1. Workers' Compensation_timeliness of claim_last medical payment_foreign
jurisdiction
A workers' compensation claim was timely filed because it was within two years of the
last medical compensation paid by defendants, even though the payment was to medical
providers in Virginia. Nothing in the statutory definition of medical compensation limits the
location to North Carolina, nor is there an exception for the employer's presumption that the
claim will be in a foreign jurisdiction. N.C.G.S. § 97-24.
2. Workers' Compensation_timeliness of claim_short-term disability payments_not
“other compensation”
Short-term disability benefits paid in lieu of workers' compensation were not paid
pursuant to the Workers' Compensation Act, and did not qualify as “other compensation” for
timeliness purposes under N.C.G.S. § 97-24.
3. Workers' Compensation_appeal_failure to assign error_findings binding
Failure to assign error in a workers' compensation case to findings about plaintiff's
medical history and incapacity for employment meant that those findings were binding on appeal.
The Industrial Commission's conclusion that plaintiff is totally disabled was upheld.
4. Workers' Compensation_offered part-time employment_make-work
The evidence in a workers' compensation case supported the finding that a part-time
position offered to plaintiff was make-work and did not constitute other employment as defined
by N.C.G.S. § 97-2(9).
5. Workers' Compensation_medical care_effectiveness
The Industrial Commission did not err in a workers' compensation case by ordering
defendants to pay for medical care which defendants contended was ineffective. There was
substantial evidence of record that plaintiff's care was necessary to provide relief.
6. Workers' Compensation_attorney fees_no abuse of discretion
There was no abuse of discretion in the award of attorney fees in a workers'
compensation action.
McCULLOUGH, Judge.
Defendants appeal from an opinion and award of the North
Carolina Industrial Commission (“the Commission”) awarding
plaintiff total disability compensation, medical expenses, and
attorneys' fees. Defendants argue that plaintiff's claim was not
timely filed, and that the Commission therefore lacked jurisdiction
to hear the claim. Defendants further contend the Commission erred
in concluding that plaintiff is totally disabled, and erred in
awarding her medical expenses and attorneys' fees. We affirm the
opinion and award of the Commission.
The facts of the instant case, as found by the Commission, are
as follows: plaintiff was employed as an assistant vice-president
in marketing and training by defendant Bank of America (“BOA”),
where she had worked for nearly eighteen years. BOA's home office
was located in Charlotte, North Carolina; however, plaintiff's
place of employment was Richmond, Virginia, where she resided.
On 1 August 1998, plaintiff was returning to Richmond from a
business trip to Florida. Plaintiff's manager had instructed her
to drive her personal vehicle home and then fly back to Florida at
defendants' expense. While driving from Florida to Richmond on 1
August, plaintiff sustained injuries to her head, neck, left
shoulder, and ribs when her vehicle was “T-boned” with considerableforce by another vehicle in Wilmington, North Carolina. Plaintiff
received emergency care in Wilmington, where she was diagnosed with
a head injury and multiple acute strain secondary to the motor
vehicle accident. When she returned to Richmond, plaintiff
continued to receive medical care over the next two years for a
variety of conditions arising from the accident, including cerebral
concussion with persistent post-concussive disorder, cervical
whiplash, cognitive defects, attention problems, persistent chronic
pain, a blind spot in her left eye, and neurosensory hearing loss
in the left ear.
Between 1 August 1998 and 14 August 2000, plaintiff received
either her full salary or short-term disability payments from
defendants. While plaintiff received short-term disability she was
not working. During the weeks plaintiff received her full salary,
she worked between three to six hours per day performing menial,
“make work” tasks. The Commission found, and defendants have
excepted, that these tasks did not constitute “other employment”
pursuant to section 97-2(9) of the General Statutes.
On 5 September 2000, plaintiff attempted full-time employment
at National Catalog in Martinsville, Virginia. Due to her chronic
headaches, however, plaintiff was unable to perform her job duties,
and National Catalog terminated her employment on 7 November 2000.
Plaintiff received unemployment compensation benefits from the
Virginia Employment Security Commission between 27 November 2000
and 15 May 2001 as a result of her termination by National Catalog.
Following her move to Martinsville, Virginia, plaintiffcontinued to receive medical care for a variety of conditions
arising from her 1 August 1998 injury, including chronic pain,
major depression, post-traumatic stress disorder, and cognitive
defects. Two of plaintiff's treating physicians testified that
plaintiff remains incapable of employment.
