Appeal by defendants from opinion and award entered 16 August
2000 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 8 November 2001.
Walden & Walden, by Daniel S. Walden, for plaintiff-appellee.
Morris York Williams Surles & Barringer, LLP, by G. Lee
Martin, for defendant-appellants.
McGEE, Judge.
Defendants appeal from the award of workers' compensation
benefits to plaintiff William Keith Burchette. Plaintiff sustained
an injury arising in and out of his employment with defendant East
Coast Millwork Distributors, Incorporated., on 11 May 1994. A
pallet of glass fell on the foot of another employee, and plaintiff
lifted the pallet high enough for the employee to free himself. In
doing so, plaintiff sustained a low back injury. Defendants
accepted the claim as compensable pursuant to a Form 21 agreement
dated 21 June 1994 and approved by the Industrial Commission 6
April 1995.
Plaintiff initially received treatment at Jonesville FamilyMedical Center and was diagnosed with acute low back pain. From 17
May 1994 until 18 July 1995, plaintiff attempted to return to work
with defendant at least five times at various light duty jobs
created for or modified for plaintiff. Each of these attempts was
unsuccessful. During this period plaintiff also received various
medical care procedures, including steroid injections and physical
therapy.
Plaintiff began treatment with Dr. Louis Pikula (Dr. Pikula)
on 17 January 1996. Dr. Pikula recommended a back therapy program
and plaintiff went to The Rehab Center in Charlotte on 18 March
1996. Plaintiff was discharged from the program on 17 April 1996.
Dr. Pikula released plaintiff to return to work pursuant to
guidelines established at the rehabilitation program, which were
not to lift over twenty pounds and to alternate sitting, standing,
and walking. He was also to avoid sustained bending and twisting.
Plaintiff made a sixth attempt to return to work on 25 April 1996.
The next day plaintiff called his employer and said he would be
unable to work due to severe back pain. Knowing the return to work
was unsuccessful, defendants nonetheless filed a Form 28T to
terminate benefits with the Industrial Commission on 30 April 1996.
Plaintiff made a subsequent seventh attempt to return to work
on 2 May 1996 but was unable to continue working on 13 May 1996,
again due to severe lower back pain and leg pain. Dr. Pikula
informed plaintiff there was nothing more he could do for
plaintiff; therefore, plaintiff began to see his family physician,
Dr. Christopher Campbell (Dr. Campbell). Plaintiff attempted an eighth trial return to work on 17
December 1996; however, plaintiff was unable to continue working on
19 December 1996. Defendants submitted a Form 33, dated 11
November 1997, requesting a hearing with the Industrial Commission
which sought a determination of plaintiff's disability. Plaintiff
filed a Form 33R Response on 7 July 1998 contending plaintiff was
entitled to continuing total disability payments. This case was
heard before a deputy commissioner on 30 September 1998, and the
deputy commissioner entered an opinion and award in plaintiff's
favor on 1 March 1999. Defendants appealed to the Full Industrial
Commission. In an opinion and award filed 16 August 2000, the
Industrial Commission affirmed the deputy commissioner's opinion
and award. Defendants appeal to this Court.
I.
Defendants first argue the Industrial Commission erred in
awarding temporary total disability benefits to plaintiff after
specifically finding that plaintiff had reached maximum medical
improvement. However, defendants do not cite any case law or
authority which supports this proposition. We rely on our Court's
decision in
Russos v. Wheaton Indus., 145 N.C. App. 164, 551 S.E.2d
456 (2001),
disc. review denied, ___ N.C. ___, 560 S.E.2d 135
(2002), which held it is not error as a matter of law to award
temporary total disability payments after an employee has reached
maximum medical improvement. Once "'a Form 21 agreement is entered
into by the parties and approved by the Commission, a presumption
of disability attaches in favor of the employee.'"
Russos, 145N.C. App. at 167, 551 S.E.2d at 458. (quoting
Saums v. Raleigh
Community Hosp., 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997));
see also Knight v. Wal-Mart Stores, Inc., ___ N.C. App. ___, ___
S.E.2d ___ (2002). A finding of maximum medical improvement is
insufficient to overcome this presumption.
A finding of maximum medical improvement
is not the equivalent of a finding that the
employee is able to earn the same wage earned
prior to injury and does not satisfy the
defendant's burden. . . .
After a finding of maximum medical
improvement, the burden remains with the
employer to produce sufficient evidence to
rebut the continuing presumption of
disability; the burden does not shift to the
employee.
Brown v. S & N Communications, Inc. 124 N.C. App. 320, 330-31, 477
S.E.2d 197, 203 (1996). In the case before us, a Form 21 agreement
was approved on 6 April 1995, and plaintiff was awarded total
disability benefits under N.C. Gen. Stat. § 97-29. Even though
there was a finding of maximum medical improvement, at this point
plaintiff is still entitled to a continuing presumption of
disability, which defendants have yet to overcome. We overrule
this assignment of error.
II.
