FREDERICK C. CLARK,
Plaintiff-Employee
v
.
North Carolina
Industrial Commission
I.C. File No. 475939
CITY OF WINSTON-SALEM,
Employer, and
SELF-INSURED,
Defendant
J. Kevin Morton, for plaintiff-appellee.
Wilson & Iseman, L.L.P., by S. Ranchor Harris, III, for
defendant-appellant.
CALABRIA, Judge.
The City of Winston-Salem (“Winston-Salem”) appeals an opinion
and award issued by the North Carolina Industrial Commission (the
“Commission”), asserting that the Commission erred in awarding
Frederick C. Clark (“plaintiff”) compensation benefits under the
Workers' Compensation Act. We affirm.
The Commission made uncontested findings of fact detailing,
inter alia, the following. In September of 1979, plaintiffcommenced employment with Winston-Salem as a sanitation engineer.
During his employment, plaintiff injured his back on two different
occasions. Winston-Salem accepted compensability for plaintiff's
second injury by filing a Form 21 Agreement for Compensation for
Disability. The Commission approved the Form 21, which provided
(1) plaintiff sustained “an injury by accident arising out of and
in the course of said employment” and (2) temporary total
disability compensation in the amount of $309.99 per week “and
continuing for necessary weeks.”
After treatment, plaintiff's treating physician released him
to return to work with the following permanent restrictions: no
bending, crawling, twisting, no overhead work, no lifting greater
than ten pounds, limited standing and sitting without breaks for
one hour, and no driving. Winston-Salem subsequently selected
plaintiff to participate in a new “Employee Training and Placement
Program” (“Job Link program”). Winston-Salem informed plaintiff
that if he agreed to participate in the program, he would receive
his full salary and benefits. On the other hand, if he declined to
participate, he would be deemed to be refusing suitable employment
and steps would be taken to terminate his disability compensation.
In response, plaintiff requested a job description, that the
first meeting with the vocational rehabilitation professional be
scheduled at his attorney's office, and that clarification be sent
as to whether Winston-Salem's program constituted a job offer or
vocational rehabilitation. Winston-Salem responded, characterizing
the program as an offer of a light duty job. When plaintiff didnot enter the program, Winston-Salem filed a Form 24 Application to
Terminate Benefits with the Commission. Special Deputy
Commissioner James C. Gillen found that Winston-Salem's program was
vocational rehabilitation, not competitive employment, and denied
Winston-Salem's application to terminate benefits. Nonetheless,
the order found plaintiff was “obligated to comply reasonably with
vocational rehabilitation provided by” Winston-Salem.
Plaintiff started the Job Link program after Winston-Salem
again demanded participation for purposes of vocational
rehabilitation in accordance with the deputy commissioner's order
and received his full salary and benefits. In the program,
plaintiff had no job duties and spent his time exclusively
searching for employment. Plaintiff's job skills were never
assessed, and he was not assigned a rehabilitation professional nor
given the North Carolina Industrial Commission Rules for
Utilization of Rehabilitation Professionals in Workers'
Compensation Claims. Plaintiff was never given appropriate job
skills retraining to help him secure employment, job referrals by
Job Link personnel, or a personal development plan. Plaintiff had
minimal daily contact with the supervisor of the Job Link program
but such contact consisted mostly of the supervisor asking, “Mr.
Clark, are you going to find a job today?” No periodic reports on
referrals and services provided to plaintiff were kept. Most of
plaintiff's time at the Job Link program was spent sitting in the
break room with other men. While plaintiff received aid in
developing a resume and was referred to Employment SecurityCommission personnel, the Employment Security Commission routinely
told plaintiff that they had no positions within plaintiff's work
restrictions and did not understand why he continued to seek
positions through them.
Plaintiff's supervisor eventually recommended his termination
from the Job Link program. Her recommendation was based on the
following: (1) plaintiff was frequently tardy to the program, (2)
he wrote down the time that he was supposed to arrive to the
program rather than when he actually arrived despite warnings, (3)
he falsified two documents concerning interviews with potential
employers, and (4) he failed to follow up with at least three
Employment Security Commission recommendations. Winston-Salem
terminated plaintiff from the Job Link program on 22 August 2000
and did not reinstate plaintiff's temporary total disability
compensation.
Thereafter, plaintiff's counsel sent a Form 33 to the
Commission and requested that the matter be assigned for hearing.
Deputy Commissioner Wanda Blanche Taylor heard the matter on 13
March 2002. On 23 September 2002, Deputy Commissioner Taylor
issued an opinion and award in favor of plaintiff. Winston-Salem
appealed the opinion and award, and the Full Commission also found
in favor of plaintiff, concluding that plaintiff was not placed in
a qualifying vocational rehabilitation program and was not offered
suitable employment. Accordingly, the Commission found that
Winston-Salem could not suspend compensation benefits for any
failure to cooperate with the Job Link program. The Commissionawarded the plaintiff “total disability compensation” from the date
of his termination from the Job Link program, a ten percent (10%)
late penalty on the past due total disability compensation, and
payment of all medical expenses resulting from his compensable
injury.
I. Award of Total Disability
Winston-Salem asserts on appeal that the Commission erred in
concluding as a matter of law that plaintiff is entitled to
permanent total disability. Winston-Salem contends that permanent
total disability should not have been addressed because it was not
an issue presented to the Commission for decision. Because the
Commission did not award permanent total disability in its opinion
and award, we find Winston-Salem's assertion to be without merit.
