How to access the above link?
1. Workers' Compensation--partial incapacity--postinjury capacity to earn wages
The Industrial Commission did not err in a workers' compensation case by considering plaintiff employee's postinjury capacity to earn wages in calculating benefits for partial incapacity under N.C.G.S. § 97-30 where the employee has not actually returned to work.
2. Workers' Compensation--Form 26 agreement--alternative favorable remedies
The Industrial Commission did not err in a workers' compensation case by concluding on the date the Form 26 was approved that N.C.G.S. § 97-30 provided a more favorable remedy than plaintiff received pursuant to N.C.G.S. § 97-31 under the Form 26 agreement based on the Commission's use of the federal minimum wage as plaintiff's earning capacity, because the determination was supported by relevant medical and record evidence.
3. Appeal and Error--preservation of issues--failure to assign error
Although defendants contend the Industrial Commission erred in a workers' compensation case by failing to give defendants a credit for temporary total disability benefits paid past the date defendant reached maximum medical improvement, this argument is dismissed because: (1) defendants failed to assign error to the Commission's opinion and award on the basis that a credit was erroneously overlooked by the Commission as required by N.C. R. App. P. 10(a); and (2) none of the assignments of error direct the attention of the Court of Appeals to an alleged error regarding the credit, nor are there clear or specific record or transcript references included in the brief as required by N.C. R. App. P. 10(c)(1).
The Law Offices of George W. Lennon, by George W. Lennon and
S. Neal Camak, and Hugh D. Cox, for plaintiff-appellee.
Sumrell, Sugg, Carmichael, Hicks & Hart, P.A., by Jill Quattlebaum Byrum and B. Kyle Dickerson, for defendant- appellants.
MARTIN, Chief Judge.
Craven Regional Medical Center and Virginia Insurance Reciprocal (collectively defendants) appeal from an opinion and award of the North Carolina Industrial Commission (the Commission) setting aside the Commission's previous approval of a Form 26 agreement on the grounds that the benefits awarded thereunder were less favorable than those available under N.C. Gen. Stat. § 97-30 (2003). We affirm.
Lionel Lewis (plaintiff) suffered a herniated disc in his back on 23 February 1990 during the course and scope of his employment. Defendants admitted liability and paid plaintiff temporary total disability from 30 March 1990 through 28 January 1991 as provided by a Form 21 agreement approved by the Commission on 31 October 1991. Beginning on 28 January 1991 and continuing for a period of forty-five weeks, plaintiff received worker's compensation for a fifteen percent permanent partial disability to his back as provided for by N.C. Gen. Stat. § 97-31 pursuant to a Form 26 agreement approved by the Commission on 10 October 1991.
On 14 May 1992, plaintiff sought additional compensation on the grounds that he suffered a substantial change of condition. Both the deputy commissioner and the Commission rejected plaintiff's claim of a change in condition. In so doing, the Commission found as fact that, [d]espite his very limited education and his work history of manual labor, [plaintiff] has had wage earning capacity. . . . His allegation that he has been totally disabled is not accepted as credible. Plaintiff appealed, and this Court affirmed, holding the Commission's findings of factsupported its conclusion that there had been no change in plaintiff's condition. Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 149, 468 S.E.2d 269, 274 (1996) (Lewis I). Although plaintiff argued to this Court that the Form 26 agreement was not fair and just, the Court declined to address the issue in the absence of a motion by plaintiff to the Commission to have the agreement set aside. Lewis I, 122 N.C. App. at 148, 468 S.E.2d at 274.
On 6 June 1996, plaintiff requested a hearing before the Commission to challenge the Form 26 agreement on the grounds that it was not fair to plaintiff at the time it was entered and was, therefore, improvidently approved by the Commission. The deputy commissioner rejected plaintiff's challenge to the Form 26 agreement, but the Full Commission reversed. Contrary to its earlier determination that plaintiff retained wage earning capacity, the Commission found plaintiff had been incapable of earning wages since 23 February 1990 and determined that plaintiff was qualified to receive benefits under N.C. Gen. Stat. § 97-29. Upon comparing the disability compensation provided under the Form 26 agreement with those calculated pursuant to N.C. Gen. Stat. § 97-29, the Commission concluded the Form 26 agreement did not provide plaintiff with the most favorable disability benefits to which he was entitled and, therefore, must be set aside. Accord Vernon v. Steven L. Mabe Builders, 336 N.C. 425, 432-33, 444 S.E.2d 191, 195 (1994). Defendant appealed and this Court reversed, holding (1) there was no competent evidence in the record to support the finding that plaintiff was incapable of earning wages with defendant-employer or in any other employment so as to be entitled to benefits under N.C. Gen. Stat. § 97-29 and (2) the Commission was collaterally estopped from finding plaintiff to be incapable of work on 10 October 1991 by virtue of its previous finding that plaintiff retained wage earning capacity at the time the Form 26 agreement was approved. Lewis v. Craven Reg'l Med. Ctr., 134 N.C. App. 438, 442, 518 S.E.2d 1, 4 (1999), aff'd per curiam, 352 N.C. 668, 535 S.E.2d 33 (2000) (Lewis II). The matter was remanded to the Commission for a determination of whether plaintiff would receive a greater benefit under N.C. Gen. Stat. § 97-30 than he received under the Form 26 agreement. Id. at 443, 518 S.E.2d at 4.
On remand, the Commission concluded that the compensation provided in the agreement was less favorable to plaintiff than that available under N.C. Gen. Stat. § 97-30 and again set aside the Form 26 agreement. Building on its initial opinion and award, which determined that plaintiff had retained wage-earning capacity since his injury, the Commission took judicial notice of the federal minimum wage in 1991 and inferred plaintiff's wage-earning capacity to be equal to the minimum wage. The Commission rejected the possibility that plaintiff could earn more than the minimum wage because there [was] no indication in the record justifying the elevation of his wage-earning capacity above minimum wage. Based on the federal minimum wage in 1991, the Commissioncalculated plaintiff was entitled to the amount of $24,298.28 under N.C. Gen. Stat. § 97-30, which was greater than the $10,116.45 plaintiff received pursuant to the Form 26 agreement. The Commission made findings of fact and conclusions of law that plaintiff was not provided the most favorable remedy, set aside the Form 26 agreement, and awarded plaintiff $14,181.83, the difference between the benefits he had already received under the Form 26 agreement and the benefits as calculated under N.C. Gen. Stat. § 97-30. Defendants appeal.
*** Converted from WordPerfect ***