Defendants next argue the Industrial Commission erred in
placing the burden of proof on defendants to show that plaintiff
was capable of returning to employment. Defendants contend that
they rebutted plaintiff's presumption of continuing disability both
by presenting evidence of a finding of maximum medical improvement
and also by offering suitable employment to plaintiff. Asdiscussed above, defendants are unable to rebut this presumption of
continuing disability with a finding of maximum medical
improvement. In order to rebut the ongoing presumption of
disability by offering suitable employment, an employer must
present evidence that (1) "suitable jobs are available for the
employee;" (2) "that the employee is capable of getting said job
taking into account the employee's physical . . . limitations;" and
(3) "that the job would enable the employee to earn some wages."
Brown, 124 N.C. App. at 330, 477 S.E.2d at 202-03.
However, the Industrial Commission found the jobs presented to
plaintiff were not suitable given plaintiff's restrictions.
47. In the period since 16 May 1994
plaintiff has made at least eight different
good faith, trial return to work efforts at
very light duty jobs made available to him by
defendant-employer. In each instance the job
was not suitable to plaintiff's capacities and
his effort was unsuccessful due to increased
lower back pain and increased right leg pain
and weakness from the prolonged sitting or
standing required by the job. These light
duty jobs were also modified to fit
plaintiff's restrictions as to not be
available in the competitive job market.
Plaintiff is unable to sit, stand or walk for
longer than about 3 hours at a time on a
sustained work basis of 5 days a week. He
requires frequent periods of complete
recumbency to help keep his pain level from
becoming severe.
48. The various employment opportunities
offered to plaintiff by defendant-employer in
the period after his 11 May 1994 back injury
were not suitable to plaintiff's capacities
and plaintiff's refusal to accept or continue
performing any of these positions was
justified.
Defendants essentially contest these findings of facts by theirassignment of error. "The facts found by the Commission are
conclusive upon appeal to this Court when they are supported by
competent evidence, even when there is evidence to support contrary
findings."
Pittman v. International Paper Co., 132 N.C. App. 151,
156, 510 S.E.2d 705, 709,
aff'd, 351 N.C. 42, 519 S.E.2d 524
(1999). Furthermore, the "'findings of fact by the Industrial
Commission are conclusive on appeal if supported by any competent
evidence.'"
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,
414 (1998) (quoting
Gallimore v. Marilyn's Shoes, 292 N.C. 399,
402, 233 S.E.2d 529, 531 (1977)).
In the case before us, there is competent evidence to support
the Industrial Commission's findings of fact. After a careful
review of the record, we find there is evidence that plaintiff made
at least eight different attempts to return to work. Each time
plaintiff was unable to continue to work at the job because of a
combination of the requirements of the job and his physical
limitations of no heavy lifting and an inability to sit or stand
for long periods of time. We overrule this assignment of error.
III.
Defendants next argue the Industrial Commission erred in
assessing a ten percent penalty on all compensation that was past
due pursuant to N.C. Gen. Stat. § 97-18(g). Defendants contend
they followed the appropriate rules set out by the Industrial
Commission and filed all the required forms.
N.C. Gen. Stat. § 97-18.1 (1999) states
(a) Payments of compensation pursuant to an
award of the Commission shall continue untilthe terms of the award have been fully
satisfied.
(b) An employer may terminate payment of
compensation for total disability being paid
pursuant to G.S. 97-29 when the employee has
returned to work for the same or a different
employer, subject to the provisions of G.S.
97-32.1[.] . . . The employer shall promptly
notify the Commission and the employee, on a
form prescribed by the Commission, of the
termination of compensation and the
availability of trial return to work and
additional compensation due the employee for
any partial disability.
In the case before us, defendants filed an appropriate Form 28T in
response to plaintiff's returning to work on 26 April 1996.
However, defendants were aware this trial return to work was
unsuccessful. Furthermore, when plaintiff made a subsequent trial
return to work on 2 May 1996, defendants failed to file a
subsequent and separate Form 28T in response to this subsequent
return to work. Defendants contend the employee's failure to file
a Form 28U following the defendants' filing of a Form 28T relieves
the employer of any responsibility to resume payment of disability
compensation. We disagree, as defendants' argument fails both
based on the face of the General Statutes and the Workers'
Compensation Rules of the North Carolina Industrial Commission (IC
Rules).
N.C.G.S. § 97-18.1(b) creates an exception to the general rule
found in N.C.G.S. § 97-18.1(c) requiring a hearing by the
Industrial Commission in order to terminate benefits. N.C.G.S. §
97-18.1(b), in conjunction with N.C.G.S. § 97-32.1, encourages an
employee to return to work by allowing the employee to attempt a
trial return to work. Under N.C.G.S. § 97-18.1(b), an employer mayterminate benefits when the employee has returned to work, if the
employer immediately provides notice to the employee and the
Industrial Commission of the termination of compensation and the
availability of a trial return to work. The employer provides this
notice by filing a Form 28T.
See IC Rule 404A(1) (2000). However,
if the trial return to work is unsuccessful, "the employee's right
to continuing compensation under G.S. 97-29 shall be unimpaired
unless terminated or suspended thereafter pursuant to the
provisions of this Article." N.C. Gen. Stat. § 97-32.1 (1999).