In its order, the Commission concluded “[p]laintiff is
entitled to total disability compensation from August 22, 2000 and
continuing until further Order of the Commission.” The Commission
cited N.C. Gen. Stat. § 97-29, which covers both permanent and
temporary total disability, as authority for its conclusion.
Nothing in this conclusion or in the order by the Commission
indicates an award of permanent total disability. To the contrary,
in conclusion of law number six, the Commission determined a ten
percent late penalty on disability compensation was owed by
Winston-Salem for its unjustifiable termination of “plaintiff's
temporary total disability compensation.” Moreover, in conclusion
of law number two the Commission said: “[p]laintiff has an ongoing
presumption of disability based upon the Form 21 Agreement approvedby the Commission on October 25, 1994.” Neither party disputes the
Form 21 agreement awarded temporary total disability as opposed to
permanent total disability. We, therefore, hold the order at issue
entitled plaintiff to continued temporary total disability
compensation. This assignment of error is overruled.
II. Award of Ten Percent Late Penalty
Winston-Salem next argues that the Commission “abused [its]
discretion in awarding a ten percent late penalty based on past
total disability.” Specifically, Winston-Salem argues that the
Commission “disregard[ed] evidence of the plaintiff's termination
and unjustifiable refusal to participate in vocational
rehabilitation” in awarding the ten percent late penalty. We
disagree.
Winston-Salem failed to assign error to any findings of fact
made by the Commission. Accordingly, the Commission's findings of
fact are “conclusively established on appeal[,]” see Johnson v.
Herbie's Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118, disc.
rev. denied, 357 N.C. 460, 585 S.E.2d 760 (2003), and our review is
limited to 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). Moreover, Winston-Salem's
emphatic and repeated arguments concerning the Commission's failure
to defer to or adopt the deputy commissioner's findings cannot be
sustained. See Keel v. H & V Inc., 107 N.C. App. 536, 542, 421
S.E.2d 362, 367 (1992) (internal citations omitted) (observing
“[t]he deputy commissioner's findings of fact are not conclusive;only the Full Commission's findings of fact are conclusive. The
Commission may 'weigh the evidence [presented to the deputy
commissioner] and make its own determination as to the weight and
credibility of the evidence.' The Commission may strike the deputy
commissioner's findings of fact even if no exception was taken to
the findings.”).
North Carolina General Statutes § 97-18(g) governs penalties
for late compensation payments and provides, in pertinent part, as
follows:
[i]f any installment of compensation is not
paid within 14 days after it becomes due,
there shall be added to such unpaid
installment an amount equal to ten per centum
(10%) thereof . . . unless such nonpayment is
excused by the Commission after a showing by
the employer that owing to conditions over
which he had no control such installment could
not be paid within the period prescribed for
the payment.
The statute imposes a mandatory requirement. Bostick v.
Kinston-Neuse Corp., 145 N.C. App. 102, 110, 549 S.E.2d 558, 563
(2001). While the Commission is empowered under N.C. Gen. Stat. §
97-18(g) to excuse nonpayment, Winston-Salem made no showing “that
owing to conditions over which [it] had no control such installment
could not be paid within the period prescribed for the payment.”
Id. Indeed, nothing in the order, record, or Winston-Salem's
arguments on appeal indicates an inability on the part of Winston-
Salem to pay the compensation installments as they came due.
Accordingly, this assignment of error is overruled.
III. Rules for Utilization of Rehabilitation Professionals Lastly, Winston-Salem argues that the Commission erred by
concluding as a matter of law (1) that the vocational
rehabilitation efforts offered by Job Link did not comply with the
North Carolina Industrial Commission Rules for Utilization of
Rehabilitation Professionals in workers' compensation claims and
(2) that Winston-Salem has shown that plaintiff failed to comply
with reasonable vocational efforts. These arguments are rejected.
Conclusion of law number four states:
The vocational rehabilitation efforts offered
by Job Link did not comply with the North
Carolina Industrial Commission Rules for
Utilization of Rehabilitation Professionals in
Workers' Compensation Claims and defendant has
not shown that plaintiff failed to comply with
reasonable vocational rehabilitation efforts.
In support of this conclusion of law, the Commission made the
following uncontested finding of fact:
27. The vocational rehabilitation which
plaintiff received did not comply with the
North Carolina Industrial Commission Rules for
Utilization of Rehabilitation Professionals in
that no individualized plan was completed; a
rehabilitation professional was not assigned;
plaintiff was never given the Rehabilitation
Rules; a rehabilitation professional did not
meet with the plaintiff at his attorney's
office for the first meeting; a rehabilitation
professional did not coordinate plaintiff's
activities with plaintiff's counsel; no
periodic reports on referrals and services
provided plaintiff was kept; plaintiff was not
referred only toward opportunities for
suitable employment which had been evaluated
against his restrictions; plaintiff was not
provided job descriptions; and a qualified
professional did not coordinate job search
efforts for plaintiff.
For purposes of our review, finding of fact twenty-seven is
conclusively established, and it adequately supports conclusion of
law number four. This assignment of error is overruled.
Affirmed.
Judges WYNN and LEVINSON concur.
Report per Rule 30(e).
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