Appeal by defendants from opinion and award entered 2 December
2003 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 17 February 2005.
Faith Herndon for plaintiff-appellee.
YOUNG, MOORE & HENDERSON, P.A., by Joe E. Austin, Jr., and
Jennifer T. Gottsegen, for defendants-appellants.
TIMMONS-GOODSON, Judge.
The Kroger Company (“Kroger”) and Continental Casualty
Insurance Company (“Continental”) (collectively, “defendants”)
appeal an opinion and award of the North Carolina Industrial
Commission awarding Vonda Kay Brown (“plaintiff”) total and partial
disability payments, medical treatment compensation, and a ten
percent increase in compensation. For the reasons discussed
herein, we affirm in part and remand in part.
The facts and procedural history pertinent to the instant
appeal are as follows: On 9 June 2001, plaintiff was employed by
Kroger as a deli and bakery manager. As plaintiff was walking down
a hallway near the manager's office, she tripped on an extensioncord and fell to the floor, landing on her right side. As a result
of her fall, plaintiff sustained injuries to her right shoulder,
knee, and elbow, and she also sustained injuries to her sacrum and
lumbar area.
Although plaintiff refused medical attention on the day of her
fall, she sought medical attention from Concentra Medical Centers
on 11 June 2001. Plaintiff returned to work on 21 June 2001, and
she continued to work at diminished wages through 18 July 2001.
After returning to work, plaintiff received medical treatment from
Dr. Lyman Smith (“Dr. Smith”), an orthopedic surgeon. Dr. Smith's
treatment of plaintiff focused on the on-going right knee and
shoulder problems plaintiff was experiencing. Dr. Smith determined
that plaintiff's shoulder problems were a result of bursitis caused
by the fall on 9 June 2001, and that plaintiff's knee problems were
caused by an arthritic condition aggravated by the fall. Dr. Smith
recommended that plaintiff receive physical therapy for her
injuries, and, on 18 July 2001, Dr. Smith provided plaintiff with
a note excusing her from work until 22 August 2001. On 22 August
2001, Dr. Smith ordered plaintiff to receive magnetic resonance
imaging (“MRI”) on her right knee. Dr. Smith anticipated that
plaintiff could return to work if the MRI results were “normal.”
On 28 August 2001, plaintiff fell down stairs at her home when
her right leg “gave out from under” her. Following plaintiff's 28
August 2001 fall, plaintiff sought treatment from Dr. Jeffrey Kobs
(“Dr. Kobs”), an orthopedic surgeon. As a result of the fall,
plaintiff sustained injuries to her right ankle and her left knee. Due to these injuries, plaintiff was unable to work until 24
January 2002.
In early February 2002, plaintiff returned to work at Kroger.
Plaintiff subsequently took vacation, and, on 12 February 2002,
plaintiff sought treatment from Dr. Suzanne Zorn (“Dr. Zorn”) of
the Arthritis Rheumatology Osteoporosis Center. Dr. Zorn
recommended that plaintiff refrain from working for approximately
one month.
Following her fall on 9 June 2001, plaintiff filed a complaint
with the North Carolina Department of Labor, Division of
Occupational Safety and Health (“NCDL/DOSH”). After investigating
the circumstances leading to plaintiff's 9 June 2001 fall,
NCDL/DOSH cited Kroger for four “nonserious” occupational safety
and health code violations. Defendants denied plaintiff's
compensation claim, and on 14 February 2002, North Carolina
Industrial Commission Deputy Commissioner Edward Garner, Jr.
(“Deputy Commissioner Garner”), held an evidentiary hearing on the
matter. Following the hearing, the parties deposed Dr. Smith and
introduced stipulations and other records into evidence. On 23
October 2002, Deputy Commissioner Garner filed an opinion and award
concluding that plaintiff sustained injuries as a result of the 9
June 2001 fall, which Deputy Commissioner Garner concluded arose
out of and in the course of plaintiff's employment with Kroger.
However, Deputy Commissioner Garner denied plaintiff's claim for
compensation for those injuries associated with the 28 August 2001
fall, “reject[ing]” plaintiff's testimony regarding the fall as“not being credible.” After refusing to find “that plaintiff's
injury was caused by the willful failure of [Kroger] to comply with
a statutory requirement[,]” Deputy Commissioner Garner also denied
plaintiff's claim for a ten percent increase in compensation due to
Kroger's alleged statutory violations. Deputy Commissioner Garner
thereafter ordered defendants to pay plaintiff total and partial
disability payments as well as compensation for her medical
treatment, with the amount of compensation related to plaintiff's
right knee injury deferred until plaintiff reached maximum medical
improvement. Deputy Commissioner Garner also ordered defendants to
pay the costs associated with the deposition of Jeanine Alston
(“Alston”), an employee of NCDL/DOSH.
