1. Workers' Compensation_Form 26 Agreement_medical documentation_insufficient
The Industrial Commission did not err in a workers' compensation action by invalidating
a Form 26 Agreement for lack of medical documentation where the only document submitted
that could be classified as a medical report was a one-paragraph note to plaintiff's chart.
Plaintiff was treated at an emergency room and two pain clinics; in addition to the emergency
room personnel, he saw three orthopedic surgeons, a neurosurgeon, a neurologist, and received
physical therapy. Whether or not plaintiff had copies of the records which he did not submit, the
fact remains that the necessary and relevant medical records were not submitted with the
Agreement.
2. Workers' Compensation_attorney fee_contingency_grounds for award_not
addressed
An award of attorney fees by the Industrial Commission in a workers' compensation case
was remanded where the award was simply the ordinary contingent fee, awarded pursuant to
N.C.G.S. § 97-90, and the Commission did not address whether grounds existed for the award of
additional attorney fees pursuant to plaintiff's motion under N.C.G.S. §§ 97-88 and 97-88.1.
WALDEN & WALDEN, by Daniel S. Walden, attorney for plaintiff-
appellee.
WOMBLE CARLYLE SANDRIDGE & RICE, by Philip J. Mohr and Craig
D. Cannon, attorneys for defendant-appellants.
TIMMONS-GOODSON, Judge.
Phil Cline Trucking, Inc. (“Cline Trucking”) and Key Risk
Management Services (“Key Risk”) (collectively “defendants”) appeal
an Opinion and Award by the North Carolina Industrial Commission
(“Full Commission”) invalidating a settlement agreement betweenBobby H. Clawson (“plaintiff”) and Key Risk for lack of medical
documentation. Plaintiff cross appeals, arguing that the agreement
should have been invalidated on grounds of fraud,
misrepresentation, and/or undue influence. For the reasons stated
herein, we affirm the Full Commission's Opinion and Award in part
and remand in part for determination of a remaining issue.
The factual and procedural history of this case is as follows:
On 3 January 1995, plaintiff was employed as a long-distance truck
driver for Cline Trucking, earning an average of $550 per week.
Plaintiff sustained a compensable injury while making a delivery in
Lawrence, Massachusetts, where plaintiff slipped on ice covering an
asphalt parking lot and fell, injuring his lower back, tailbone and
left foot. Shortly after plaintiff was injured, he and Cline
Trucking entered into an Agreement for Compensation for Disability
(a “Form 21 Agreement”). Under the terms of the Form 21 Agreement,
Cline Trucking agreed to pay plaintiff temporary total disability
(“TTD”) benefits in the amount of $347.50 per week beginning 13
January 1995, and continuing for as long as necessary. On 17 March
1995, Key Risk Management Services, insurance carrier for Cline
Trucking, notified plaintiff that his TTD benefits would be
terminated on 1 May 1995, the day that plaintiff was due to return
to work on a trial basis. Because plaintiff would be returning to
work in a different capacity and at lower wages than he earned at
the time of his injury, plaintiff was still entitled to
compensation for partial disability.
On 16 July 1995, plaintiff stopped working due to pain from
his injury. Key Risk reinstated plaintiff's TTD benefits, andplaintiff underwent physical therapy treatments for several months.
In October, plaintiff underwent a functional capacity evaluation to
determine if and in what capacity he would be able to work. In
November, plaintiff was referred to a pain management clinic, and
participated in a four-week inpatient pain management program in
March 1996.
In March 1996, Key Risk enlisted CorVel Corporation to provide
vocational rehabilitation to assist plaintiff in finding a job.
After one year, plaintiff was still unable to obtain employment.
CorVel ceased providing vocational rehabilitation services for
plaintiff on 24 February 1997. At that time, CorVel vocation
rehabilitation expert Lou Drumm sent plaintiff's case file to legal
counsel for Key Risk. On 3 March 1997, Key Risk stopped paying
plaintiff TTD benefits but failed to file an Application to
Terminate or Suspend Payment of Compensation (“Form 24”). Key Risk
claims adjuster Janice Sherrell testified that the payments ceased
due to a computer error.
