Appeal by defendant from opinion and award entered 3 January
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 22 March 2006.
No brief filed on behalf of plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by Cameron D. Simmons and
Meredith T. Black, for defendant-appellants.
GEER, Judge.
Defendants Beall's Inc. and Wausau Insurance Companies appeal
from an opinion and award of the Industrial Commission awarding
plaintiff Kelly D. Lane temporary total disability compensation and
continuing medical benefits. "'[W]here the findings are
insufficient to enable the court to determine the rights of the
parties, the case must be remanded to the Commission for proper
findings of fact.'" Westbrooks v. Bowes, 130 N.C. App. 517, 528,
503 S.E.2d 409, 417 (1998) (quoting Lawton v. County of Durham, 85
N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987)). We conclude thatthe Commission's opinion and award contains insufficient findings
of fact to permit us to review its decisions regarding causation,
the compensability of Ms. Lane's continuing medical treatment, and
whether her claim should be barred for lack of notice. We,
therefore, remand for further factual findings.
Facts
On 21 September 2001, Ms. Lane was employed as a sales clerk
in a Beall's Inc. clothing store when she "felt the onset of pain
in her back" while unloading boxes of clothing from a delivery
truck. Ms. Lane did not believe immediate medical attention was
necessary and, because the manager was not in the store at the
time, she did not immediately report her injury. She did, however,
"report[] the incident to her supervisor several days later." Two
weeks later, on 4 October 2001, Ms. Lane was moving a heavy
clothing rack at Beall's when she again felt pain in her back.
Ms. Lane sought chiropractic treatment the following day with
Dr. Anthony del Genovese at Nelson & Nelson Chiropractic, who took
Ms. Lane out of work. Ms. Lane also received chiropractic
treatment from Dr. Robert W. Twadell at Chiropractic Advantage and,
on 13 November 2001, Ms. Lane began treatment with Dr. Charles W.
Pinnell III at Primary Care Plus. Dr. Pinnell diagnosed Ms. Lane
with a lower back strain and recommended she continue to remain out
of work. Ms. Lane nevertheless returned to Beall's in a cashier
position in November.
In late December 2001, the employees were informed the store
would be closing after the holiday season. Because, however, Ms.Lane "was unable to work due to pain," she voluntarily left her
employment with Beall's on 8 January 2002 and has not worked since.
The store closed permanently on 23 February 2002.
On 12 February 2002, Ms. Lane filed a Form 18 providing notice
of her original 21 September 2001 injury. Defendants filed a Form
61 denying Ms. Lane's workers' compensation claim on 6 May 2002,
and Ms. Lane thereafter requested a hearing before the Industrial
Commission.
On 15 August 2002, Ms. Lane saw Dr. John J. Mingle of the
Department of Neurology for the University of North Carolina
Hospitals. Although an MRI performed in September 2002 showed that
Ms. Lane was within normal limits, Dr. Mingle diagnosed her with
myofascial pain syndrome. When Ms. Lane next saw Dr. Mingle nearly
ten months later, on 30 May 2003, he removed her from work for two
to four weeks to obtain physical and occupational therapy. Ms.
Lane never received the recommended treatment.
Following a hearing on 12 June 2003, the deputy commissioner
entered an opinion and award concluding that, on 21 September and
4 October 2001, Ms. Lane had sustained a compensable injury arising
out of and caused by her employment at Beall's and that, as a
result, Ms. Lane was entitled to both temporary total disability
benefits from 5 October 2001 until she returned to work in November
2001 and continuing medical expenses. Defendants appealed to the
Full Commission, which adopted the deputy commissioner's opinion
and award with only minor modifications. Defendants have timely
appealed to this Court.
I
Defendants first argue that the Commission's findings of fact
are inadequate to support its conclusions that Ms. Lane's back
condition and need for treatment are causally related to her
incidents at work on 21 September and 4 October 2001. "[A]ppellate
review of an award from the Commission is generally limited to two
issues: (1) whether the findings of fact are supported by competent
evidence, and (2) whether the conclusions of law are justified by
the findings of fact."
Johnson v. Southern Tire Sales & Serv., 358
N.C. 701, 705, 599 S.E.2d 508, 512 (2004).
