Appeal by defendant from an Opinion and Award entered 4
November 2004 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 19 October 2005.
The Deuterman Law Group, PA, by Daniel L. Deuterman and Joel
W. Davis, for plaintiff-appellee.
McGuireWoods, LLP, by Steven T. Ackermann, for defendant-
appellant.
BRYANT, Judge.
ABB, Inc. (defendant) appeals an Opinion and Award entered 4
November 2004 by the North Carolina Industrial Commission (Full
Commission) awarding Charles Haley (plaintiff) temporary total
disability compensation, temporary partial disability compensation
and medical expenses incurred for the treatment of plaintiff's
disability; and ordering defendant to pay plaintiff's attorney's
fees and a sanction of $1,000.00 for failure to comply with the
Workers' Compensation Rules.
Facts and Procedural History
On 29 January 2001 plaintiff sustained a compensable injury by
accident to his right knee when he slipped off a pallet while
working as a stock room attendant/receiving clerk for defendant.
Defendant accepted liability for plaintiff's right knee injury by
filing a Form 60 on 30 March 2001, wherein the carrier agreed to
make temporary total disability payments based on the average
weekly wage of $533.20, which yields a weekly compensation rate of
$355.48. On 10 April 2001, defendant filed an amended Form 60
listing an average weekly wage for plaintiff of $1,097.44 which
yields the maximum compensation rate for 2001 of $620.00 per week.
Plaintiff was initially treated by Dr. Robert Wainer, an
orthopaedic surgeon. On 16 March 2001, Dr. Wainer performed knee
surgery on plaintiff. Thereafter, plaintiff's condition
deteriorated and he was subsequently diagnosed by Dr. Wainer as
having developed reflex sympathetic dystrophy (RSD). Dr. Wainerreferred plaintiff to Dr. Lewis A. Koman at North Carolina Baptist
Hospital for treatment of his RSD.
Plaintiff underwent several diagnostic exams to determine the
extent of his complex regional pain syndrome (CRPS), also referred
to as RSD. The results of the diagnostic exams indicated plaintiff
had an abnormal pain reaction and plaintiff was diagnosed by Dr.
Koman as suffering from severe arthrofibrosis, or scar tissue in
the knee joint, and CRPS in the right leg, secondary to the
admittedly compensable knee injury of 29 January 2001. CRPS or RSD
is a syndrome that includes pain which is usually out of proportion
to the injury and includes autonomic dysfunction and functional
impairment.
On 31 October 2001, plaintiff underwent a repeat arthroscopy
performed by Dr. Gary Poehling. The second arthroscopy revealed
very severe arthrofibrosis in plaintiff's right knee, which Dr.
Koman felt was directly related in part to the severity of
plaintiff's injury. Although the arthroscopy of 31 October 2001
restored some range of motion to plaintiff's leg, plaintiff
continued to experience severe and disabling symptoms of CRPS.
Plaintiff did not regain functional use of his right leg and
remained on crutches.
On 16 January 2002, Dr. Koman found plaintiff unable to work
and referred him for pain management. On 21 January 2002, Dr.
Koman released plaintiff to sedentary work, restricted to sitting.
Plaintiff was allowed to work half days for two weeks, for six
hours per day in the third week, and full time in the fourth week. Plaintiff returned to work with defendant on 26 January 2002
in a created shipping clerk position. This position normally
required a worker to load trucks, attach labels and complete
paperwork. However, in order to adhere to plaintiff's
restrictions, plaintiff was only required to complete paperwork.
Dr. Koman continued to treat plaintiff and on 24 April 2002
Dr. Koman found plaintiff needed additional sympathetic block
injections and referred plaintiff to a psychologist. On 24 May
2002 plaintiff was first examined by psychologist Dr. Timothy N.
Webster. Dr. Webster initially evaluated plaintiff to determine
whether or not plaintiff was a candidate for a spinal cord
stimulator. Dr. Webster diagnosed plaintiff with major depression
secondary to chronic pain and situational stressors. Dr. Webster
found plaintiff to have no significant psychiatric history and
found plaintiff to be credible based upon the testing he
administered.