On 23 October 1997, plaintiff filed a request for a hearing (a
“Form 33 request”) with the Full Commission to address the
“termination of temporary total benefits and disagreement over
degree of disability.” Sherrell later testified that she did not
realize that plaintiff was no longer receiving TTD benefits until
she received notice of the Form 33 request for a hearing. When
Sherrell received notice of the request, she “was instructed by
superiors to send it on to the defense counsel for representation,
and not to issue a back check.” Sherrell did not reinstate
plaintiff's TTD benefits. On 1 November 1999, plaintiff and Key Risk filed a
Supplemental Agreement as to Payment of Compensation (“a Form 26
Agreement”) which states that plaintiff has a 10% permanent partial
impairment of his back. The Form 26 Agreement further states that
Key Risk agreed to pay plaintiff permanent partial disability
compensation in the amount of $347.50 for 30 weeks as a lump sum of
$10,425. The Form 26 Agreement included a one-paragraph note to
plaintiff's medical file drafted by a doctor who treated plaintiff
at a neurology clinic, but did not include other documentation
ordinarily submitted with a Form 26 Agreement, such as medical
records, the insurance rating, the return-to-work report or other
documentation showing why the employee was no longer entitled to
TTD benefits.
On 3 February 2000, a deputy commissioner approved the Form 26
Agreement. On 7 January 2001, plaintiff filed a Motion in the Cause
to Set Aside the Form 26 Agreement. Plaintiff argued, in pertinent
part, that the Form 26 Agreement was not fair and just to plaintiff
for the following reason:
defendant did not supply the Commission with,
and the Commission did not require or have the
extensive medical records, rehabilitation
records, and vocational records and reports
generated in the five year period from 3
January 1995, the date of plaintiff's
accident, to 3 February 2000, the date the
Commission approved the Form 26.
The motion was called for hearing before another deputy
commissioner on 13 March 2002, and concluded on 22 March 2002. On
8 August 2002, the deputy commissioner issued an Opinion and Award
declaring the Form 26 Agreement “null and void due to defendants'
violation of the provisions of G.S. 97-82.” The deputycommissioner further ruled that plaintiff had an alternate basis
for relief in that Key Risk's “unilateral termination of
plaintiff's disability benefits” was conduct constituting “fraud
and/or misrepresentation on the Commission,” and “undue influence
over plaintiff,” and therefore “justifies setting aside the Form 26
Agreement.”
Defendants appealed the deputy commissioner's Opinion and
Award to the Full Commission. The Full Commission heard the appeal
on 27 January 2003, and issued an Opinion and Award on 14 April
2003. The Full Commission found the following pertinent facts:
(1) The only document or record attached to the Form 26 Agreement
which could be classified as a medical report was a one-paragraph
note to plaintiff's medical chart from a neurology clinic; (2) the
note mentions that plaintiff was a patient at the MidAtlantic
Center for Pain, but no records from the MidAtlantic Center were
submitted with the Form 26 Agreement; (3) the Form 26 Agreement
indicates that Key Risk paid $53,187.48 in medical costs,
rehabilitation services, and other miscellaneous costs related to
plaintiff's injury, but no medical records related to these costs
were submitted with the Form 26 Agreement; (4) the parties had
approximately 140 pages of medical records pertaining to
plaintiff's injury and approximately 127 pages of rehabilitation
reports that were not submitted with the Form 26 Agreement. The
Full Commission ultimately found that the deputy commissioner “did
not have all relevant records necessary to properly determine the
approval of the Form 26 Agreement,” and therefore the Agreement
“was not fair and just to the employee.” The Full Commission concluded that “[t]he Form 26 agreement in
this claim, approved on February 3, 2000, should be declared null
and void because the Commission did not have all relevant
information within the possession of the parties.” The Full
Commission further found that “[b]ased on the circumstances of the
evidence in this case, the Commission does not find that either
party's conduct arises to the level of fraud. Similarly, the
evidence does not support a conclusion that plaintiff entered into
the Form 26 Agreement under duress.” The Full Commission entered
the following award:
1. Defendants shall pay plaintiff total
disability compensation benefits at the
rate of $347.50 per week for the period
beginning January 6, 1995 and continuing
until plaintiff returns to work or
further order of the Commission.
