1. Workers' Compensation_-sanctions--striking defenses--failure to answer
interrogatories
The Industrial Commission did not abuse its discretion in a workers' compensation case
by sanctioning defendant employer and striking its defenses based on a failure to comply with an
order compelling discovery, because: (1) defendant was warned for a period of three and a half
months that it would be subject to sanctions expressly approved under Rule 37 as authorized by
Rules 605 and 802 of the Workers' Compensation Rules for its continued noncompliance with
the deputy commissioner's order; and (2) defendant merely presents on appeal the defenses
expressly barred by the Commission as a result of the sanctions.
2. Workers' Compensation--total disability benefits--findings of fact--conclusions of
law
The Industrial Commission's findings of fact and conclusions of law concerning
plaintiff's entitlement to total disability benefits from 19 September 2000 in a workers'
compensation case were supported by competent evidence, because plaintiff's testimony that his
efforts to obtain subsequent employment were thwarted by his medical restrictions resulting from
the accident was supported by the medical records submitted to the Commission.
3. Workers' Compensation_-disability--medical expenses
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff employee was entitled to the payment of medical expenses incurred for the
treatment of the injuries sustained or further treatment necessary to cure, give relief, or lessen
plaintiff's period of disability, because: (1) defendant violated the rules of appellate procedure by
failing to include any citations of authority upon which it relies as required by N.C. R. App. P.
28(b)(6); (2) defendant cannot rely on defenses that have previously been found unavailable; and
(3) both the medical records and plaintiff's testimony are fully competent to support the
Commission's findings that plaintiff suffered a compensable work-related injury by accident, and
that finding supports the conclusion of law that plaintiff is entitled to workers' compensation
benefits.
4. Appeal and Error--preservation of issues--failure to present argument
Although defendant contends the Industrial Commission erred in a workers'
compensation case by its finding of fact that defendant engaged in stubborn and unfounded
litigiousness and by its conclusions of law requiring defendant to pay plaintiff's attorney fees and
the costs of the action, these assignments of error are abandoned because defendant failed to
bring forward any argument for these assignments of error.
CALABRIA, Judge.
Mabrey Smith Motor Company (“defendant”) appeals an opinion
and award issued by the North Carolina Industrial Commission
(“Commission”) awarding Garland Joyner (“plaintiff”) total
disability benefits, medical expenses, and attorneys' fees for
plaintiff's work-related injuries resulting from a motor vehicle
accident. We affirm.
On 6 July 1998, plaintiff was employed as a mechanic for
defendant. While plaintiff was test-driving a vehicle he repaired,
he was struck from behind by another vehicle. Plaintiff sought
medical treatment from Carteret General Hospital and was diagnosed
with cervical strain. Plaintiff's condition grew worse. He was
placed on medical restrictions by his treating physician and missed
work periodically due to dizziness, blurred vision, and headaches
associated with the accident. On 18 September 2000, plaintiff's
wife called defendant and reported plaintiff's inability to work
that day because of a headache. The following day, defendant
informed plaintiff he was terminated for failing to follow
personnel policy by having his wife call, rather than himself, to
report that he was ill and unable to work.
On 9 May 2000, plaintiff filed a claim for workers'
compensation benefits for injuries “caused [on 6 July 1998] bybeing rear ended . . . .” On 12 July 2000, plaintiff reported to
the Commission that the parties failed to reach an agreement
regarding compensation because plaintiff was “unable to locate
workers' compensation insurance, and employer has neither accepted
or denied [the] claim.” Plaintiff requested that his claim be
assigned for hearing.
On 18 July 2000, plaintiff sent defendant a set of
interrogatories. Two months later, after defendant failed to
timely respond to the interrogatories, plaintiff wrote to defendant
and requested that defendant forward the answers “as soon as
possible.” Defendant again failed to respond, and the hearing
scheduled for 3 October 2000 was converted into a pretrial
conference. At the pretrial conference, the parties stipulated to
the following: (1) an employer-employee relationship existed
between defendant and plaintiff; (2) defendant was non-insured; (3)
plaintiff's average weekly wage was $410.00; and (4) the date of
injury was 6 July 1998. An order of continuance, granted by Deputy
Commissioner Morgan S. Chapman, mandated that defendant respond to
plaintiff's interrogatories “within two weeks or be subject to
sanctions.”