On 10 July 2002, Dr. Koman noted he did not feel plaintiff
needed to remain sedentary, but felt plaintiff required a job that
would accommodate his continued use of crutches. Dr. Koman did not
feel p1aintiff needed additional therapy, but felt plaintiff's
continuing symptoms of pain needed to be addressed. On 8 August
2002, plaintiff was seen by psychiatrist Dr. Henry E. Branham. Dr.
Branham diagnosed plaintiff with major depression, single episode,
non-psychotic, secondary to chronic pain syndrome and RSD. A
spinal cord stimulator was surgically installed by Dr. Stuart Meloy
of Piedmont Pain Management in December 2002. The trial of thespinal cord stimulator was not successful and plaintiff was left
with severe back pain at the site of the insertion of the device
into his spinal cord.
In August of 2003 plaintiff was referred to Dr. Henry Ezell
Branham, Jr. for a psychiatric evaluation. On 24 January 2003, Dr.
Branham evaluated plaintiff and found plaintiff to be so profoundly
depressed and suicidal that Dr. Branham wrote plaintiff out of work
indefinitely. After receiving Dr. Branham's report Jean Bassett,
defendant's rehabilitation nurse overseeing plaintiff's case,
referred plaintiff to Dr. Webster for psychological counseling.
Dr. Webster saw plaintiff on 31 January 2003, at which time he
found plaintiff's depression was considerably worse and plaintiff
was having suicidal thoughts. Dr. Webster found plaintiff's
depression to be disabling.
On 20 February 2003, plaintiff was given a functional capacity
evaluation and found to be capable of sedentary work for eight
hours a day. Dr. Koman last saw plaintiff on 26 February 2003, at
which time Dr. Koman assigned a 100% permanent impairment rating to
plaintiff's right leg. Dr. Koman also placed plaintiff on
permanent restrictions that included sedentary work only, lifting
ten pounds maximum, and limited walking and standing with crutches
only. Dr. Koman attributed the rating and restrictions to the
limitation of motion in plaintiff's knee, the swelling, the
previous surgeries, the decreased function, and plaintiff's
inability to walk. Dr. Koman causally related the rating and
restrictions to plaintiff's compensable injury of 29 January 2001. Dr. Koman released plaintiff to further care with pain management
professionals and continued psychiatric treatment.
The Full Commission found that, as the result of the
compensable injury by accident, plaintiff was totally disabled and
unable to work in any employment from 18 March 2001 until he
returned to work on 26 January 2002. Upon his return to work,
plaintiff earned diminished wages and was paid temporary partial
disability benefits from 26 January 2002 through 30 June 2002, in
varying amounts equal to two-thirds of the difference between
plaintiff's average weekly wage of $1,097.40 and his actual
earnings.
The Full Commission also found that defendant unilaterally and
without explanation decided to terminate plaintiff's temporary
partial disability benefits without seeking or receiving approval
of the Commission. On 17 October 2002, the Commission issued an
Order requiring defendant to pay plaintiff temporary partial
disability, subject to a 10% penalty for all payments more than 14
days past due. Defendant did not timely file an appeal of this
Order. At the time of the 30 April 2003 hearing before Deputy
Commissioner Glenn, defendant had not made any additional temporary
partial disability payments to plaintiff and had failed to comply
with the Commission's Order of 17 October 2002.
As a result of the termination of plaintiff's benefits,
plaintiff suffered financial hardship. The Full Commission found
plaintiff's financial problems after April 2002 were the direct
result of defendant's decision to terminate plaintiff's temporarypartial disability benefits without approval of the Commission.
Plaintiff's financial problems compounded and aggravated his
depression resulting from the pain and disability of his
compensable knee injury of 29 January 2001.
Plaintiff has remained out of work since 24 January 2003 under
Dr. Branham's orders. The Full Commission found plaintiff has not
reached maximum medical improvement and since 24 January 2003 has
continued to be unable to work due to his disabling depression and
the physical pain and disability caused by his admittedly
compensable injury of 29 January 2001. The Full Commission found,
based on the greater weight of the credible evidence, that
plaintiff's depression and other psychological conditions are the
proximate result of the pain associated with his compensable knee
injury of 29 January 2001.