Defendants are entitled to a credit for
benefits paid during this period, including the payment for the impairment rating pursuant
to the voided Form 26 Agreement. Defendants are entitled to a
credit for the income received by plaintiff during his four
unsuccessful attempts to return to work. To the extent that these
benefits have accrued, they shall be paid in a lump sum, subject to
attorney's fees awarded below. Other benefits accrue weekly, and
absent other order from the Commission, shall be paid weekly,
subject to the attorney's fees awarded below.
2. Defendants shall pay a 10% late payment
penalty on all past unpaid compensation
due plaintiff after April 22, 2001 until
timely paid.
3. Defendants shall pay for all medical
expenses incurred by plaintiff or to be
incurred by plaintiff as a result of his
back injury. Defendants shall pay for
any treatment by Dr. Poehling for the
period after January 2001.
4. A reasonable attorney's fee in the amount
of one third of all unpaid accrued
compensation awarded herein to plaintiff
is approved for plaintiff's present
counsel. This fee shall be withheld from
the recovery of plaintiff and paiddirectly to counsel for plaintiff. A
reasonable attorney's fee of one-fourth
of ongoing future compensation due
plaintiff is approved for plaintiff's
counsel, and every fourth check shall be
paid directly to counsel for plaintiff.
5. Defendants shall pay all costs, including
the expert witness fees previously
awarded.
It is from this Opinion and Award that plaintiff and defendants
appeal.
As an initial matter, we note that defendants' brief does not
contain an argument supporting Assignment of Error #9. The omitted
assignment of error is deemed abandoned pursuant to N.C.R. App. P.
28(b)(6) (2004). We therefore limit our review to the assignments
of error properly addressed in plaintiff's and defendants' briefs.
The issues presented on appeal are whether the Full Commission
erred by (I) invalidating the Form 26 Agreement for lack of medical
documentation; (II) ruling in plaintiff's favor when it was
plaintiff's responsibility to submit the proper documentation;
(III) failing to address one of the issues for determination at the
hearing; (IV) failing to invalidate the Form 26 Agreement on
grounds of fraud, misrepresentation, and/or undue influence; and
(V) awarding attorney's fees of one-fourth of plaintiff's
compensation.
[1] Defendants first argue that the Full Commission erred by
invalidating the Form 26 Agreement for lack of medical
documentation. We disagree. Our standard of review is “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). “'[T]he findings of fact of the Industrial
Commission are conclusive on appeal when supported by competent
evidence, even though there be evidence that would support findings
to the contrary.'” Adams v. AVX Corp., 349 N.C. 676, 681, 509
S.E.2d 411, 414 (1998) (quoting Jones v. Desk Co., 264 N.C. 401,
141 S.E.2d 632 (1965)).
“If the employer and the injured employee or his dependents
reach an agreement in regard to compensation under [the Workers'
Compensation Act], they may enter into a memorandum of the
agreement in the form prescribed by the Commission.” N.C. Gen.
Stat. § 97-82(a) (2003). “The memorandum of agreement, accompanied
by a full and complete medical report, shall be filed with and
approved by the Commission.” Id. (emphasis added). The North
Carolina Industrial Commission Workers' Compensation Rules provide
that “[n]o agreement for permanent disability will be approved
until all relevant medical, vocational and nursing rehabilitation
reports known to exist in the case have been filed with the
Industrial Commission.” Workers' Comp. R. of N.C. Indus. Comm'n
501(3) (emphasis added). While the Workers' Compensation Rules do
not define the term “relevant medical reports,” “reading 501(3) in
light of N.C. Gen. Stat. § 97-82(a) leads us to conclude that
relevant records include the full and complete medical recordsrelated to the work-related injury.” Atkins v. Kelly Springfield
Tire Co., 154 N.C. App. 512, 514, 571 S.E.2d 865, 866 (2002).
