Appeal by plaintiff from opinion and award filed 25 March 2003
by the North Carolina Industrial Commission. Heard in the Court of
Appeals 3 March 2004.
The Roberts Law Firm, P.A., by Scott W. Roberts, for
plaintiff-appellant.
Alala Mullen Holland & Cooper P.A., by J. Reid McGraw, Jr. and
John H. Russell, Jr., for defendant-appellee.
BRYANT, Judge.
Marshall Williams (plaintiff) appeals an opinion and award of
the Full Commission filed 25 March 2003 that concluded plaintiff
failed to establish proof of disability after reaching maximum
medical improvement (MMI), and therefore, was not entitled to
temporary total disability benefits. For the following reasons, we
remand for reconsideration in light of Knight v. Wal-Mart Stores,
Inc., 149 N.C. App. 1, 562 S.E.2d 434 (2002), aff'd per curiam, 357
N.C. 44, 577 S.E.2d 620 (2003); see also Bennett v. ProgressiveFurniture Co., 160 N.C. App. 250, 584 S.E.2d 108 (2003)
(unpublished opinion).
Plaintiff suffered a compensable back injury on 23 June 1999
while employed as a shop mechanic at Mount Holly Spinning Mills
(defendant). Defendant entered a Form 60 agreement and paid
temporary total disability benefits to plaintiff from 1 July 1999
until 5 April 2000, when plaintiff returned to light duty work with
defendant. Upon his return to work, plaintiff was paid temporary
partial disability benefits based upon the rate of two-thirds of
the difference between plaintiff's pre-injury average weekly wage
and his return to work wage. Plaintiff continued to work for
defendant until his position was eliminated on 20 July 2000 as part
of a companywide layoff. Plaintiff continued to receive temporary
partial disability benefits after the layoff.
On 3 October 2000, plaintiff was found to have reached MMI and
was issued a fifteen percent permanent partial disability rating.
Plaintiff voluntarily participated in vocational rehabilitation
offered by defendant in December 2000.
This matter came for hearing before a deputy commissioner on
24 January 2001. By opinion and award filed 3 May 2001, the deputy
commissioner concluded plaintiff continued to be partially
incapacitated since his layoff and was entitled to continued
receipt of temporary partial payments after reaching MMI. Both
plaintiff and defendant appealed the 3 May 2001 opinion and award.
On 17 May 2001, plaintiff discontinued his participation in
vocational rehabilitation after starting the application process toreceive Social Security benefits. On 18 June 2001, defendant filed
a motion to suspend payment of plaintiff's temporary partial
disability benefits pursuant to N.C. Gen. Stat. § 97-25 for failure
to continue participation with vocational efforts. These matters
came for hearing before the Full Commission on 4 December 2001.
By opinion and award filed 25 March 2003, the Full Commission
concluded plaintiff was temporarily and totally disabled from the
time of his layoff until he reached MMI but failed to meet his
burden of presenting evidence to establish disability after
reaching MMI. Additionally, the Full Commission concluded
plaintiff unilaterally withdrew from vocational rehabilitation and
did not establish disability after the date of withdrawal. The
Full Commission awarded plaintiff total disability compensation
pursuant to N.C. Gen. Stat. § 97-31 for the period covering the
date of his layoff until the date he reached MMI.
Plaintiff gave notice of appeal on 28 April 2003.
_________________________
This Court reviews conclusions of law of the Full Commission
by applying the
de novo standard.
Allen v. Roberts Elec. Contr'rs,
143 N.C. App. 55, 63, 546 S.E.2d 133, 139 (2001). In the case
sub
judice, a number of the Commission's conclusions of law at issue
appear to be in direct contradiction to case law as decided by this
Court and recently affirmed by the North Carolina Supreme Court.
More specifically, the Commission did not consider the holding in
Knight v. Wal-Mart Stores, Inc. in rendering its decision.