Both plaintiff and defendants appealed Deputy Commissioner
Garner's award to the Full Commission. Following review of the
matter on 5 May 2003, the Full Commission determined that it need
not reconsider evidence, receive further evidence, or rehear
argument from the parties. However, the Full Commission did
receive evidence regarding modifications of the compensability of
plaintiff's 28 August 2001 fall. In an opinion and award filed 2
December 2003, the Full Commission concluded that plaintiff
sustained injuries from the 9 June 2001 fall, which the Full
Commission concluded arose out of and in the course of plaintiff's
employment with Kroger. The Full Commission also concluded that
plaintiff sustained injuries as a result of her 28 August 2001
fall, which the Full Commission concluded was “the direct and
natural result of plaintiff's June 9, 2001 injury by accident.” The Full Commission further concluded that plaintiff was entitled
to a ten percent increase in compensation due to the “willful
failure of [Kroger] to comply with a statutory requirement
reprimand by OSHA.” The Full Commission reserved the issue of
plaintiff's entitlement to future benefits related to her wage-
earning capacity after 14 February 2002, concluding that “this
evidence was not presented before this panel.” The Full Commission
thereafter awarded plaintiff temporary and partial disability
payments, medical treatment compensation, and a ten percent
increase in compensation. Defendants appeal.
_______________________________
We note initially that defendants' brief contains arguments
supporting only eleven of the original sixteen assignments of error
on appeal. Pursuant to N.C.R. App. P. 28(b)(6) (2004), the omitted
assignments of error are deemed abandoned. Therefore, we limit our
present review to those issues properly preserved by defendants for
appeal.
The issues on appeal are whether the Full Commission erred by:
(I) increasing the amount of plaintiff's compensation by ten
percent; (II) failing to rule on the propriety of the cost of a
witness deposition; (III) reserving the issue of plaintiff's
entitlement to future benefits; (IV) concluding that plaintiff's 28
August 2001 fall was related to her prior accident; and (V) failing
to define the time limit of plaintiff's award.
[1] Defendants first argue that the Full Commission erred by
increasing the amount of plaintiff's compensation by ten percentpursuant to N.C. Gen. Stat. § 97-12. Defendants assert that there
was no evidence that Kroger violated any statute warranting the
increased award, and that N.C. Gen. Stat. § 97-12 is
unconstitutionally vague as applied to the facts of this case. We
disagree.
N.C. Gen. Stat. § 97-12 (2003) provides as follows:
When the injury or death is caused by the
willful failure of the employer to comply with
any statutory requirement or any lawful order
of the Commission, compensation shall be
increased ten percent (10%). . . . The burden
of proof shall be upon him who claims an
exemption or forfeiture under this section.
In the instant case, defendants contend that there was no
evidence that Kroger failed to comply with any statutory
requirement because “no statute prohibits an employer from
stretching an extension cord across a hallway.” However, as
discussed above, following its investigation of Kroger, NCDL/DOSH
cited Kroger for four “nonserious” violations of federal
occupational safety and health codes. Specifically, NCDL/DOSH
cited Kroger for violation of 29 C.F.R. 1910.22, which provides as
follows:
This section applies to all permanent places
of employment, except where domestic, mining,
or agricultural work only is performed.
Measures for the control of toxic materials
are considered to be outside the scope of this
section.
. . . .
(b) Aisles and passageways.
(1) Where mechanical handling equipment is
used, sufficient safe clearances shall be
allowed for aisles, at loading docks, throughdoorways and wherever turns or passage must be
made. Aisles and passageways shall be kept
clear and in good repairs, with no obstruction
across or in aisles that could create a
hazard.
29 C.F.R. 1910.22 (2003). In its citation of Kroger, NCDL/DOSH
noted the presence of a “flexible cord extending across the
aisle/passageway [which] created a tripping hazard for employees
working in office.”