There is sufficient evidence that the parties failed to submit
a full and complete medical report with the Form 26 Agreement to
support the Full Commission's findings of fact and conclusions of
law. The record on appeal demonstrates that plaintiff was treated
by numerous doctors for his back injury. Plaintiff testified that
he sought treatment at an emergency room immediately after his
fall, that upon his return to North Carolina he was treated by
three orthopaedic surgeons, a neurosurgeon and a neurologist.
Plaintiff sought treatment at two pain clinics and received
physical therapy treatment. The record further demonstrates that
the parties failed to submit any documentation of plaintiff's
extensive medical treatment as required by Rule 501(3).
Accordingly, we affirm the Full Commission's ruling.
Defendants next argue that the Full Commission erred by ruling
in plaintiff's favor, because plaintiff had the responsibility to
submit the proper documentation. We disagree.
“After the employer or carrier/administrator has received a
memorandum of agreement which has been signed by the employee and
employee's attorney of record, if any, it shall have 20 days within
which to submit the memorandum of agreement to the Industrial
Commission for review and approval . . . .” Workers' Comp. R. of
N.C. Indus. Comm'n 501(7). Thus, it is the responsibility of the
employer or its insurance carrier to submit the Form 26 Agreement
and all attendant medical documentation to the Full Commission. In the present case, defendants argue that plaintiff
volunteered to submit the Form 26 Agreement to the Full Commission,
and that plaintiff had copies of all relevant medical records but
did not submit them with the Form 26 Agreement. Therefore,
defendants argue, because plaintiff failed to submit the medical
records with the Form 26 Agreement, plaintiff had no right to
appeal the Form 26 Agreement based on the lack of appropriate
medical documentation.
Without regard to which party submitted the Form 26 Agreement
to the Full Commission, the fact remains that the necessary and
relevant medical records were not submitted with the Agreement. A
full and complete medical report is essential for the deputy
commissioner to accurately assess the proposed settlement
agreement. Because the parties failed to file a full and complete
medical report, we conclude that the Full Commission properly
invalidated the Form 26 Agreement.
Defendants next argue that, although the Form 26 Agreement was
set aside, the Full Commission erred by failing to address one of
the issues for determination at the hearing. We disagree.
“All questions arising under [the Workers' Compensation Act]
if not settled by agreements of the parties interested therein,
with the approval of the Commission, shall be determined by the
Commission, except as otherwise herein provided.” N.C. Gen. Stat.
§ 97-91 (2003).
In the underlying Opinion and Award, the Full Commission
indicated the following question as an issue for determination in
the alternative to the issues regarding the Form 26 Agreement: [H]as plaintiff undergone a G.S. §97-47 change
of condition since 3 February 2000 when the
Form 26 compensation agreement was approved?
Defendant correctly points out that the Full Commission failed to
address this issue in its findings of fact and conclusions of law.
However, since the Full Commission determined the matter based on
its resolution of the Form 26 issues, it did not need to address
this issue. As we have reached the same conclusion, we need not
address this issue. This assignment of error is overruled.
Having addressed all of the issues presented by defendant on
appeal, we turn to the issues presented by plaintiff on cross-
appeal. Plaintiff first argues that the Full Commission erred by
failing to invalidate the Form 26 Agreement on grounds of fraud,
misrepresentation, and/or undue influence.
As discussed supra, this Court is bound by the Full
Commission's findings of fact “if supported by competent evidence
even though there is evidence to support a contrary finding.”
Roberts v. Century Contrs., Inc., 162 N.C. App. 688, 691, 592
S.E.2d 215, 218 (2004). “[T]his Court is not at liberty to reweigh
the evidence and to set aside the findings . . . simply because
other . . . conclusions might have been reached.” Id. (citations
and quotations omitted).
The Full Commission found that “[b]ased on the circumstances
of the evidence in this case, the Commission does not find that
either party's conduct arises to the level of fraud. Similarly,
the evidence does not support a conclusion that plaintiff entered
into the Form 26 Agreement under duress.” The Full Commission's
decision to void the Form 26 Agreement is supported by competentevidence, discussed supra, and, therefore, is conclusive on appeal.
