LINDA A. TRIVETTE,
Employee, Plaintiff,
v
.
MID-SOUTH MANAGEMENT, INC.,
Employer,
CNA INSURANCE COMPANIES,
Carrier, Defendants.
Harris, Ragan, Patterson & Rodgers, P.L.L.C., by James W.
Ragan, for the plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Mel J.
Garofalo and Shelley W. Coleman, for the defendant-appellants.
HUDSON, Judge.
Defendants appeal an opinion and award entered 28 February
2001 by the Full Commission (“Commission”) of the North Carolina
Industrial Commission awarding plaintiff, Linda Trivette,
compensation for a work-related injury and an order entered 22 May
2001 by the Commission denying defendants' motion to reconsider the
opinion and award. We affirm.
This appeal arises from a worker's compensation claim filed by
plaintiff alleging injury to her lower back during her employment
by defendant, Mid-South Management, Inc. After plaintiff filed her
claim, defendant admitted liability for medical expenses but didnot admit liability for any disability, and this litigation ensued.
The Commission awarded plaintiff benefits for temporary total
disability for the period from 22 June 1993 through 9 July 1993 and
for medical expenses. Plaintiff appealed and this Court (1)
affirmed the Commission's determination that plaintiff was not
entitled to an award of benefits for total disability for the
worsening of a pre-existing condition, and (2) remanded to the
Commission for findings regarding the issue of whether plaintiff
has sustained, and is entitled to compensation for, permanent
partial impairment. See Trivette v. Mid-South Mgmt., Inc., 141
N.C. App. 151, 541 S.E.2d 523 (2000) (Table).
On 28 February 2001, the Commission found that, in addition to
the benefits previously awarded, plaintiff was entitled to
compensation for a 5% permanent partial impairment of her lower
back and compensation for temporary total disability from 31 May
1994 until 7 January 1997 when plaintiff reached maximum medical
improvement. Defendants appeal to this court contending (1) that
the Commission exceeded the scope of its authority in awarding
compensation for temporary total disability from 31 May 1994 until
7 January 1997, and (2) that even if the Commission acted within
its authority, the evidence did not support the Commission's
findings of fact and conclusions of law concerning temporary total
disability benefits. We affirm the 28 February 2001 award of the
Commission.
In their first argument, defendants contend that the
Commission exceeded its authority in awarding compensation fortemporary total disability for the period from 31 May 1994 until 7
January 1997. Defendants argue that the Commission was instructed
to address one issue on remand, the issue of permanent partial
impairment, and that it was error for the Commission to address any
other issue. In Hogan v. Cone Mills Corp., 315 N.C. 127, 137, 337
S.E.2d 477, 483 (1985), the Supreme Court observed that “[a]lthough
the Industrial Commission is not a court with general implied
jurisdiction, it is clothed with such implied power as is necessary
to perform the duties required of it by the law which it
administers.” The Industrial Commission, as part of its judicial
powers, “has inherent power to set aside one of its former
judgments,” because the “power to provide relief against the
operation of a former judgment is an integral part of the judicial
power.” Hogan, 315 N.C. at 137, 139, 337 S.E.2d at 483, 484; see
also Jenkins v. Piedmont Aviation Servs., 147 N.C. App. 419, 424,
557 S.E.2d 104, 107-08 (2001) (holding that in certain
circumstances, because of the judicial functions of the Commission,
it may set aside a previous decision, even though it was not
appealed). The Commission has the authority to set aside its
former decisions in their entirety, which certainly includes the
authority to set them aside in part in some circumstances, in the
interest of justice. Moreover, in Crump v. Independence Nissan,
112 N.C. App. 587, 589, 436 S.E.2d 589, 592 (1993), this Court
noted that “if necessary, the full commission must resolve matters
in controversy even if those matters were not addressed by the
deputy commissioner.” Here, on remand, the Commission, in addition to its original
findings, addressed the issue of plaintiff's permanent partial
impairment and her temporary total disability. Because the
evidence indicated that plaintiff had a rating of her permanent
impairment, the Commission was required to address, if plaintiff
desired, whether the scheduled benefit for her rating under N.C.
Gen. Stat. § 97-31 was a more favorable remedy than temporary total
disability under N.C. Gen Stat. § 97-29 . Whitley v. Columbia Mfg.
Co., 318 N.C. 89, 348 S.E.2d 336 (1986). Thus, we do not believe
that, under these circumstances, the Commission exceeded its
authority in resolving the matter of plaintiff's entitlement to
temporary total disability even though this issue was not addressed
by this Court in the first appeal.