On 1 November 2000, plaintiff wrote to defendant requesting
answers to plaintiff's interrogatories “as soon as possible.” When
defendant failed to respond to the sought interrogatories,
plaintiff wrote defendant again on 12 December 2000 to remind it
that the order of continuance required defendant to answer the
interrogatories within two weeks. Plaintiff warned defendant that,if its answers were not received by 19 December 2000, plaintiff
would request sanctions. Defendant never responded.
At a hearing held 6 February 2001, Deputy Commissioner George
T. Glenn, II, imposed sanctions against defendant “for defendant's
failure to comply with Deputy Commissioner Morgan Chapman's Order
of October 11, 2000” by “striking any defenses that the defendant
may have to the claim of plaintiff.” Accordingly, Deputy
Commissioner Glenn entered an opinion and award in favor of
plaintiff for a work-related injury sustained by plaintiff while in
the course and scope of his employment. The hearing was limited to
the issue of the workers' compensation benefits to which plaintiff
was entitled as a result of his injuries. The deputy commissioner
awarded plaintiff total disability benefits at the rate of $532.00
per week beginning 19 September 2000 and continuing until plaintiff
returned to work “earning the same or greater wages as he was
earning at the time of his injury” or the Commission ordered
otherwise. Medical expenses, attorneys' fees and costs were also
awarded. The Full Commission affirmed the opinion and award of the
deputy commissioner, and defendant appeals. On appeal, defendant
contends (I) the Commission should not have sanctioned defendant by
striking its defenses; (II) the Commission's findings of fact and
conclusions of law concerning plaintiff's entitlement to total
disability benefits from 19 September 2000 are not supported by
competent evidence; and (III) there was insufficient evidence that
plaintiff is entitled to the payment of medical expenses.
I. Sanctions [1] North Carolina General Statute § 97-80(a) (2001) “gives
the Commission the power to make rules consistent with the Workers'
Compensation Act for carrying out its provisions.” Matthews v.
Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 15-16, 510
S.E.2d 388, 392 (1999). Rule 605(1) of the Workers' Compensation
Rules of the North Carolina Industrial Commission provides that
parties may obtain discovery by the use of interrogatories, and
where there is a “failure to answer an interrogatory, the party
submitting the interrogatories may move the Industrial Commission
for an order compelling answer.” Workers' Comp. R. of N.C. Indus.
Comm'n 605(1), 2002 Ann. R. (N.C.) 765. The rule goes on to
expressly provide for sanctions for “failure to comply with a
Commission order compelling discovery.” Workers' Comp. R. of N.C.
Indus. Comm'n 605(5), 2002 Ann. R. (N.C.) 766.
Rule 802 of the Workers' Compensation Rules of
the North Carolina Industrial Commission
provides that “failure to comply” with the
Workers' Compensation Rules “may subject the
violator to any of the sanctions outlined in
Rule 37 of the North Carolina Rules of Civil
Procedure . . . against the party or his
counsel whose conduct necessitates the order.”
Hauser v. Advanced Plastiform, Inc., 133 N.C. App. 378, 387, 514
S.E.2d 545, 551 (1999). Rule 37 expressly allows a court to
sanction a party failing to comply with an order by “refusing to
allow the disobedient party to support or oppose designated claims
or defenses, or prohibiting him from introducing designated matters
in evidence[.]” N.C. Gen. Stat. § 1A-1, Rule 37(b)(2)b (2001).
“The administration of [discovery] rules, in particular the
imposition of sanctions, is within the broad discretion of thetrial court. The trial court's decision regarding sanctions will
only be overturned on appeal upon showing an abuse of that
discretion.” Williams v. N.C. Dep't of Correction, 120 N.C. App.
356, 359, 462 S.E.2d 545, 547 (1995) (citations omitted).
In the instant case, defendant asserts the hearing officer
should not have stricken its defenses. Defendant failed to answer
plaintiff's interrogatories sent to it on 18 July 2000 within the
appropriate time period and failed to request any extension of
time. After defendant was ordered by the Commission to respond to
plaintiff's interrogatories within two weeks of the pretrial
conference order filed 11 October 2000, defendant again failed to
answer plaintiff's interrogatories or request any extension of
time. Defendant further chose to ignore plaintiff's letters
reminding defendant of its obligation to comply with the order by
answering the interrogatories and ultimately warning defendant of
plaintiff's impending intent to seek sanctions. Over three and a
half months after defendant was warned it would be subject to
sanctions, the deputy commissioner imposed sanctions expressly
approved under Rule 37 as authorized by Rules 605 and 802 of the
Workers' Compensation Rules. Defendant cannot complain when the
Commission fulfills its warning and imposes sanctions for
continuing noncompliance with the deputy commissioner's order
spanning a period of almost three and a half months. We find no
abuse of discretion.