Accordingly, we decline to reconsider the issue of fraud,
misrepresentation or undue influence, or set aside the findings of
the Full Commission on the possibility that a different conclusion
might have been reached.
[2] Plaintiff also argues that the Full Commission erred by
“reversing the deputy's award of attorney's fees against defendant
under G.S. 97-88.1,” and failing to address plaintiff's 13 January
2003 motion for attorney's fees under N.C. Gen. Stat. §§ 97-88 and
97-88.1.
The standard of review for an award of attorneys' fees by the
Full Commission is abuse of discretion. Childress v. Trion, Inc.,
125 N.C. App. 588, 590, 481 S.E.2d 697, 698, rev. denied, 346 N.C.
276, 487 S.E.2d 541 (1997) (citing Taylor v. J.P. Stevens Co., 307
N.C. 392, 298 S.E.2d 681 (1983)). The General Statutes provide for
attorneys' fees in workers' compensation cases as follows:
If the Industrial Commission at a hearing on
review or any court before which any
proceedings are brought on appeal under this
Article, shall find that such hearing or
proceedings were brought by the insurer and
the Commission or court by its decision orders
the insurer to make, or to continue payments
of benefits, including compensation for
medical expenses, to the injured employee, the
Commission or court may further order that the
cost to the injured employee of such hearing
or proceedings including therein reasonable
attorney's fee to be determined by the
Commission shall be paid by the insurer as a
part of the bill of costs.
N.C. Gen. Stat. § 97-88 (2003).
If the Industrial Commission shall determine
that any hearing has been brought, prosecuted,
or defended without reasonable ground, it may
assess the whole cost of the proceedingsincluding reasonable fees for defendant's
attorney or plaintiff's attorney upon the
party who has brought or defended them.
N.C. Gen. Stat. § 97-88.1 (2003).
In the present case, the deputy commissioner awarded plaintiff
attorney's fees as follows:
A reasonable attorney's fee in the amount of
one third percent of all accrued compensation
awarded herein to plaintiff is approved for
plaintiff's present counsel. . . . A
reasonable attorney's fee of one third of
ongoing future compensation due plaintiff is
approved for plaintiff's counsel, and shall be
paid as a part of the cost of this action.
Defendants' counsel filed a Notice of Appeal of the Opinion and
Award on 12 August 2002. On 13 January 2003, plaintiff filed a
Motion for Award of Attorney's Fees as follows:
Plaintiff moves the Commission panel to order
that the cost to plaintiff of this proceeding,
including reasonable attorney's fees, be paid
by defendant as a part of the bill of costs.
Plaintiff seeks to be awarded an attorney's
fee of 25 percent of all additional past and
future benefits awarded plaintiff, to be paid
in addition to the $347.50 weekly disability
benefit due plaintiff.
The Full Commission conducted a hearing on 27 January 2003, and
issued an Opinion and Award with regard to attorney's fees as
follows:
A reasonable attorney's fee in the amount of
one third of all unpaid accrued compensation
awarded herein to plaintiff is approved for
plaintiff's present counsel. . . . A
reasonable attorney's fee of one-fourth of
ongoing future compensation due plaintiff is
approved for plaintiff's counsel, and every
fourth check shall be paid directly to counsel
for plaintiff.
The Full Commission's Opinion and Award did not mention N.C.
Gen. Stat. §§ 97-88 or 97-88.1 or plaintiff's motion filed 13January 2003. Thus, we conclude that the attorney's fee award
above is simply the ordinary contingent fee, awarded pursuant to
N.C. Gen. Stat. § 97-90, and that the Full Commission has not
addressed whether grounds exist for an award of additional
attorney's fees pursuant to plaintiff's motion. Plaintiff
correctly notes that this Court has ruled it is error for the Full
Commission to fail to address such a motion. Cialino v. Wal-Mart
Stores, 156 N.C. App. 463, 577 S.E.2d 345 (2003). Thus, we remand
this case for the Full Commission to address plaintiff's motion.
AFFIRMED in part, REMANDED in part.
Chief Judge MARTIN and Judge HUDSON concur.
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