There is no language in the General Statutes or in the IC
Rules which mandates that the employee file a form with the
Industrial Commission, Form 28U or otherwise, in order to have the
employee's benefits reinstated. IC Rule 404A(2) previously stated
the employee "shall" file a Form 28U. However, Rule 404A(2) was
amended in 2000 to state that if "during the trial return to work
period, the employee must stop working due to the injury for which
compensation had been paid, the employee should complete and file
with the Industrial Commission, a Form 28U." IC Rule 404A(2)
(2000). This amendment was retroactive to 1995.
See IC Rule
404A(8) (2000). The revised IC Rule 404A(2) is now not in conflict
with N.C.G.S. § 97-32.1, which has always maintained that an
employee's benefits, following an unsuccessful trial return to
work, cannot be "unimpaired unless terminated or suspended
thereafter pursuant to the provisions of this Article." Instead,
after a failed trial return to work, N.C.G.S. § 97-32.1 directs
the employer that the compensation shall not be terminated withoutfollowing the provisions of the General Statutes. This language
directs the employer back to N.C.G.S. § 97-18.1(c), which sets
forth the procedures for all termination requests other than the
exceptions listed in N.C.G.S. § 97-18(b).
Therefore, in the case before us, once defendants had
knowledge that plaintiff's trial return to work was unsuccessful,
they were required to reinstate compensation pursuant to the Form
21 approved 6 April 1995. At the time the trial return to work was
unsuccessful, the defendants did not qualify for the exception
listed in N.C.G.S. § 97-18.1(b). Defendants' remedy at that
point, if they felt plaintiff's refusal to work was unjustified,
was to file a Form 24 pursuant to N.C.G.S. § 97-18.1(c). As a
result of defendants' failure to follow these procedures,
defendants are subject to the ten percent penalty pursuant to
N.C.G.S. § 97-18(g).
Furthermore, when plaintiff returned to work on 2 May 1996,
defendants were again required by IC Rule 404A(1), in compliance
with N.C.G.S. § 97-18.1(b), to file a subsequent Form 28T following
plaintiff's subsequent return to work. A primary purpose of a Form
28T, "Notice of Termination of Compensation," is to give notice to
the Industrial Commission of the termination; but more importantly,
it is a notice to the employee of that employee's current status
and rights available to that employee. In the case before us,
following the 2 May 1996 trial return to work, defendants never
filed a Form 28T; therefore, plaintiff did not receive the
employer's notice of plaintiff's benefits status or any directionas to what plaintiff should do if the trial return to work proved
unsuccessful. As a result of defendants' failure to follow both
the General Statutes and the IC Rules, we hold defendants are
subject to the ten percent penalty imposed by the Industrial
Commission. We overrule this assignment of error.
IV.
Defendants next argue the Industrial Commission erred in
striking the testimony of Dr. Pikula and in designating Dr.
Campbell as plaintiff's treating physician. Defendants contend
there is no competent evidence to support the Industrial
Commission's findings of fact relating to these issues.
The Industrial Commission found that Dr. Pikula and Nurse
Wyatt, plaintiff's rehabilitation specialist who was hired by
defendants, had
ex parte communications concerning plaintiff's
case. There is competent evidence in the record to support this
finding of fact. Correspondence between Dr. Pikula and Nurse Wyatt
summarizing plaintiff's visits with Dr. Pikula indicated there were
telephone conversations between Dr. Pikula and Nurse Wyatt in which
the two "discussed the case." Furthermore, Dr. Pikula received a
note which contradicted what plaintiff had told him about the
amount of time plaintiff took for a break. While a conversation
outside the plaintiff's presence, standing alone, does not require
disregarding that physician's opinion, the weight given to his
testimony is for the Industrial Commission to decide. "As long as
there [is] any competent evidence to support the possibility of
undue influence upon [the treating physician], the Commission'sfindings on this basis are conclusive on appeal."
Jenkins v.
Public Service Co. of N.C., 134 N.C. App. 405, 417, 518 S.E.2d 6,
13 (1999) (Wynn, J. dissenting). Upon review, our Supreme Court
adopted Judge Wynn's dissent.
Jenkins v. Public Service Co. of
N.C., 351 N.C. 341, 524 S.E.2d 805 (2000).
The approval or disapproval of a treating physician is "within
the discretion of the [Industrial] Commission and the [Industrial]
Commission's determination may only be reversed upon a finding of
manifest abuse of discretion."
Franklin v. Broyhill Furniture
Industries, 123 N.C. App. 200, 207, 472 S.E.2d 382, 387,
cert.
denied, 344 N.C. 629, 477 S.E.2d 39 (1996)(citation omitted). The
evidence in the record supports the Industrial Commission's
decision, and defendants have presented no argument amounting to
abuse of discretion. We overrule this assignment of error.
V.
Defendants next argue the Industrial Commission erred in not
rendering an opinion within 180 days after the close of the record,
pursuant to N.C. Gen. Stat. § 97-84 (1999). However, defendants
have failed to show how this delay prejudiced them in any manner.
We dismiss this assignment of error.
We affirm the opinion and award of the Industrial Commission.
Affirmed.
Judges HUNTER and BRYANT concur.
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