Appeal by defendants from opinion and award of the North
Carolina Industrial Commission filed 13 September 2000. Heard in
the Court of Appeals 17 October 2001.
Mark T. Sumwalt, Vernon Sumwalt, and Stefan R. Latorre, for
plaintiff-appellee.
Morris York Williams Surles & Barringer, LLP, by G. Lee Martin
and Keith B. Nichols, for defendant-appellants.
McGEE, Judge.
Defendants appeal from the award of workers' compensation
benefits to plaintiff Francisco Ruiz. Plaintiff sustained an
injury while employed as a construction worker for defendant Belk
Masonry Company, Inc. on 7 October 1997. Plaintiff fell
approximately seventy feet from a forklift onto a concrete floor
and sustained a traumatic brain injury, a kidney contusion, and
several fractures. He was transported to Carolinas Medical Center
and was hospitalized until 7 November 1997. Plaintiff was then
transferred to the Charlotte Institute of Rehabilitation where he
received physical, occupational, and speech therapy, along withpsychological counseling. Plaintiff was placed in an outpatient
program under the care of his brother, Jose Ruiz, on 3 December
1997, and continued to participate in follow-up treatment with his
treating physician, Dr. James T. McDeavitt. Dr. McDeavitt
testified plaintiff reached maximum medical improvement on 9
February 1998. Dr. McDeavitt also testified plaintiff did not
require twenty-four hour attendant care, and that with a vocational
rehabilitation plan, plaintiff might be able to return to work.
Plaintiff presented the testimony of a vocational
rehabilitation expert and a certified life care planner. The life
care planner testified that plaintiff needed twenty-four hour care.
Patrick Clifford (Mr. Clifford), a vocational rehabilitation
expert, testified that plaintiff could not even perform sedentary
work, had limited ability to walk or drive, and had limited
cognitive abilities.
Plaintiff was an illegal or undocumented alien at the time of
his hiring and at the time of the accident. Plaintiff presented a
false social security card and I-9 form to defendant-employer when
he was employed.
I.
Defendants first argue the Commission erred in awarding
workers' compensation benefits to plaintiff because plaintiff was
an illegal alien. We disagree.
Defendants argue the statutory construction of N.C. Gen. Stat.
§ 97-2(2) does not allow for illegal aliens to be classified as
"employees." Defendants further argue plaintiff does not have anearning capacity. However, N.C. Gen. Stat. § 97-2(2) (1999)
defines "employee" as "every person engaged in an employment under
any appointment or contract of hire or apprenticeship, express or
implied, oral or written, including aliens, and also minors,
whether lawfully or unlawfully employed[.]" The precise issues
defendants raise were determined by our Court in
Rivera v. Trapp,
135 N.C. App. 296, 519 S.E.2d 777 (1999).
Rivera presents a
similar factual situation to the case before us. In
Rivera, the
plaintiff was employed as a roofer despite his not possessing a
green card or a social security number. The plaintiff was
seriously injured following a three-story fall from a forklift.
Our Court held that N.C.G.S. § 97-2(2)
defines employee to include "every person
engaged in an employment . . . including
aliens." The statute makes clear that the
General Assembly sought to include individuals
like the plaintiff under the protections of
the Workers' Compensation Act. Further,
plaintiff presented sufficient evidence to
show that prior to the injury he did in fact
have earning capacity as a roofer.
Rivera, 135 N.C. App. at 303, 519 S.E.2d at 781.
N.C.G.S. § 97-2(2) does not preclude plaintiff from receiving
workers' compensation benefits based solely on his status as an
illegal alien. "'The philosophy which supports the [Workers']
Compensation Act is that the wear and tear of the workman, as well
as the machinery, shall be charged to the industry.'"
Porterfield
v. RPC Corp., 47 N.C. App. 140, 143-44, 266 S.E.2d 760, 762 (1980)
(quoting
Cates v. Construction Co., 267 N.C. 560, 563, 148 S.E.2d
604, 607 (1966)). "The primary purpose of legislation of this kindis to compel industry to take care of its own wreckage."
Barber v.
Minges, 223 N.C. 213, 216, 25 S.E.2d 837, 839 (1943). These
principles are still relevant today and in the particular situation
before us. We agree with the deputy commissioner's finding in this
case that we "must also be aware that defendant-employer received
the benefits of plaintiff's labor up to the time of his injury, and
it would be repugnant to now deny plaintiff a benefit of the same
agreement."
Furthermore, as
Rivera holds, an illegal alien can, despite
his or her status, demonstrate an earning capacity in this state.
Rivera, 135 N.C. App. at 303, 519 S.E.2d at 781. In the case
before us, plaintiff has shown he had the capacity to earn wages as
a brick mason prior to his accident. Plaintiff was employed by
defendant Belk Masonry Company, Inc. prior to his accident, and he
was receiving wages for his work; plaintiff therefore demonstrated
an earning capacity.