Upon presentation of the evidence, the Commission found and
concluded that plaintiff was totally disabled and entered an award
granting her total disability compensation, medical expenses, and
attorneys' fees. From the opinion and award of the Commission,
defendants appeal.
_______________________________________________________
Defendants argue the Industrial Commission erred by (1)
concluding that plaintiff's claim was timely filed; (2) concluding
that plaintiff is totally disabled; (3) finding that the part-time
position offered to plaintiff did not constitute “other employment”
as defined in section 97-2(9) of the General Statutes; (4) ordering
defendants to pay for medical treatment for plaintiff; and (5)
awarding plaintiff attorneys' fees. For the reasons stated herein,
we affirm the opinion and award of the Commission.
[1] By their first assignment of error, defendants contend the
Commission erred in finding and concluding that plaintiff's claim
was timely filed. Defendants correctly note that, pursuant to
section 97-24 of our General Statutes, the right to workers'
compensation for an injury by accident claim is “forever barred”
unless the claimant files a claim with the Industrial Commission
either (1) within two years of the accident or (2) “within twoyears after the last payment of medical compensation when no other
compensation has been paid and when the employer's liability has
not otherwise been established.” N.C. Gen. Stat. § 97-24 (2003).
Defendants argue that plaintiff neither filed her claim within two
years of the accident, nor within two years after the last payment
of medical compensation by defendants. We disagree.
Plaintiff's accident occurred on 1 August 1998. Plaintiff
filed a Form 18 Notice of Accident with the North Carolina
Industrial Commission on 9 August 2001. Thus, she did not file her
claim within two years of the accident. However, the Commission
found that defendants last paid medical compensation for
plaintiff's compensable injuries in August of 2000. Plaintiff
therefore filed her claim within the two-year period following the
last payment of medical compensation by defendants. At that time,
defendants had paid no other compensation pursuant to the Workers'
Compensation Act, nor had their liability been otherwise
established. Plaintiff's claim was thus timely filed. See N.C.
Gen. Stat. § 97-24.
Defendants assign error to the Commission's finding that they
last paid medical compensation for plaintiff's injuries in August
of 2000. Defendants argue that the payment at issue, $72,554.38
paid to medical providers in Virginia, does not meet the statutory
definition of “medical compensation” under section 97-2(19) of the
North Carolina General Statutes, because when defendants made the
payment, they presumed that plaintiff would be filing a workers'
compensation claim in Virginia, rather than North Carolina. Wefind no merit to defendants' argument.
Section 97-2(19) of the North Carolina General Statutes
defines medical compensation as
medical, surgical, hospital, nursing, and
rehabilitative services, and medicines, sick
travel, and other treatment, including medical
and surgical supplies, as may reasonably be
required to effect a cure or give relief and
for such additional time as, in the judgment
of the Commission, will tend to lessen the
period of disability; and any original
artificial members as may reasonably be
necessary at the end of the healing period and
the replacement of such artificial members
when reasonably necessitated by ordinary use
or medical circumstances.
N.C. Gen. Stat. § 97-2(19) (2003). Nothing in the definition
limits the geographical locale of the medical treatment to North
Carolina, nor does the definition create exceptions based upon an
employer's “impression” of a “presumed claim” in a foreign
jurisdiction.
In their answers to plaintiff's second interrogatories,
defendants responded to the following question: “Did [defendants]
pay for either medical, surgical, hospital, nursing, rehabilitative
services, or medicine for injuries sustained by [plaintiff] on
August 1, 1998?” Defendants responded “Yes.” Defendants also
affirmed that they had made such payments through August of 2000.
Thus, by their own admission, defendants paid medical compensation
to plaintiff in August of 2000. The Commission did not err in
finding that defendants last paid medical compensation to plaintiff
in August of 2000.
[2] Defendants argue that plaintiff received “othercompensation” in the form of short-term disability benefits such
that the provisions of section 97-24 are inapplicable. We
disagree. “Compensation” under the Workers' Compensation Act means
“the money allowance payable to an employee or to his dependents as
provided for in this Article, and includes funeral benefits
provided herein.” N.C. Gen. Stat. § 97-2(11) (2003) (emphasis
added). Defendants concede that the short-term disability benefits
paid to plaintiff were in lieu of workers' compensation benefits
and not made payable to plaintiff pursuant to the Workers'
Compensation Act. The short-term disability benefits therefore do
not qualify as “other compensation” under section 97-24 of the
General Statutes. We overrule defendants' assignment of error.