The Full Commission further found that plaintiff's back
condition resulted from the implantation of the spinal cord
stimulator and was a natural and probable result of the compensable
injury by accident and resulting pain. The Full Commission awarded
plaintiff temporary total disability compensation, temporary
partial disability compensation, compensation for medical expenses
incurred for the treatment of his disability, and ordered defendant
to pay plaintiff's attorney's fees and a sanction of $1,000.00 for
failure to comply with the Workers' Compensation Rules. Defendant
appeals.
_________________________
Defendant raises four issues on appeal: (I) whether the Full
Commission erred in assessing sanctions and attorney's fees against
defendant; (II) whether the Full Commission erred in awarding
plaintiff compensation for his back and leg injuries prior to a
second opinion evaluation; (III) whether the Full Commission
accurately determined plaintiff's average weekly wage; and (IV)
whether the Full Commission erred in finding defendant is not
entitled to initiate vocational rehabilitation. For the following
reasons, we affirm the Opinion and Award of the Full Commission.
Standard of Review
Review by this Court of a decision by the North Carolina
Industrial Commission is limited to the determination of “whether
any competent evidence supports the Commission's findings of fact
and whether [those] findings . . . 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). We note at the outset that
defendant has failed to specifically assign error to each finding
of fact it contends is not supported by competent evidence.
Defendant merely asserts “[t]he Deputy Commissioner's and Full
Commission's findings of fact and conclusions of law were
unsupported by the evidence and/or contrary to the Workers'
Compensation Act, N.C. Gen. Stat. Section 91-1 et seq.”
“[F]indings of fact to which [an appellant] has not assigned error
and argued in his brief are conclusively established on appeal.”
Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 603,
568 S.E.2d 305, 308 (2002). Furthermore, our “[a]ppellate reviewdepends on specific exceptions and proper assignments of error
presented in the record on appeal. The assignment of error must
clearly disclose the question presented. A single assignment [of
error] generally challenging the sufficiency of the evidence to
support numerous findings of fact . . . is broadside and
ineffective.”
Wade v. Wade, 72 N.C. App. 372, 375-76, 325 S.E.2d
260, 266 (1985) (internal citations omitted);
see also, N.C. R.
App. P. 10. Therefore, the Full Commission's specific findings of
fact are binding on appeal. However, the Commission's conclusions
of law are reviewed
de novo.
McRae v. Toastmaster, Inc., 358 N.C.
488, 496, 597 S.E.2d 695, 701 (2004).
Finally, we note, in his brief, plaintiff moves this Court to
dismiss defendant's appeal. “Motions to an appellate court may not
be made in a brief but must be made in accordance with N.C. R. App.
P. 37.”
Horton v. New South Ins. Co., 122 N.C. App. 265, 268, 468
S.E.2d 856, 858 (1996). We will limit our review only to those
issues properly preserved by the parties.
I
[1] Defendant first claims the Full Commission erred in
assessing sanctions and attorney's fees against defendant. Under
Section 97-88.1 of the North Carolina General Statutes the
Industrial Commission may assess “the whole cost of the proceedings
including reasonable [attorney's fees]” if the Commission
determines “any hearing has been brought, prosecuted or defended
without reasonable ground.” N.C. Gen. Stat. . 97-88.1 (2003);
see
also, Hieb v. Howell's Child Care Ctr., Inc., 123 N.C. App. 61, 472S.E.2d 208 (1996) (where the Full Commission properly awarded
attorney's fees upon finding defendants in violation of Industrial
Commission rules by terminating compensation without the
Commission's approval, and by refusing to resume immediate payments
following the Deputy Commissioner's order). The Commission may
also assess a penalty of 10% of any “installment not paid within 14
days after it becomes due.” N.C. Gen. Stat. § 97-18(g) (2003).