The North Carolina Occupational Safety and Health Act provides
that “[a]ll occupational safety and health standards promulgated
under the federal act . . . shall be adopted as the rules of the
Commissioner of this State unless the Commissioner decides to adopt
an alternative State rule as effective as the federal requirement
and providing safe and healthful employment in places of employment
. . . .” N.C. Gen. Stat. § 95-131(a) (2003);
see N.C. Gen. Stat.
§ 95-129(2) (2003) (“Each employer shall comply with occupational
safety and health standards or regulations promulgated pursuant to
this Article[.]”). We conclude that, by virtue of N.C. Gen. Stat.
§ 95-131(a), the requirements of 29 C.F.R. 1910.22(b)(1) are a
“statutory requirement” that brings plaintiff's injury and Kroger's
subsequent citation within the scope of N.C. Gen. Stat. § 97-12.
See Prevette v. Clark Equipment Co., 62 N.C. App. 272, 275, 302
S.E.2d 639, 641 (1983) (“By virtue of G.S. 95-129(2) the [federal]
prohibition of employees riding on machinery such as the forklift
involved here is a 'statutory requirement' so as to bring this
employee's death within the purview of G.S. 97-12.” (footnote
omitted)). Therefore, if Kroger's action in violating 29 C.F.R.1910.22(b)(1) was willful, plaintiff is entitled to a ten percent
increase in compensation.
An act is considered willful “when there exists 'a deliberate
purpose not to discharge some duty necessary to the safety of the
person or property of another,' a duty assumed by contract or
imposed by law.”
Beck v. Carolina Power & Light Co., 57 N.C. App.
373, 383-84, 291 S.E.2d 897, 903 (quoting
Brewer v. Harris, 279
N.C. 288, 297, 182 S.E.2d 345, 350 (1971)),
aff'd per curium,
307
N.C. 267, 297 S.E.2d 397 (1982). In the instant case, defendants
do not challenge the intent or purpose of Kroger in stretching the
extension cord across the hallway. Instead, defendants contend
that Kroger did not willfully violate 29 C.F.R. 1910.22(b)(1)
because the statute does not “expressly prohibit stretching an
extension cord across a hallway.” In a similar contention,
defendants assert that N.C. Gen. Stat. § 97-12 is
unconstitutionally vague as applied to the facts of this case, in
that the statute fails to warn or notify employers that stretching
an extension cord across a hallway may result in a ten percent
increase in compensation. However, defendants cite no authority
for the contention that a violated statute must expressly prohibit
the precise action or inaction by the employer, and we decline to
create such a broad exception to N.C. Gen. Stat. § 97-12.
“Statutes and ordinances must be sufficiently precise; a
'statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application violates thefirst essential of due process of law.'”
Fantasy World, Inc. v.
Greensboro Bd. of Adjustment, 128 N.C. App. 703, 708, 496 S.E.2d
825, 828 (quoting
Connally v. General Construction Co., 269 U.S.
385, 391, 70 L. Ed. 322, 328 (1926)),
disc. review denied and
appeal dismissed, 348 N.C. 496, 510 S.E.2d 382 (1998).
“Ultimately, notice is the most important criteria; a statute or
ordinance will be found to violate due process if it fails to give
adequate notice to parties which might be affected by its
application.”
Fantasy World, 128 N.C. App. at 708, 496 S.E.2d at
828 (citing
Smith v. Goguen, 415 U.S. 566, 39 L. Ed. 2d 605
(1974)).
In the instant case, as detailed above, N.C. Gen. Stat. § 97-
12 expressly allows a ten percent increase in compensation where an
employee's injury “is caused by the willful failure of the employer
to comply with any statutory requirement or any lawful order of the
Commission[.]” N.C. Gen. Stat. § 95-131(a) adopts the federal
occupational standards as “the rules of the Commissioner of this
State,” and both the state and federal regulations are published
and available to employers in order to erase uncertainty as to what
safety measures are required in the workplace. N.C. Gen. Stat. §
95-129(4) provides any employer the right to participate in the
development of the standards by commenting on developing standards
or requesting the development of them. In light of the foregoing,
we conclude that defendants were put on sufficient notice regarding
the duties, consequences, and application of the Workers'
Compensation Act and its relevant safety standards. Accordingly,we overrule defendants' first argument.
(See footnote 1)
[2] Defendants next argue that the Full Commission erred by
failing to rule on the propriety of Deputy Commissioner Garner's
assessment of costs for the deposition of Alston. Defendants
assert that the Full Commission was required to rule on the issue
because defendants had assigned error to it. We note that in her
brief, plaintiff expressly “abandons her request for costs
associated with OSHA investigator Jeanine Alston's deposition.”