[3] Defendants next contend the Commission erred in concluding
that plaintiff is totally disabled. Defendants argue plaintiff
failed to produce evidence that she is incapable of work in any
employment. Defendants' argument has no merit.
The Commission made numerous findings detailing plaintiff's
medical history and her incapability for employment. Defendants
failed to assign error to these findings and they are therefore
binding upon appeal. For example, the Commission found that, due
to her 1 August 1998 head trauma, plaintiff
suffers impairments for attention, recall,
perception, construction in the visual
channel, mild impairments for short-term
memory, below average visual delayed memory,
striking impairments on visual spatial
construction, and markedly deteriorated
intellectual functioning from pre-morbid
functioning due to her reductions in both
verbal and non-verbal functioning.
Two of plaintiff's treating physicians testified that she was
“incapable of sustaining competitive employment” and was “totally
disabled.”
The findings of fact by the Industrial Commission are
conclusive on appeal if supported by any competent evidence. Adams
v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413 (1998).
“Thus, on appeal, this Court 'does not have the right to weigh the
evidence and decide the issue on the basis of its weight. The
court's duty goes no further than to determine whether the record
contains any evidence tending to support the finding.'” Id.
(quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144
S.E.2d 272, 274 (1965)). In the present case, the Commission based
its finding that plaintiff was totally disabled on substantial
competent evidence of record. We overrule this assignment of
error.
[4] By further assignment of error, defendants contend the
Commission erred in finding that the part-time position offered to
plaintiff did not constitute “other employment” as defined by
section 97-2(9) of the General Statutes. Defendants argue
plaintiff offered insufficient evidence that her part-time
employment was not generally available on the market. Defendants
also contend the Commission “applied a standard that was not
considered since plaintiff was working in Virginia and presumably
pursuing a claim in Virginia.”
Defendants' presumptions aside, plaintiff offered substantial
evidence that the position offered to her upon her return was “makework” rather than “other employment.” Plaintiff testified when she
returned to BOA on a part-time basis, her work consisted of
help[ing] . . . make copies, sort the copies.
I would go to, maybe, the copying company and
pick up copies for them and have them made.
I'd either, maybe, do their supplies, make
sure they had their supplies, and most of the
time I did - played games on the computer from
the time - from the time that I got there.
Usually, maybe they would let me work, maybe,
just two hours sorting stuff or whatever, and
the rest of the time I was just playing games
on the computer.
This evidence supports the Commission's finding that plaintiff's
part-time position was “make-work.” We overrule this assignment of
error.
[5] Defendants further argue the Commission erred in ordering
defendants to pay for plaintiff's medical care after August of
2000. Defendants assert that the evidence tended to show that the
medical care provided to plaintiff was ineffective in lessening her
disability or providing relief. Defendants point to such notations
by plaintiff's physicians that plaintiff “continues to have pain”
and “still having increased anxiety and problems sleeping” as proof
that the medical care was ineffective. Defendants argue the
Commission thus erred in concluding that the medical care provided
to plaintiff since August of 2000 was “reasonably necessary to
effect a cure and provide relief to plaintiff.” We disagree.
Apparently, defendants believe that if a particular medication
or treatment does not produce the precise desired result, an
employer should not be responsible for payment of any of an injured
worker's medical care for chronic pain arising from a compensable
injury. There was substantial evidence of record that plaintiff's
medical care was necessary to provide her with relief. We overrulethis assignment of error.
[6] Finally, defendants argue the Commission erred in awarding
attorneys' fees to plaintiff. The decision of whether to award
attorneys' fees, however, is within the sound discretion of the
Industrial Commission. Taylor v. J.P. Stevens Co., 307 N.C. 392,
397, 298 S.E.2d 681, 683 (1983). Defendants fail to demonstrate on
what basis the Commission abused its discretion in awarding
attorneys' fees, and we likewise have discerned none.
The opinion and award of the Industrial Commission is
affirmed.
Affirmed.
Judges TIMMONS-GOODSON and STEELMAN concur.
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