Defendants next contend that if the North Carolina Workers'
Compensation statute is inclusive of illegal aliens and bestows
upon illegal aliens an earning capacity, the statute is in conflict
with federal immigration laws and is therefore preempted by them.
Defendants contend the Federal Immigration Reform Control Act of
1986 (IRCA) preempts illegal aliens from receiving benefits under
the North Carolina Workers' Compensation Act. Because federal law
prohibits illegal aliens from obtaining employment, defendants
contend illegal aliens can never be defined as "employees" under
federal or state labor statutes. Federal law preempts state law in three circumstances:
"
First, where Congress has explicitly provided that state law is
preempted.
Second, in the absence of express language, where
Congress has intended the federal government should exclusively
occupy a particular field. . . .
Third, [s]tate law is preempted
to the extent it actually conflicts with federal law."
Collins v.
CSX Transportation, 114 N.C. App. 14, 18, 441 S.E.2d 150, 152,
disc. review denied, 336 N.C. 603, 447 S.E.2d 388 (1994) (citations
omitted) (emphasis in original).
Defendants have chosen to focus on the third situation and
argue there exists a conflict between IRCA and the North Carolina
Workers' Compensation Act. We disagree. The U.S. House of
Representatives report following the enactment of IRCA expressly
explained that
[i]t is not the intention of the
Committee that the employer sanctions
provisions of the bill be used to undermine or
diminish in any way labor protections in
existing law, or to limit the powers of
federal or state labor relations boards, labor
standards agencies, or labor arbitrators to
remedy unfair practices committed against
undocumented employees for exercising their
rights before such agencies or for engaging in
activities protected by existing law. In
particular, the employer sanctions provisions
are not inten[d]ed to limit in any way the
scope of the term "employee" in Section 2(3)
of the National Labor Relations Act (NLRA), as
amended, or of the rights and protections
stated in Sections 7 and 8 of that Act.
H.R. Rep. No. 99-682(I), at 58 (1986),
reprinted in 1986
U.S.C.C.A.N. 5649, 5662. Other state court jurisdictions have held
IRCA does not preempt or redefine the term "employee" for purposesof workers' compensation. In
Reinforced Earth Co. v. W.C.A.B., 749
A.2d 1036, 1038 (Pa. Commw. 2000), the court held
there is nothing in the IRCA which indicates
that an individual, hired by an employer in
violation of its provisions, is not an
"employee" under federal or state law. As
such, the IRCA does not, in and of itself,
preclude an illegal alien from being
considered an "employee" for purposes of the
Act.
See also Dowling v. Slotnik, 712 A.2d 396 (Conn. 1998),
cert.
denied, 525 U.S. 1017, 142 L. Ed. 2d 451 (1998);
Mendoza v.
Monmouth Recycling Corp., 672 A.2d 221 (N.J. 1996) (holding
claimant's need for medical treatment and right thereto did not
derive from his immigration status but from the service he
performed while working for employer).
Based on congressional intent and following the reasoning of
other state court jurisdictions, we hold that federal law
prohibiting the hiring of illegal aliens does not prevent illegal
aliens from being included in the North Carolina Workers'
Compensation definition of "employee," nor does federal law
prevent illegal aliens, based solely on immigration status, from
receiving workers' compensation benefits. We overrule this
assignment of error.
II.
Defendants next argue the Commission erred in awarding
plaintiff benefits for attendant care. Defendants contend no
competent evidence exists to support the findings of fact that in
turn would support the Commission's conclusion that plaintiff is
entitled to attendant care services at a rate of eight dollars anhour for sixteen hours a day. We disagree.
Whether a plaintiff does or does not receive attendant care
benefits is a conclusion of law which must be supported by findings
of fact. On an appeal from an opinion and award from the
Commission, the standard of review for this Court "is limited to a
determination of (1) whether the Commission's findings of fact are
supported by any competent evidence in the record; and (2) whether
the Commission's findings justify its conclusions of law."
Goff v.
Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d
602, 604 (2000).
Defendants argue the Commission's finding that "[p]laintiff is
in need of attendant care and defendants have not provided it" is
not supported by competent evidence. "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)).
The Commission found the following facts in its opinion and
award:
9. Mr. Jose Ruiz indicated that
plaintiff cannot take care of himself. Mr.
Ruiz has to cook, clean, wash, shop, and pay
bills, among other things, for plaintiff. Heturns on plaintiff's shower and has to assist
plaintiff into the shower. Plaintiff can
bathe himself while he sits on a stool. Mr.
