no medical evidence of a change in circumstances and the “plaintiff’s
testimony about her physical restrictions [was] virtually identical to that of
the [earlier] hearing”). “In all
instances the burden is on the party seeking the modification to prove the
existence of the new condition and that it is causally related to the injury
that is the basis of the award the party seeks to modify.” Blair v. American Television &
Communications Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996).
In
applying N.C. Gen. Stat. §97-47, the North Carolina Supreme Court has stated:
Change of condition refers to conditions
different from those existent when the award was made; and a continued
incapacity of the same kind and character and for the same injury is not a
change of condition. [T]he change must
be actual, and not a mere change of opinion with respect to a pre-existing
condition. Change of condition is a
substantial change, after a final award of compensation, of physical capacity
to earn and, in some cases, of earnings.
McLean v. Roadway
Express, 307 N.C. 99,
103-04, 296 S.E.2d 456, 459 (1982) (citations, quotation marks and ellipses
omitted) (an increase in the plaintiff’s disability rating following surgery is
a change in condition within the meaning of N.C. Gen. Stat. §97-47). Stated negatively, “[c]hanges of condition
occurring during the healing period and prior to the time of maximum recovery
and the permanent disability, if any, found to exist at the end of the period
of healing are not changes of condition within the meaning of G.S. 97-47.” Pratt v. Central Upholstery Co., 252
N.C. 716, 722, 115 S.E.2d 27, 34 (1960).
Furthermore, this Court has held that “a mere change of the doctor’s opinion
with respect to claimant’s preexisting condition does not constitute a change
of condition required by G.S. 97-47.” Allen
v. Roberts Elec. Contr’rs., 143 N.C. App. 55, 62, 546 S.E.2d 133, 138
(2001) (citation, quotation marks and brackets omitted).
We
first note that defendants’ Form 33, which requested reconsideration by the
Commission, did not allege any change of plaintiff’s medical condition. Defendants’ Form 33 requested a hearing
solely on the grounds that “the Plaintiff is unwilling to stipulate that he
[is] permanently and totally disabled as defined by North Carolina General
Statute §97-29.”[Note 2] Nevertheless, at the hearing before the
Commission, defendants offered into evidence a deposition taken on 16 December
2005 from Dr. Dixon Gerber, plaintiff’s treating physician, which they contend
is “new evidence.”
Defendants
argue that the testimony of Dr. Gerber supports their assertion that conditions
had changed since the Commission’s 13 June 2004 Opinion and Award in Meares
I. Specifically, they cite Dr.
Gerber’s testimony that “I do not see him returning to that job ever, whether
he has . . . the left knee done or not[,]” and Dr. Gerber’s agreement with the
statement that “[e]ven if [plaintiff] has the additional [left] knee
replacement, it’s really not going to change his status of being disabled as
far as returning to work[.]”
However,
in finding plaintiff has yet to reach maximum medical improvement for all
injury-related conditions, the Commission also cited Dr. Gerber’s 16 December 2005
deposition testimony. The Commission
specifically found that “Dr. Gerber was of the opinion, and the Full Commission
finds as fact, that the plaintiff was not at maximum medical improvement for
all of his injury-related impairments, specifically the left knee.” This finding is supported by Dr. Gerber’s
testimony, which stated that plaintiff “has the same degenerative
arthritic condition in his left knee that he had in his right knee prior to his
[compensable] injury[,]” and that “you can’t say he’s at maximum medical
improvement for his left knee because he still has an arthritic knee.” (Emphasis added.) The Commission’s findings in turn support its
conclusion of law: “There is no evidence
suggesting that the plaintiff has ever reached maximum medical improvement for
all of his injury-related conditions, and in particular his left knee. Since nothing has changed in this regard
since the Full Commission’s Opinion and Award on July 13, 2004, the present
hearing was unnecessary . . . .”