Therefore, we decline to address the merits of defendants'
argument, and we remand the case to the Full Commission with
instructions to amend its opinion and award to strike the
assessment of costs for Alston's deposition.
[3] Defendants next argue that the Full Commission erred by
deferring its ruling on plaintiff's entitlement to future benefits
regarding her wage-earning capacity after 14 February 2002.
Defendants assert that, due to the evidence presented by the
parties, the Full Commission was required to rule on the issue. We
disagree.
According to the Workers' Compensation Act, the “[p]rocesses,procedure, and discovery” used by the Industrial Commission in its
hearings “shall be as summary and simple as reasonably may be.”
N.C. Gen. Stat. § 97-80(a) (2003). “Strictly speaking, the rules
of evidence applicable in our general courts do not govern the
Commission's own administrative fact-finding.”
Haponski v.
Constructor's Inc., 87 N.C. App. 95, 97, 360 S.E.2d 109, 110 (1987)
(citations omitted). In the instant case, the Full Commission
chose not to participate in “administrative fact-finding” on the
issue of plaintiff's wage-earning capacity after 14 February 2002,
citing the lack of evidence on the issue before it. Defendants
contend that the Full Commission had sufficient evidence before it
to make a decision, and that the issue was litigated by implication
of the parties. In support of this contention, defendants note
that both parties stipulated into evidence plaintiff's post-hearing
medical and wage records.
We recognize that “[t]he Industrial Commission has an
obligation to make specific findings of fact and conclusions of law
determining each issue which is raised by the evidence and upon
which plaintiff's right to compensation depends.”
Slatton v. Metro
Air Conditioning, 117 N.C. App. 226, 231, 450 S.E.2d 550, 553
(1994). However, we also recognize that “[t]he Commission is not
in a position to make a proper award until the extent of disability
or permanent injury, if any, is determined.”
Hall v. Chevrolet
Co., 263 N.C. 569, 575, 139 S.E.2d 857, 861 (1965) (holding that
“because of plaintiff's lack of evidence at the hearing,” the
plaintiff's permanent partial disability claim, of which hepresented no evidence at the original hearing, “has not been
adjudicated.”). Furthermore, we note that “[t]he Workmen's
Compensation Act should be construed liberally, so that its
benefits are not denied upon technical and narrow
interpretation[,]”
Conklin v. Freight Lines, 27 N.C. App. 260, 261,
218 S.E.2d 484, 485 (1975), and this Court has held that the “same
reasoning” which allows a claimant to reopen his case to present
new evidence “would certainly allow the Commission to keep the case
open in order to give [the] claimant another opportunity to gather
the missing evidence essential to the determination of the issue.”
Id. at 263, 218 S.E.2d at 486.
Under N.C. Gen. Stat. § 97-85 (2003), when an appeal of an
opinion and award is taken, the Full Commission is granted the
authority to “review the award, and if good ground be shown
therefor, reconsider the evidence, receive further evidence, rehear
the parties or their representatives, and, if proper, amend the
award[.]” “[W]hether 'good ground be shown therefore' in any
particular case is a matter within the sound discretion of the
Commission, and the Commission's determination in that regard will
not be reviewed on appeal absent a showing of manifest abuse of
discretion.”
Lynch v. Construction Co., 41 N.C. App. 127, 131, 254
S.E.2d 236, 238 (holding that the Full Commission did not exceed
its authority by remanding case for further testimony regarding
causal connection of accident and injury),
disc. review denied, 298
N.C. 298, 259 S.E.2d 914 (1979). In the instant case, in its
opinion and award, the Full Commission noted that although “Dr.Zorn wrote plaintiff out of work for one month” twice following the
14 February 2002 hearing, Dr. Zorn “did not indicate whether
plaintiff's incapacity for work was a result of her right knee
injury, her other conditions or some combination thereof[,]” and
“the record contains no indication that the surgery [on plaintiff's
left knee] was ever performed.” In light of the case and statutory
law detailed above, we conclude that the Full Commission did not
abuse its discretion by reserving its decision regarding the issue
of plaintiff's wage-earning capacity after 14 February 2002. The
full extent of plaintiff's injuries had not yet been determined,
and plaintiff was entitled to an opportunity to gather that
information necessary to determine which of her conditions was
causing her continuing incapacity for work. Accordingly, we
overrule this argument.
