ERNEST RICE,
Employee-Plaintiff
v
.
CITY OF WINSTON-SALEM, Employer, and SELF-INSURED,
Carrier-Defendant
J. Kevin Morton for plaintiff-appellee.
Wilson & Iseman, L.L.P., by S. Ranchor Harris, III, for
defendant-appellant.
WALKER, Judge.
On 7 October 1993, plaintiff suffered a back injury while
operating a backhoe. Plaintiff and defendant entered into a Form
21 agreement which was approved by the Industrial Commission
(Commission) on 7 December 1993. The agreement noted that, due to
the accident, plaintiff suffered a “Lumbar Sacral Strain” and
compensation would be paid “continuing for necessary weeks.”
Plaintiff attempted to return to work on numerous occasions
between 8 October 1993 and 30 November 1995. However, with the
exception of one four-month return to work, he was never able to
continue for more than a few days at any one time. During the
periods of time plaintiff was unable to work, he received total
temporary disability benefits. Defendant was not able to provide
plaintiff with suitable employment and was unable to locate anyother suitable jobs in the relevant job market. On 30 November
1995, plaintiff retired under the defendant's Retirement Disability
Plan (Plan), which fully funds plaintiff's retirement payments
until he reaches the age of 62, at which point his contributions
are utilized.
Defendant unilaterally terminated plaintiff's benefits on 1
December 1995, when he began receiving disability retirement
benefits. Plaintiff then filed a request for a hearing to compel
defendant to reinstate his benefits. On 14 September 2001, the
Commission ordered defendant to pay “ongoing total disability
compensation benefits from 1 December 1995....” Defendant appealed
contending (1) the Commission erred in finding plaintiff was
disabled as a result of his 7 October 1993 accident and (2)
defendant's disability retirement payments entitle it to credit
against any total disability compensation benefits awarded.
We review these assignments of error to determine (1) whether
any competent evidence in the record supports the Commission's
findings of fact and (2) whether those findings support the
Commission's conclusions of law. McAninch v. Buncombe County
Schools, 347 N.C. 126, 131, 489 S.E.2d 375, 378 (1997); Barber v.
Going West Transp., Inc., 134 N.C. App. 428, 434, 517 S.E.2d 914,
919 (1999).
Here, the Commission found in part:
2. Plaintiff's treating physician took
plaintiff out of work and gave him
conservative medical care and treatment.
An MRI was negative. On 4 April 1994,
plaintiff was returned to his regular
work duties without restrictions andcontinued his work duties with defendant
until 18 August 1994, when his physician
again took him out of work with defendant
because of continued complaints of pain
to his low back and left leg. Defendant
resumed paying temporary total disability
compensation benefits. Plaintiff
received medical testing, including a
bone scan, which was negative. On 4
December 4 [sic] 1994, plaintiff returned
to his same work duties without
restrictions. On 22 March 1995,
plaintiff was again taken out of his work
because of pain, and defendant again
resumed temporary total disability
benefits. Plaintiff was diagnosed as
suffering from chronic pain syndrome,
rated with a five percent disability to
his back, and assigned restrictions of
lifting no more than 25 pounds, with
occasional bending, squatting, trunk
rotation, and walking up to 25 yards.
Plaintiff retired from his employment
with defendant on November 30, 1995.
3. Plaintiff's chronic pain is the direct
result of the 7 October 1993 injury.
Plaintiff's preexisting conditions of
hyperlordosis, or curvature of the spine,
and obesity were aggravated by the 7
October 1993 injury, and have impeded
plaintiff's recovery.
4. After 7 October 1993, plaintiff has
continued to suffer from back and left
leg pain for which there is no medical
remedy other than medication and physical
therapy. Plaintiff's condition has not
improved and is chronic.
5. Without seeking Commission approval,
defendant unilaterally terminated
plaintiff's workers' compensation
benefits on or about 1 December 1995,
when plaintiff began receiving disability
retirement benefits. Plaintiff filed a
Form 33 request for a hearing in order to
compel defendant to reinstate benefits.