In their second argument, defendants contend that the “record
is devoid of competent evidence to support the findings of fact and
conclusions of law of the Full Commission.” On appeal of a
workers' compensation decision, we are “limited to reviewing
whether any competent evidence supports the Commission's findings
of fact and whether the findings of fact support the Commission's
conclusions of law.” Deese v. Champion Int'l Corp., 352 N.C. 109,
116, 530 S.E.2d 549, 553 (2000). An appellate court reviewing a
workers' compensation claim “does not have the right to weigh the
evidence and decide the issue on the basis of its weight. The
court's duty goes no further than to determine whether the record
contains any evidence tending to support the finding.” Adams v.
AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quotingAnderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272,
274 (1965)), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). In
reviewing the evidence, we are required, in accordance with the
Supreme Court's mandate of liberal construction in favor of
awarding benefits, to take the evidence “in the light most
favorable to plaintiff.” Id.
The Full Commission is the “sole judge of the weight and
credibility of the evidence.” Deese, 352 N.C. at 116, 530 S.E.2d
at 553. Furthermore,
the Commission does not have to explain its
findings of fact by attempting to distinguish
which evidence or witnesses it finds credible.
Requiring the Commission to explain its
credibility determinations and allowing the
Court of Appeals to review the Commission's
explanation of those credibility
determinations would be inconsistent with our
legal system's tradition of not requiring the
fact finder to explain why he or she believes
one witness over another or believes one piece
of evidence is more credible than another.
Id. at 116-17, 530 S.E.2d at 553. Additionally, in making its
determinations, the Commission “is not required . . . to find facts
as to all credible evidence. That requirement would place an
unreasonable burden on the Commission. Instead the Commission must
find those facts which are necessary to support its conclusions of
law.” Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 602, 532
S.E.2d 207, 213 (2000) (internal quotation marks omitted)
(alteration in original); see N.C. Gen. Stat. § 97-86 (2001).
Moreover, the Commission must “make specific findings with respect
to crucial facts upon which the question of plaintiff's right to
compensation depends.” Gaines v. Swain & Son, Inc., 33 N.C. App.575, 579, 235 S.E.2d 856, 859 (1977).
Here, the defendants have challenged the following provisions
in the Opinion and Award:
Findings of Fact
11. Dr. Stutesman also diagnosed plaintiff
with piriformis syndrome, which involves
spasticity of a deep pelvic muscle which
binds and irritates the sciatic nerve
resulting in lower back pain. Dr.
Stutesman directly related plaintiff's
problems with the piriformis muscle to
the work-related injury, although in
retrospect, Dr. Stutesman stated that the
severity of the syndrome was probably due
to the fact that plaintiff also had
multiple sclerosis.
12. On May 31, 1994, plaintiff underwent
piriformis release surgery performed by
Dr. Scott McCloskey. The surgery was
successful and plaintiff's deep buttock
and hip pain was somewhat relieved;
however, due to plaintiff's multiple
sclerosis condition, she continued to
experience a degree of spasticity. On
January 7, 1997, Dr. Stutesman stated
that plaintiff had reached maximum
medical improvement as far as her back
injury, and she rated plaintiff with a 5%
permanent partial disability to her back.
The rating was based upon the work
injury, the SI joint dysfunction and the
piriformis injury which Dr. Stutesman
directly related to the work injury.
19. Dr. Yount indicated that plaintiff's June
21, 1993, injury was one which normally
would heal in a 6 to 8 week period with
conservative treatment.
22. Plaintiff was subsequently disabled as a
result of her piriformis release surgery
on May 31 1994 and continued to be
disabled until 7 January 1997 when she
reached maximum medical improvement to
her lower back with a 5% permanentpartial disability rating.
Conclusions of Law
4. As a result of the injury by accident of
June 21, 1993, plaintiff's piriformis
condition was significantly aggravated
and resulted in piriformis muscle release
surgery on 31 May 1994. As a result of
the injury, plaintiff sustained a 5%
permanent partial disability to her lower
back. Accordingly, plaintiff is entitled
to compensation in the amount of $193.64
per week for a period of 15 weeks. N.C.
Gen. Stat. § 97-31(23).
5. Plaintiff is entitled to temporary total
disability compensation in the amount of
$193.64 per week from the 31 May 1994
date of her piriformis release surgery
through 7 January 1997 when she reached
maximum medical improvement to her lower
back. N.C. Gen. Stat. § 97-29.
Award
2. Defendants shall pay plaintiff temporary
total disability compensation in the
amount of $193.64 per week beginning on
31 May 1994 and continuing through 7
January 1997. Defendants shall pay this
amount in a lump sum, subject to
attorney's fees approved below.
3. Subject to attorney's fees approved
below, defendants shall pay plaintiff a
lump sum in the amount of $2,904.60
representing a 5% permanent partial
disability to her back, pursuant to the
June 7, 1997 rating provided by Dr.
Stutesman.
4. Plaintiff's counsel is entitled to a
reasonable attorney's fee of 25% of
plaintiff's recovery in Paragraphs 2 and
3 above. The fee shall be deducted from
the lump sum awards and paid directly to
plaintiff's counsel.