[4] Defendants next argue that the Full Commission erred by
accepting plaintiff's account of the 28 August 2001 fall.
Defendants assert that because Deputy Commissioner Garner was the
only Commission representative to observe plaintiff's testimony
regarding the fall, the Full Commission was bound by Deputy
Commissioner Garner's determinations regarding the credibility of
plaintiff's testimony. We disagree.
In
Adams v. AVX Corp., our Supreme Court addressed a similar
argument and determined that “[w]hether the [F]ull Commission
conducts a hearing or reviews a cold record, N.C.G.S. § 97-85
places the ultimate fact-finding function with the [Full]
Commission -- not the hearing officer. It is the [Full] Commissionthat ultimately determines credibility, whether from a cold record
or from live testimony.” 349 N.C. 676, 681, 509 S.E.2d 411, 413
(1998). In an attempt to distinguish
Adams from the instant case,
defendants correctly assert that in
Adams, the deputy commissioner
rejected as incredible the claimant's testimony regarding the
consequences of her alleged accident, while in the instant case,
Deputy Commissioner Garner rejected as incredible plaintiff's
testimony regarding the cause of her accident. However, we are not
persuaded that
Adams should be read so narrowly as to prevent the
Full Commission from reassessing the evidence before it on appeal
merely because the evidence concerns the cause of the alleged
accident rather than its consequences. Instead, we conclude that,
under the Court's holding in
Adams, the Full Commission is entitled
to reverse a deputy commissioner's determination of credibility,
even if that reversal is based upon an examination of the “cold
record” rather than “live testimony.”
Id.
Furthermore, we also disagree with defendants' contention that
in cases in which observation of the claimant's actual physical
behavior is a “crucial issue,” the Full Commission should
acknowledge the hearing officer's credibility findings and offer a
full explanation if it substitutes a different judgment for those
findings. Our Supreme Court expressly rejected such a contention
in
Adams, holding that “in reversing the deputy commissioner's
credibility findings, the [F]ull Commission is not required to
demonstrate, as
Sanders states, 'that sufficient consideration was
paid to the fact that credibility may be best judged by afirst-hand observer of the witness when that observation was the
only one.'”
Id. (overruling
Sanders v. Broyhill Furniture
Industries, 124 N.C. App. 637, 641, 478 S.E.2d 223, 226 (1996),
disc. review denied, 346 N.C. 180, 486 S.E.2d 208 (1997)). In
light of
Adams, we are not persuaded that the Full Commission was
required to make those findings suggested by defendants in the
instant case. Therefore, we conclude the Full Commission did not
err by reassessing the evidence and finding that plaintiff's 28
August 2001 fall was a direct and natural result of the 9 June 2001
fall and injury. Accordingly, this argument is overruled.
[5] Defendants' final argument is that the Full Commission
erred by failing to define the time limit of plaintiff's award for
medical treatment. Defendants assert that N.C. Gen. Stat. § 97-
25.1 requires that the Full Commission specify the period in which
defendants must compensate plaintiff for her medical payments.
N.C. Gen. Stat. § 97-25.1 (2003) provides that
[t]he right to medical compensation shall
terminate two years after the employer's last
payment of medical or indemnity compensation
unless, prior to the expiration of this
period, either: (i) the employee files with
the Commission an application for additional
medical compensation which is thereafter
approved by the Commission, or (ii) the
Commission on its own motion orders additional
medical compensation. If the Commission
determines that there is a substantial risk of
the necessity of future medical compensation,
the Commission shall provide by order for
payment of future necessary medical
compensation.
In the instant case, the Full Commission ordered defendants to
“pay for medical compensation incurred by plaintiff as a result ofthe injuries she sustained when she fell at work on June 9, 2001
and the subsequent fall of August 28, 2001.” This award was based
upon the Full Commission's prior conclusion of law, in which the
Full Commission cited N.C. Gen. Stat. §§ 97-25 and 97-25.1. We
conclude that the period of limitations provided by N.C. Gen. Stat.
§ 97-25.1 is inherent in the Full Commission's award. Accordingly,
this argument is overruled.
In light of foregoing conclusions, we affirm the Full
Commission's opinion and award in part, and we remand in part.
Affirmed in part; remanded in part.
Judges BRYANT and LEVINSON concur.
Footnote: 1