Defendant filed a Form 33R response which
stated that plaintiff had been released
to return to light duty work on a
graduated basis and that defendantconsidered plaintiff eligible for
disability retirement. The parties have
stipulated that the light duty work was
make work.
6. Plaintiff has contributed to the cost of
the disability insurance and retirement
plan sponsored by defendant. As
stipulated by the parties, however,
disability retirement benefits paid
before plaintiff reaches age 62 are fully
funded by defendant, and it is not until
plaintiff reaches age 62 that his
contributions are utilized under the
plan.
7. Defendant has not provided plaintiff with
suitable employment and has not located
suitable jobs in the relevant job market.
When a Form 21 agreement is entered into and approved by the
Commission, it represents an admission of liability by the
employer, entitling the employee to a continuing presumption of
disability. Watkins v. Central Motor Lines, Inc., 279 N.C. 132,
137-38, 181 S.E.2d 588, 592 (1971); Dalton v. Anvil Knitwear, 119
N.C. App. 275, 282-83, 458 S.E.2d 251, 256-57 (1995); Radica v.
Carolina Mills, 113 N.C. App. 440, 447, 439 S.E.2d 185, 190 (1994).
After the presumption attaches, the burden shifts to the employer
to show that the employee is employable. Dalton, 119 N.C. App. at
284, 458 S.E.2d at 257.
The Commission determines whether an employer has presented
sufficient evidence to rebut the presumption. Kisiah v. W.R.
Kisiah Plumbing, Inc., 124 N.C. App. 72, 81, 476 S.E.2d 434, 439
(1996). The burden is on the employer to show that (1) there are
suitable jobs available and (2) the employee is capable of getting
one. Kennedy v. Duke Univ. Med. Center, 101 N.C. App. 24, 33, 398S.E.2d 677, 682 (1990); see also Franklin v. Broyhill Furniture
Industries, 123 N.C. App. 200, 206, 472 S.E.2d 382, 386 (1996).
The mere fact that an employee returns to work does not necessarily
destroy the presumption. Radica, 113 N.C. App. at 447, 439 S.E.2d
at 190; Martin v. Piedmont Asphalt & Paving Co., 113 N.C. App. 121,
124-25, 437 S.E.2d 696, 698 (1993). Thus, absent waiver of the
presumption by the employee or a hearing by the Commission, no
change in disability benefits owed may occur. Radica, 113 N.C.
App. at 447-48, 439 S.E.2d at 190; see also Franklin, 123 N.C.
App. at 208, 472 S.E.2d at 388 (Walker, J., concurring).
Here, the Commission chose to accept plaintiff's evidence of
his ongoing disability and the burden was on defendant to overcome
the Form 21 presumption. Since defendant failed to offer evidence
that there were suitable jobs available to plaintiff and that he
was capable of getting one, taking into account his physical and
vocational limitations, the Commission did not err in concluding
that defendant failed to rebut plaintiff's presumption of
continuing disability.
Next, defendant contends it is entitled to “a credit for
voluntary payments made to plaintiff.” It argues that even though
the Commission ultimately found plaintiff's injuries compensable,
it should be allowed a credit for payments made pursuant to its
Plan.
Under N.C. Gen. Stat. § 97-42:
Payments made by the employer to the injured
employee during the period of his disability,or to his dependents, which by the terms of
this Article were not due and payable when
made, may, subject to the approval of the
Commission be deducted from the amount to be
paid as compensation.
N.C. Gen. Stat. § 97-42 (1993). This Court has held that “due and
payable” refers only to whether an employer has accepted an
employee's injuries as compensable when payments for which credit
is sought are made. Estes v. N. C. State University, 102 N.C. App.
52, 58, 401 S.E.2d 384, 387 (1991); see also Foster v. Western-
Electric Co., 320 N.C. 113, 357 S.E.2d 670 (1987); Moretz v.
Richards & Associates, 316 N.C. 539, 342 S.E.2d 844 (1986).