Furthermore, Rule 802 of the Workers' Compensation Rules of the
North Carolina Industrial Commission permits the Commission to
impose fees and sanctions upon a party that fails to comply with
the Commission's rules or fails to timely file required forms.
Workers' Comp. R. of N.C. Indus. Comm'n 802, 2005 Ann. R. (N.C.)
919, 945-46;
see also, Joyner v. Mabrey Smith Motor Co., 161 N.C.
App. 125, 587 S.E.2d 451 (2003) (where the Full Commission properly
imposed sanctions under Rule 802 when the defendant failed to
answer interrogatories within the appropriate time period and
failed to request any extension of time).
The Full Commission awarded plaintiff attorney's fees of 25%
of the past due temporary partial disability compensation; a late
payment penalty of 10% on all past due temporary partial or total
disability compensation; a sanction of $1,000.00 for failure to
comply with the Workers' Compensation Rules by stopping plaintiff's
temporary partial disability compensation without Commission
approval; and attorney's fees of 25% of all compensation payable to
plaintiff. The Full Commission made the following pertinentfindings of fact which are based on competent evidence and
therefore binding on appeal:
41. On or about June 30, 2002, defendant
unilaterally and without explanation decided
to terminate plaintiff's temporary partial
disability benefits. Defendant did not seek
or receive Commission approval before
terminating plaintiff's benefits.
42. As a result of the termination of
plaintiff's benefits, plaintiff suffered
financial hardship. . . . Plaintiff's
financial problems compounded and aggravated
plaintiff's depression resulting from the pain
and disability of his compensable knee injury
of January 29, 2001.
43. From the period of April 28, 2002 through
the date of the hearing before the Deputy
Commissioner, plaintiff received only three
temporary partial disability payments,
requiring plaintiff's counsel to request an
order from the Commission requiring defendant
to make regular payments.
44. On October 17, 2002, the Commission
issued an Order requiring defendant to pay
plaintiff temporary partial disability,
subject to a 10% penalty for all payments more
than 14 days past due. Defendant did not
timely file an appeal of this Order.
45. At the time of the hearing before Deputy
Commissioner Glenn, defendant had not made any
additional temporary partial disability
payments to plaintiff and failed to comply
with the Commission's Order of October 17,
2002.
The Full Commission concluded “[d]efendant's refusal to comply
with the Commission's Order of October 17, 2002 to reinstate
temporary partial disability compensation and defendant's denial of
psychological treatment were made without any reasonable basis.”
The Full Commission's conclusion that defendant's refusal to comply
with the Commission's order and its denial of psychologicaltreatment was without reasonable grounds and based on unfounded
litigiousness was based on sufficient evidence such that its
decision to award reasonable attorney's fees was appropriate.
See
Hieb, 123 N.C. App. at 69, 472 S.E.2d at 213. This assignment of
error is overruled.
II
[2] Defendant next claims the Full Commission erred in
awarding plaintiff compensation for his back and leg injuries prior
to its guaranteed second opinion evaluation. Defendant argues it
is statutorily entitled to a second opinion regarding plaintiff's
permanent partial disability rating under Section 97-27(a) of the
North Carolina General Statutes. Defendant requested an
independent medical examination at the hearing before Deputy
Commissioner Glenn to obtain a second opinion which was denied.
N.C. Gen. Stat. . 97-27 states:
(a) After an injury, and so long as he claims
compensation, the employee, if so requested by
his employer or ordered by the Industrial
Commission, shall, subject to the provisions
of subsection (b), submit himself to
examination, at reasonable times and places,
by a duly qualified physician or surgeon
designated and paid by the employer or the
Industrial Commission. . . .
(b) In those cases arising under this Article
in which there is a question as to the
percentage of permanent disability suffered by
an employee, if any employee, required to
submit to a physical examination under the
provisions of subsection (a) is dissatisfied
with such examination or the report thereof,
he shall be entitled to have another
examination by a duly qualified physician or
surgeon . . . .
N.C.G.S. § 97-27 (2003). “The language of the statute, however,
imposes no mandatory obligation on the Industrial Commission to
order an examination. When an employee [sic] requests the
Commission to order an employee to submit to an examination,
whether the Commission grants or denies the employer's request is
within the discretion of the Commission.”