Moreover, we note defendant's arguments to this Court fail to
assert the Commission abused its discretion in imposing sanctions. Rather, defendant merely presents on appeal the defenses expressly
barred by the Commission as a result of the sanctions. These
defenses include that the work on the vehicle cannot be considered
part of the scope of his work, that plaintiff's testimony was
contradictory, and that plaintiff had not provided medical records
to defendant. Having concluded the Commission did not abuse its
discretion by striking these defenses, we do not entertain them on
appeal.
II. Onset of Disability
[2] Defendant next asserts the conclusions of law made by the
Commission regarding the onset of plaintiff's disability are not
supported by the findings of fact, and the findings of fact are not
supported by the evidence presented at the hearing. Specifically,
defendant argues the Commission's conclusion, that plaintiff was
entitled to total disability benefits from the date plaintiff was
terminated, was not supported by findings of fact or competent
evidence because plaintiff came to work the day he was terminated;
therefore, defendant argues, plaintiff could not have been unable
to work. Defendant additionally argues, in the alternative, that
plaintiff was fired only because he violated personnel policy by
failing to personally call in sick. We examine these contentions
together.
The Commission found as fact that plaintiff had not worked
since the date of his termination “as a result of problems
associated with his injury by [the] accident on July 6, 1998” and
concluded plaintiff was entitled to total disability benefits fromthat date. We are not persuaded that plaintiff is barred from
benefits because defendant alleges plaintiff reported to work the
day he was fired, that he disregarded the existing policy requiring
employees to personally call in sick, and that such misconduct or
fault could have been a constructive refusal to work. To determine
entitlement to benefits following an employee's termination in
situations analogous to the facts presented by the case at bar, we
examine the evidence of the cause of the employee's diminution or
loss of wages.
[T]he test is whether the employee's loss
of, or diminution in, wages is attributable to
the wrongful act resulting in loss of
employment, in which case benefits will be
barred, or whether such loss or diminution in
earning capacity is due to the employee's
work-related disability, in which case the
employee will be entitled to benefits for such
disability.
Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 234, 472
S.E.2d 397, 401 (1996). In the instant case, plaintiff expressly
testified that his efforts to obtain subsequent employment were
thwarted by his medical restrictions resulting from the accident
and no one would consider him because of those restrictions.
Although further competent evidence is not required, Adams v. AVX
Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), we note
plaintiff's testimony is fully supported by the medical records
submitted to the Commission. Whether we would have reached a
different result on the evidence is irrelevant, and more
importantly, beyond the scope of our review. Id. Under ourholding in Seagraves, we find there was competent evidence to
support the findings and conclusions of the Commission.
III. Medical Expenses
[3] Finally, defendant argues there was insufficient evidence
to find plaintiff is entitled to the payment of medical expenses
incurred for the treatment of the injuries sustained or further
treatment necessary to cure, give relief, or lessen plaintiff's
period of disability. This argument fails for multiple reasons.
First, defendant violated our rules of appellate procedure by
failing to include any citations of authority upon which it relies.
N.C. R. App. P. 28(b)(6) (2003). Second, we need not revisit
defendant's recapitulation of defenses previously considered and
found unavailable. Third, both the medical records and plaintiff's
testimony are fully competent to support the Commission's findings
that plaintiff suffered a compensable work-related injury by
accident, and that finding supports the conclusion of law that
plaintiff is entitled to workers' compensation benefits.
[4] Defendant has brought forward no argument for its
assignments of error concerning the Commission's findings of fact
that it “engaged in stubborn and unfounded litigiousness during the
course of defending this claim” or the Commission's conclusions of
law requiring defendant to pay plaintiff's attorneys' fees and the
costs of the action. We deem these assignments of error abandoned.
N.C. R. App. P. 28(b)(6) (2003). The opinion and award of the
Commission is affirmed.
Affirmed. Judges McGEE and HUNTER concur.
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