Kisiah v. W. R. Kisiah Plumbing, 124 NC App 73 (95-878) 10/15/1996 Link to original WordPerfect file

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Kisiah v. W.R. Kisiah Plumbing

No. COA95-878

(Filed 15 October 1996)

1.    Workers' Compensation § 420 (NCI4th)-- disability compensation -- defendant's unilateral modification

    The issue of plaintiff's disability compensation was remanded to the Industrial Commission for rehearing where plaintiff was injured at a work site; a Form 21 Agreement was entered into by plaintiff and defendant and approved by the Industrial Commission; plaintiff received temporary total disability payments and undertook treatment; he returned to work on 6 January 1993 on a part-time basis in a different capacity earning less; defendant discontinued payment of disability compensation beginning 6 January 1993, despite having received no approval to do so by the Commission; plaintiff was fired because he refused to discuss a pending lawsuit related to the injury; defendant unilaterally mailed plaintiff a check in April which ostensibly represented an amount the employer-defendant deemed proper as payment for temporary partial disability; after the lump sum payment, defendant began paying plaintiff a sum it decided was appropriate as temporary partial disability; and the full Commission concluded that plaintiff failed to establish that he continued after 6 January to suffer a loss of wage earning capacity, that plaintiff had the burden of proving disability and its extent, that plaintiff was not entitled to benefits, and that defendant was entitled to a credit for all temporary partial disability paid after 6 January 1993. A Form 21 agreement has long been regarded as constituting an award by the Commission and a presumption of disability exists to the benefit of the employee whenever a disability award is made by the Commission. Challenges to an award must thereafter be made pursuant to the processes mandated by the Act.

     Am Jur 2d, Workers' Compensation § 431.

     Tort liability of worker's compensation insurer for wrongful delay or refusal to make payments when due. 8 ALR4th 902.

2.    Workers' Compensation § 290 (NCI4th)-- disability -- employer's unilateral modification of benefits -- credits for payments

    It was improper for the Industrial Commission to conclude that credit should be given to defendant for disability payments made to plaintiff after defendant unilaterally and therefore improperly determined that plaintiff's return to work modified a Form 21 agreement. Credits should be given only if they were not due and payable when made and plaintiff was presumptively due payments pursuant to the Form 21 agreement until a contrary determination was made be the Commission.

     Am Jur 2d, Workers' Compensation §§ 416, 545.

     Tort liability of worker's compensation insurer for wrongful delay or refusal to make payments when due. 8 ALR4th 902.

3.    Workers' Compensation § 301 (NCI4th)-- disability -- unilateral modification -- penalty

    The Industrial Commission erred by determining that no basis existed upon which to assess a penalty against defendant where defendant voluntarily ceased making disability payments without the permission of the Commission, then decided to resume payments at a level it deemed proper. This is the exact behavior N.C.G.S. § 97-18 was enacted to prevent.

     Am Jur 2d, Workers' Compensation §§ 226, 480, 684.

     Tort liability of worker's compensation insurer for wrongful delay or refusal to make payments when due. 8 ALR4th 902.

NO. COA95-878

NORTH CAROLINA COURT OF APPEALS

Filed: 15 October 1996

JOSEPH M. KISIAH,

    Employee, Plaintiff;

     v.

W.R. KISIAH PLUMBING, INCORPORATED,

    Employer;

SELF-INSURED, (Consolidated Administrators),

    Carrier, Defendant.

    Appeal by plaintiff from opinion and award entered 29 April 1995 by the Full Commission. Heard in the Court of Appeals 27 March 1996.

    Waggoner, Hamrick, Hasty, Monteith and Kratt, P.L.L.C., by S.     Dean Hamrick, for plaintiff appellant.