Defendants
also argue that the fact that plaintiff has reached MMI in his right knee is a
substantial change which merits review and alteration of the Meares I
Opinion and Award. The Commission’s
finding that “plaintiff ha[d] reached maximum medical improvement with respect
to his right knee injury” is uncontroverted.
However, merely reaching MMI with respect to plaintiff’s right knee is
not a substantial change which can sustain alteration of Meares I, (1)
because the incapacity is “of the same kind and character” as the incapacity
for which plaintiff was previously awarded benefits, (2) because there has been
no change in plaintiff’s “physical capacity to earn,” McLean, 307 N.C.
at 103-04, 296 S.E.2d at 459, and (3) because it occurred “during the healing
period and prior to the time of maximum recovery[,]” Pratt, 252 N.C. at 722, 115 S.E.2d at
34. In sum, defendants have offered no
evidence of any change in plaintiff’s condition which would support a reopening
of the case. We conclude therefore that the Commission correctly determined
that defendants had not met their burden of “prov[ing] the existence of the new
condition,” Blair, 124 N.C. App. at 423, 477 S.E.2d at 192, and
accordingly denied defendants’ request to change its previous award.
III. Attorney’s Fees
Pursuant to N.C. Gen. Stat. §97-88.1
Defendants
contend they had reasonable grounds for requesting a hearing regarding the
permanence of plaintiff’s disability, therefore the Commission’s award of
attorney fees under N.C. Gen. Stat. §97-88.1 was an abuse of discretion. We disagree.
N.C.
Gen. Stat. §97-88.1 states:
If the
Industrial Commission shall determine that any hearing has been brought,
prosecuted, or defended without reasonable ground, it may assess the whole cost
of the proceedings including reasonable fees for defendant’s attorney or
plaintiff’s attorney upon the party who has brought or defended them.
N.C. Gen. Stat. §97-88.1
(2005).
The
Commission concluded defendants did not have reasonable grounds for prosecuting
the claim sub judice after finding:
17. . . . Since nothing has changed in []
regard [to maximum medical improvement for all of plaintiff’s injury
conditions] since the Full Commission’s Opinion and Award on July 13, 2004, the
present hearing was unnecessary and did not involve an issue that was ripe for
adjudication.
Review
of an award of attorney’s fees pursuant to N.C. Gen. Stat. §97-88.1 is requires
a two-part analysis. First, “[w]hether
the [party] had a reasonable ground to bring a hearing is reviewable by this
Court de novo.” Troutman v.
White & Simpson, Inc., 121 N.C. App. 48, 50-51, 464 S.E.2d 481, 484
(1995), disc. review denied, 343 N.C. 516, 472 S.E.2d 26 (1996). For a reviewing court to determine whether a
defendant had reasonable ground to bring a hearing, it must consider the
evidence introduced at the hearing. Ruggery
v. N.C. Dep’t of Correction, 135 N.C. App. 270, 274, 520 S.E.2d 77, 80
(1999). The determination of reasonable
grounds is not whether the party prevails in its claim, but whether the claim “is
based on reason rather than stubborn, unfounded litigiousness.” Ruggery, 135 N.C. App. at 274, 520
S.E.2d at 80 (citation and quotation marks omitted).
If
this Court concludes that the party requesting the hearing lacked reasonable
grounds, “[t]he decision of whether to make such an award, and the amount of
the award, is in the discretion of the Commission, and its award or denial of
an award will not be disturbed absent an abuse of discretion.” Troutman, 121 N.C. App. at 54-55, 464
S.E.2d at 486. “An abuse of discretion
results only where a decision is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned decision.” Bryson v. Phil Cline Trucking, 150
N.C. App. 653, 656, 564 S.E.2d 585, 587 (2002) (citation and quotation marks
omitted) (affirming the Industrial Commission’s award of attorney’s fees as a
punitive sanction for unfounded litigiousness).
On the other hand, if the party requesting the hearing had reasonable
grounds to request the hearing, any award of attorney’s fees pursuant to N.C.