Ruiz indicated that plaintiff cannot cook
because he will leave the stove on or forget
about the food on the stove. Plaintiff needs
assistance walking because he is not stable on
his feet and may fall at any time.
10. Mr. Jose Ruiz indicated that he is
not able to hold a full time job because it is
unsafe to leave plaintiff at home for a long
period and he therefore works four or five
hours per day, five days a week, and otherwise
he is always with plaintiff.
. . .
16. Paula Medina, a registered nurse with
a Master's Degree in health administration who
also is a certified life planner, drafted a
life care plan for plaintiff at the request of
Patrick Clifford. As a part of this plan, she
indicated that plaintiff would need attendant
care for the remainder of his life. Jose Ruiz
has been providing care to plaintiff but will
be unable to continue if he is not paid.
Defendants argue the testimony of plaintiff's brother and Paula
Medina is incompetent, and they offer conflicting evidence to rebut
this testimony. Specifically, defendants offer the testimony of
plaintiff's treating physician that plaintiff has improved
steadily, plaintiff can remain at home unattended, and vocational
rehabilitation would be appropriate for plaintiff. Defendants
contend this testimony is the only credible testimony concerning
plaintiff's health. However, the Commission
"is the sole judge of the credibility of the
witnesses and the weight to be given their
testimony." Thus, the Commission may assign
more weight and credibility to certain
testimony than other. Moreover, if the
evidence before the Commission is capable of
supporting two contrary findings, the
determination of the Commission is conclusiveon appeal.
Dolbow v. Holland Industrial, 64 N.C. App. 695, 697, 308 S.E.2d
335, 336 (1983),
disc. review denied, 310 N.C. 308, 312 S.E.2d 651
(1984) (quoting
Anderson v. Construction Co., 265 N.C. 431, 434,
144 S.E.2d 272, 274 (1965)). After a careful review of the record
before us, we find there is competent evidence to support the
findings of fact made by the Commission, and these findings support
the Commission's conclusions of law.
Defendants also contend plaintiff is not entitled to attendant
care benefits because plaintiff did not seek approval of the care
before it was performed. N.C. Gen. Stat. § 97-90(a) (1999) states
the charges of
health care providers for medical compensation
under this Article shall be subject to the
approval of the Commission; but no physician
or hospital or other medical facilities shall
be entitled to collect fees from an employer
or insurance carrier until he has made the
reports required by the Commission in
connection with the case.
However, N.C.G.S. § 97-90(a) does not require
pre-approval of fees
charged by health care providers, except for physicians, hospitals,
or other medical facilities. Plaintiff's brother does not fit into
the exceptions for N.C.G.S. § 97-90(a). This interpretation is
consistent with our case law, which has allowed compensation to
health care providers similar to plaintiff's brother, without the
Commission's pre-approval.
See Godwin v. Swift & Co., 270 N.C.
690, 155 S.E.2d 157 (1967)
and London v. Snak Time Catering, Inc.,
136 N.C. App. 473, 525 S.E.2d 203 (2000). We dismiss this
assignment of error.
III.
Defendants next argue the Commission erred in finding that
plaintiff is permanently and totally disabled. Defendants contend
the Commission erred in finding as fact that as "a result of the
October 7, 1997 injury by accident, given plaintiff's vocational
skills and physical limitations, plaintiff has been, and remains,
incapable of earning wages with defendant-employer or in any other
employment since October 8, 1997." Defendants further contend
there is evidence in the record which establishes plaintiff is
capable of returning to work, and the evidence the Commission
relied on is unreliable. However, this Court cannot weigh the
evidence in the record. "It is the Commission's role to resolve
conflicts in the evidence."
Knight v. Cannon Mills Co., 82 N.C.
App. 453, 463, 347 S.E.2d 832, 839,
disc. review denied, 318 N.C.
507, 349 S.E.2d 861 (1986). This Court is limited to reviewing the
record for any competent evidence which would support the
Commission's findings of fact.
See Pittman, 132 N.C. App. at 156,
510 S.E.2d at 709.
In the case before us, Mr. Clifford, the vocational
rehabilitation expert, testified that plaintiff could not perform
even sedentary work due to plaintiff's educational deficits and his
physical limitations, including plaintiff's limited use of his left
arm and his inability to walk short distances without help.
Furthermore, Mr. Clifford testified plaintiff's impaired
concentration, attention, memory, and reasoning make it difficult
for him to do work. Defendants' argument is based solely on theiropinion that Mr. Clifford's testimony is unreliable. However, we
find this evidence to be competent and supporting of the
Commission's findings of fact. These findings support the
Commission's conclusions of law and award for permanent and total
disability. We dismiss this assignment of error.
We affirm the award of the Commission.
Affirmed.
Judges TIMMONS-GOODSON and JOHN concur.
*** Converted from WordPerfect ***