However, even where these payments were “due and payable,” and
thus, no credit is allowed, an employee may not receive more in
wage supplements than he is entitled to receive under the Workers'
Compensation Act. Moretz, 316 N.C. at 542, 342 S.E.2d at 845-46;
Estes, 102 N.C. App. at 58, 401 S.E.2d at 387. Thus, where an
employer makes payments to an employee under a wage-replacement
program, that employer is not required to make duplicative payments
but is entitled to an offset against the workers' compensation
benefits. Estes, 102 N.C. App. at 58, 401 S.E.2d at 387.
Here, since defendant had accepted plaintiff's injury as
compensable, the Commission correctly found that defendant's
payments under the Plan to plaintiff were due and payable when
made. Kisiah, 124 N.C. App. at 82-83, 476 S.E.2d at 440; Radica,
113 N.C. App. at 447, 439 S.E.2d at 190. Therefore, defendant's
payments do not qualify for credit under § 97-42. In Moretz, the parties stipulated the employee's injury was
compensable, and the employer paid workers' compensation benefits
for total disability for 362 weeks. Moretz, 316 N.C. at 540, 342
S.E.2d at 845. The employee later argued to the Commission that he
should have been awarded additional compensation for that same
period but for a separate work-related injury. Id. The Commission
awarded the employee an additional 180 weeks of workers'
compensation benefits. Id. at 540, 342 S.E.2d at 845. Our Supreme
Court affirmed this Court's holding that, because the benefits
previously allowed were due and payable when made, the employer was
not entitled to a credit. Id. at 540, 342 S.E.2d at 846. However,
the employer was not required to compensate the employee for 180
weeks for his additional injury in excess of the total disability
benefits allowed for 362 weeks. Id. at 542, 342 S.E.2d at 846.
Because the employee had already received workers' compensation
benefits for 362 weeks, the employer was entitled to an offset
resulting in the employee not being entitled to further benefits.
Id. at 542, 342 S.E.2d at 847.
The issue remaining in this case is whether defendant's
payments to plaintiff pursuant to its Plan constituted a wage
replacement program such that it could form the basis of an offset
against workers' compensation benefits. Although the nature of the
program by which the employee was paid wage supplements was not an
issue in Moretz, in Evans, payments for which an employer was
seeking an offset were made pursuant to the employer's sickness and
accident disability plan. Evans v. AT&T Technologies, Inc., 332N.C. 78, 79, 418 S.E.2d 503, 504 (1992). That plan allowed for
payments regardless of the cause of an employee's injury, Id. at
79, 418 S.E.2d at 504, and “operated as a wage replacement program
tantamount to workers' compensation.” Estes, 102 N.C. App. at 58-
59, 401 S.E.2d at 386. Therefore, the Court held the employer was
entitled to an offset as was necessary to avoid duplicative
payments. Evans, 332 N.C. at 85, 418 S.E.2d at 508.
However, in Estes, payments for which the employer was seeking
an offset were in the form of vacation and sick leave benefits
provided by the employer. Estes, 102 N.C. App. at 53, 401 S.E.2d
at 384. In holding the employee's accumulated sick and vacation
leave could not be used by the employer to offset workers'
compensation disability benefits, this Court reasoned that the
employee's sick and vacation leave were earned benefits. Id. at
58, 401 S.E.2d at 387. Additionally, whereas workers' compensation
benefits are available only for work-related injury, the employee's
vacation and sick leave could have been taken for other reasons,
such as “to renew physical and mental capabilities, for personal
reasons, for absences due to adverse weather conditions, and for
personal illness or illnesses in the immediate family.” Id.
In the present case, the Commission correctly found that
payments to plaintiff under the Plan were due and payable when
made. However, the Commission failed to (1) make findings
concerning the nature of the Plan and (2) determine whether the
Plan was a wage-replacement benefit equivalent to workers'
compensation benefits or whether the Plan served separately toentitle plaintiff to additional payments over and beyond the
workers' compensation benefits. Therefore, this matter is remanded
to the Commission to make additional determinations in accordance
with this opinion.
Affirmed in part; vacated and remanded in part.
Judges McGEE and THOMAS concur.
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