Gen. Stat. §97-88.1 will be reversed by this Court. Cooke v. P.H. Glatfelter/Ecusta, 130
N.C. App. 220, 225-26, 502 S.E.2d 419, 423 (1998).
We
concluded supra that defendants did not introduce any evidence which
would prove the existence of a change in condition and thereby sustain its
request for alteration of Meares I. Therefore, we also conclude that
defendants lacked reasonable grounds to litigate the permanence of plaintiff’s
disability. Because defendants lacked reasonable grounds to litigate this case,
the Commission’s decision to tax attorney’s fees as costs against defendants “will
not be disturbed absent an abuse of discretion.” Troutman, 121 N.C. App.
at 55, 464 S.E.2d at 486.
The
Commission found as fact:
18. . . . One apparent reason why the
defendant would ask the Commission to declare the plaintiff to be permanently
and totally disabled is to expedite the running of the limitations period in
N.C. Gen. Stat. §97-38[Note 3] with
a ‘final determination’ of the plaintiff’s disability in order to deprive the
plaintiff’s dependents of compensation under that statute[.]”
(Footnote added.)
Dr.
Gerber testified that plaintiff had developed complications from his right knee
replacement surgery, including deep venous thrombosis and a pulmonary embolus
and was at risk for developing the same conditions if he had replacement
surgery on his left knee. Dr. Gerber
also testified that a pulmonary embolus is a “potentially life threatening
complication of surgery.” Thus, the evidence
before the Commission indicated that if plaintiff were to have replacement
surgery on his left knee and he again developed serious complications, it would
be foreseeable that plaintiff might die as a proximate result of his
compensable injury. Therefore, we
conclude the Commission’s inference as to defendants’ motives in asking the
Commission to declare plaintiff permanently disabled was based on reason. In
fact, it is somewhat unusual for the defendants in a workers’
compensation case to request that an employee be declared permanently and
totally disabled – normally the defendants oppose such a determination. Accordingly, we conclude that the Commission
did not abuse its discretion when it taxed attorney’s fees against defendants
as costs pursuant to N.C. Gen. Stat. §97-88.1.
IV. Conclusion
Because
defendants submitted no evidence of a change in plaintiff’s condition, we
conclude the Commission did not err when it did not alter its previous award of
benefits to plaintiff to declare him permanently disabled. We also conclude that the Commission did not
abuse its discretion in awarding plaintiff’s attorney fees pursuant to N.C.
Gen. Stat. §97-88.1, because defendants did not have reasonable grounds for
requesting the hearing on the permanency of plaintiff’s disability and because
the Commission’s inference as to defendants’ motive for requesting a hearing
was based on reason. Accordingly, the
award of the Industrial Commission is affirmed.
Affirmed.
Judges
HUNTER and ELMORE concur.
NOTES
1. This
conclusion is labeled as finding of fact number 17. Nevertheless, whether or
not there has been a change in condition is a conclusion of law. Shingleton
v. Kobacker Grp., 148 N.C. App. 667, 670, 559 S.E.2d 277, 280
(2002).
2. Defendants
have not cited any statute or case that would require any party to a workers’
compensation case to stipulate to any fact or legal conclusion, and we
are unaware of any such rule.
Stipulations are by definition voluntary and not mandatory. See Black’s Law Dictionary 1455 (8th ed.
2004) (defining stipulation as “[a] voluntary agreement between opposing
parties concerning some relevant point[.]”).
3. N.C.
Gen. Stat. §97-38 states in pertinent part:
If death results proximately from a
compensable injury or occupational disease and within six years thereafter, or
within two years of the final determination of disability, whichever is later,
the employer shall pay or cause to be paid, subject to the provisions of other
sections of this Article, weekly payments of compensation equal to sixty-six
and two-thirds percent (66 2/3%) of the average weekly wages of the deceased
employee at the time of the accident[.]
N.C.
Gen. Stat. §97-38 (2005).