Accordingly, we remand to the Full Commission for reconsideration. In
Knight, this Court articulated that
the primary significance of the concept of MMI
is to delineate a crucial point in time only
within the context of a claim for scheduled
benefits under N.C. Gen. Stat. § 97-31, and
that the concept of MMI does not have any
direct bearing upon an employee's right to
continue to receive temporary disability
benefits once the employee has established a
loss of wage-earning capacity pursuant to N.C.
Gen. Stat. § 97-29 or § 97-30.
Knight, at 13-14, 562 S.E.2d at 443;
see also Bennett, 160 N.C.
App. 250, 584 S.E.2d 108 (“Since the only issues before the
Commission were [the plaintiff's] entitlement to ongoing disability
benefits under N.C. Gen. Stat. § 97-29 and future medical expenses,
whether or not [the plaintiff] has reached MMI is irrelevant at
this stage in the proceedings.”).
In the instant case, the Full Commission specifically
concluded that plaintiff failed to establish disability after
reaching MMI. This conclusion completely ignores the significance
of MMI as articulated in
Knight.
Moreover, it appears the Full Commission erred in concluding
plaintiff failed to meet his burden to establish disability after
ceasing vocational rehabilitation. Defendant sought to suspend
payment of plaintiff's temporary partial disability benefits
pursuant to N.C. Gen. Stat. § 97-25 for failure to continue
participation with vocational efforts. N.C. Gen. Stat. § 97-25
reads in pertinent part:
The refusal of the employee to accept any
medical, hospital, surgical or other treatment
or rehabilitative procedure
when ordered by
the Industrial Commission shall bar said
employee from further compensation until suchrefusal ceases, and no compensation shall at
any time be paid for the period of suspension
unless in the opinion of the Industrial
Commission the circumstances justified the
refusal, in which case, the Industrial
Commission may order a change in the medical
or hospital service.
N.C.G.S. § 97-25 (2003) (emphasis added).
Here, the record is void of any evidence that the Commission
ever ordered plaintiff to participate in vocational rehabilitation.
Absent such evidence, plaintiff's withdrawal from participation
cannot serve as grounds for suspension of benefits pursuant to N.C.
Gen. Stat. § 97-25.
See Deskins v. Ithaca Industries, Inc., 131
N.C. App. 826, 832, 509 S.E.2d 232, 236 (1998) (“The language of
this statute is quite specific, and the bar to compensation does
not apply unless the employee 'refuses . . . to accept any . . .
rehabilitative procedure when ordered by the Commission.' There is
absolutely no evidence in the record that plaintiff refused any
rehabilitative procedure ordered by the Commission.”) (citation
omitted);
Maynor v. Sayles Biltmore Bleacheries, 116 N.C. App. 485,
488, 448 S.E.2d 382, 384 (1994) (“The record does not indicate that
defendant ever requested the Industrial Commission to order surgery
for plaintiff, or that the Industrial Commission made any such
order. Plaintiff could not disobey an order plaintiff never
received. Without any evidence of an order, defendant's argument
must fail.”).
Finally, we note that the Full Commission cites
Gupton v.
Builders Transport, 320 N.C. 38, 357 S.E.2d 674 (1987) for its
conclusion that “[p]laintiff is entitled to receive the greater ofbenefits under Sections 97-29, 97-30, or 97-31, and . . . he is
presumed to elect benefits under Section 97-31.” In
Gupton, the
Supreme Court held “'[w]here an employee can show that the physical
injury from which he is suffering causes appreciable employment
disability, the employee
is allowed to recover under which
provisions affords [
sic] him greater compensation.'”
Gupton, 320
N.C. at 42-43, 357 S.E.2d at 678 (emphasis added) (citation
omitted).
Gupton therefore did not create a presumption that the
employee will elect to receive benefits pursuant to the section
that provides greater compensation - only that the plaintiff has
the option of selecting between the applicable provisions.
Remanded for reconsideration.
(See footnote 1)
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
Footnote: 1