Defendants argue that Dr. Stutesman's testimony does not
support these findings and conclusions of total disability because
certain portions of the doctor's testimony “reveal[] that Dr.
Stutesman actually felt that plaintiff's disability was a result of
the multiple sclerosis.” We disagree and conclude that the
testimony supports the findings of the Commission.
First, we address whether “any competent evidence supports the
Commission's findings of fact” concerning plaintiff's temporary
total disability. Deese, 352 N.C. at 116, 530 S.E.2d at 553. The
employee bears the burden of showing that he has suffered a
“disability” (loss of wage-earning capacity) pursuant to N.C. Gen.
Stat. § 97-29 (2001) or N.C. Gen. Stat. § 97-30 (2001). See N.C.
Gen. Stat. § 97-2(9) (2001). According to Russell v. Lowes Product
Distribution, a plaintiff may satisfy this initial burden by one of
several approaches:
(1) the production of medical evidence that he
is physically or mentally, as a consequence of
the work related injury, incapable of work in
any employment; (2) the production of evidence
that he is capable of some work, but that he
has, after a reasonable effort on his part,
been unsuccessful in his effort to obtain
employment; (3) the production of evidence
that he is capable of some work but that it
would be futile because of preexisting
conditions, i.e., age, experience, lack of
education, to seek other employment; or (4)
the production of evidence that he has
obtained other employment at a wage less than
that earned prior to the injury.
108 N.C. App. 762, 765-66, 425 S.E.2d 454, 457 (1993) (internal
citations omitted).
Plaintiff's evidence, including the testimony of Dr.Stutesman, established that the combination of her pre-existing
multiple sclerosis and the injury that required piriformis release
surgery rendered her physically incapable of work in any
employment. Specifically, Dr. Stutesman stated the following at
her deposition:
Q. . . . . So are you saying here her
inability to work at this point in time
is due to a combination of things?
MR. KURANI: Objection.
THE WITNESS: Yes.
Q. (By Ms. Thomas) Okay. And those things
are MS, back pain and deformities?
MR. KURANI: Objection.
THE WITNESS: Yes.
Later in her deposition, Dr. Stutesman reiterated that plaintiff's
inability to work was due to “a combination of the two” factors _
back problems and multiple sclerosis.
Based on this evidence, the Commission found that plaintiff's
“disability” or loss of wage-earning capacity during the period
ending 7 January 1997 was total, meaning that she was “entitled to
receive benefits for as long as the total loss of wage-earning
capacity lasts.” Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1,
10, 562 S.E.2d 434, 441 (2002) (citing N.C. Gen. Stat. § 97-29);
Gupton v. Builders Transport, 320 N.C. 38, 42, 357 S.E.2d 674, 678
(1987) (defining “disability” for purposes of workers' compensation
benefits).
Dr. Stutesman last saw plaintiff on 23 May 1996. In responseto a letter from defendants on 7 January 1997, “Dr. Stutesman
stated that plaintiff had reached maximum medical improvement as
far as her back injury, and she rated plaintiff with a 5% permanent
partial disability to her back. The rating was based upon the work
injury, the SI joint dysfunction and the piriformis injury which
Dr. Stutesman directly related to the work injury.” According to
Dr. Stutesman, “maximum medical improvement” signifies “when a
person's condition stabilizes for at least 6 months and we do not
see any deterioration or improvement.” However, maximum medical
improvement is not the point at which temporary total disability
must end, if the employee has not regained her ability to earn pre-
injury wages. See Knight; Russos v. Wheaton Indus., 145 N.C.
App.164, 167-68, 551 S.E.2d 456, 459 (2001) (disc. rev. denied, 355
N.C. 214, 560 S.E.2d 135 (2002)). Rather, it is the first point at
which the employee may decide to exercise her selection of the more
favorable remedy, as between disability benefits, (partial 97-30 or
total 97-29), and the benefits provided under the 97-31 schedule
for the rating. See Knight; Whitley v. Columbia Manufacturing; and
Gupton. Here, the plaintiff apparently sought to select the
benefits under the schedule beginning 7 January 1997, and has
neither appealed nor cross-assigned as error the Commission's
determination that her ongoing benefits should stop on that date.
Dr. Stutesman carefully explained the basis for her 5% rating, and
defendants have not argued that the rating is unsupported by the
evidence. Thus, we conclude that the evidence supports the
challenged findings of fact, which in turn support the conclusionsof law and award of the Commission.
Defendants also contend that the Commission erred in denying
their motion to reconsider. In light of our decision on the merits
in this opinion, we need not address this contention. The 28
February 2001 Opinion and Award of the Commission is affirmed.
Affirmed.
Judges WYNN and CAMPBELL concur.
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