Taylor v. M. L. Hatcher
Pick-Up & Delivery Serv., 45 N.C. App. 682, 684-85, 263 S.E.2d 788,
790 (1980). Defendant chose plaintiff's treating doctor that gave
him the disability rating for his right leg. Defendant has shown
no abuse of discretion by the Deputy Commissioner in finding that
defendant was not entitled to an independent medical evaluation for
plaintiff's leg injury. Furthermore, the Full Commission found,
based on credible evidence, that plaintiff's back condition
resulted from the implantation of the spinal cord stimulator and
was a natural and probable result of the compensable injury by
accident and resulting pain. Therefore the Full Commission did not
err in affirming the Deputy Commissioner's findings and awarding
plaintiff compensation for his back and leg injuries. This
assignment of error is overruled.
III
[3] Defendant also argues the Full Commission improperly
determined plaintiff's average weekly wage. In its Opinion and
Award, the Full Commission found that “[d]efendant shall pay
plaintiff temporary total disability compensation at the rate of
$620.00 per week for the periods from March 18, 2001 through
January 25, 2002 and from January 24, 2003 and continuing untilfurther Order of the Commission.” Defendant claims plaintiff's
weekly wage was inflated due to the amount of overtime he worked in
the year prior to his injury by accident and his decrease in wages
was not caused solely by the accident, but rather also by the lack
of overtime available for plaintiff to work subsequent to his
injury and his wages should be recalculated.
The Full Commission found as fact that “[o]n April 10, 2001,
defendant filed an amended Form 60 listing an average weekly wage
for plaintiff of $1,097.40, which yields the maximum compensation
rate for 2001 of $620.00 per week.” This finding was not assigned
as error by defendant and is binding upon this Court. Furthermore,
evidence presented at the hearing before Deputy Commissioner Glenn
established that overtime was still available to defendant's
workers and defendant had moved plaintiff to a position where his
overtime was not limited to that available on a single production
line.
See Derosier v. WNA, Inc., 149 N.C. App. 597, 602, 562
S.E.2d 41, 45 (2002). We find competent evidence supports the Full
Commission's determination of plaintiff's average weekly wage.
This assignment of error is overruled.
IV
[4] Finally, defendant argues the Full Commission erred in
finding it is not entitled to initiate vocational rehabilitation.
“In case of a controversy arising between the employer and employee
relative to the continuance of medical, surgical, hospital, or
other treatment, the Industrial Commission may order such furthertreatments as may in the discretion of the Commission be
necessary.” N.C. Gen. Stat. § 97-25 (2003).
The Full Commission found as fact that plaintiff has been
assigned a 100% permanent partial impairment rating to his right
leg and that, physically, plaintiff is capable of sedentary work
for eight hours a day. However, plaintiff has been found to be
unable to work due to psychological disability directly related to
his chronic pain and physical disability. Plaintiff was seen by
three different doctors concerning his psychological conditions,
one of which conducted an independent medical examination at the
request of defendant. The Full Commission found the opinions and
conclusions of each of the doctors examining and treating
plaintiff's psychological condition were all consistent.
Furthermore, the Full Commission found “[p]laintiff has not reached
maximum medical improvement of his depression and since January 24,
2003 has continued to be unable to work due to his disabling
depression and the physical pain and disability caused by his
admittedly compensable injury of January 29, 2001.”
In light of the findings, it is clear the Full Commission
exercised its sound and proper discretion in denying defendant's
request for vocational rehabilitation services until plaintiff is
released by his treating physicians to return to work or
participate in vocational rehabilitation services.
See, Shoemaker
v. Creative Builders, 150 N.C. App. 523, 563 S.E.2d 622 (2002)
(this Court affirmed the Full Commission's finding that vocational
rehabilitation was futile and was properly denied based on thetestimony of the plaintiff's treating physician). This assignment
of error is overruled.
For the foregoing reasons, the Opinion and Award of the Full
Commission is affirmed.
Judges HUDSON and CALABRIA concur.
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