Regarding the nature of Ms. Lane's injuries, the Commission
found only that "Dr. Pinnell diagnosed [Ms. Lane] with a lower back
strain" and that "Dr. Mingle diagnosed [Ms. Lane] with myofascial
pain syndrome." The Commission did not, however, state whether it
accepted these diagnoses or include any other findings to indicate
what, if any, conditions Ms. Lane was suffering from at the time of
the hearing before the deputy. Moreover, with respect to
causation, the Commission made only a single summary finding that,
"[b]ased upon the greater weight of the competent medical evidence
of record, [Ms. Lane's] back condition is casually [sic] related to
her incidents at work . . . ." Because the Commission failed to
specify what this "back condition" was, we cannot review whether
the causation finding is supported by competent evidence. Finally,
regarding Ms. Lane's need for continued treatment, the only
pertinent finding notes that Dr. Mingle recommended Ms. Lane
receive "physical therapy, occupational therapy, and aqua therapy. . . ." Again, however, the Commission made no findings as to
whether it found this treatment necessary or even what condition
Dr. Mingle's recommended treatment would address _ a "lower back
strain," "myofascial pain syndrome," both, or neither.
Compare In
re Rogers, 297 N.C. 48, 56, 253 S.E.2d 912, 918 (1979)
("Administrative agencies must find facts when factual issues are
presented. They cannot fulfill this duty by merely summarizing the
evidence.").
As a result of the brevity of the findings of fact, we are
unable to ascertain on appeal what conditions the Commission
believed Ms. Lane to be suffering from, how or why those conditions
are causally related to her incidents at work, and what treatment
has been approved for which condition. "Where the findings are
insufficient to enable the court to determine the rights of the
parties, the case must be remanded to the Commission for proper
findings of fact."
Lawton, 85 N.C. App. at 592, 355 S.E.2d at 160.
Accordingly, we remand to the Commission for further findings of
fact.
See Hansel v. Sherman Textiles, 304 N.C. 44, 59-60, 283
S.E.2d 101, 109-10 (1981) (remanding for further findings when,
among other things, the Commission failed to find the extent and
nature of plaintiff's disability and whether that disability was
causally related to her employment).
II
Defendants next argue that the Commission erred by not making
adequate findings of fact as to whether Ms. Lane gave sufficient
notice of her claim under N.C. Gen. Stat. § 97-22 (2005). "[T]heCommission is not obliged to make specific findings of fact as to
every issue raised by the evidence. . . . Still, the Commission
'is required to make findings on crucial facts upon which the right
to compensation depends.'"
Westbrooks, 130 N.C. App. at 528, 503
S.E.2d at 416-17 (quoting
Lawton, 85 N.C. App. at 592, 355 S.E.2d
at 160).
With respect to notice, N.C. Gen. Stat. § 97-22 provides that:
Every injured employee . . . shall
immediately on the occurrence of an accident,
or as soon thereafter as practicable, give or
cause to be given to the employer a written
notice of the accident, . . . no compensation
shall be payable unless such written notice is
given within 30 days after the occurrence of
the accident . . ., unless reasonable excuse
is made to the satisfaction of the Industrial
Commission for not giving such notice and the
Commission is satisfied that the employer has
not been prejudiced thereby.
Nevertheless, "[f]ailure of an employee to provide written notice
of her injury will not bar her claim where the employer has actual
knowledge of her injury."
Lakey v. U.S. Airways, Inc., 155 N.C.
App. 169, 172, 573 S.E.2d 703, 706 (2002),
disc. review denied, 357
N.C. 251, 582 S.E.2d 271 (2003).
In the instant case, the Commission found that Ms. Lane
"reported the [21 September 2001] incident to her supervisor
several days" after it occurred. Although defendants assign error
to this finding of fact, this assignment of error is not brought
forth in their brief and is, therefore, abandoned. N.C.R. App. P.
28(a). Moreover, Ms. Lane testified before the Commission that she
had told her manager she had been "hurt on the truck" following the
21 September injury, and, accordingly, this finding is supported bycompetent evidence.
See Allen v. Roberts Elec. Contractors, 143
N.C. App. 55, 60, 546 S.E.2d 133, 137 (2001) (Commission's findings
are binding on appeal if supported by competent evidence).
There is, however, no finding with respect to whether
defendants ever received notice of Ms. Lane's 4 October injury,
despite defendants' evidence both that the employer had received no
such notice and that it had been prejudiced by the lack of notice.
Consequently, we remand for entry of findings of fact regarding
whether defendants had actual notice of Ms. Lane's 4 October
incident; whether she provided written notice of that incident; if
not, whether she had a reasonable excuse; and whether defendants
suffered any prejudice from the lack of notice.
See, e.g.,
Watts
v. Borg Warner Auto., Inc., 171 N.C. App. 1, 5-6, 613 S.E.2d 715,
719 (remanding when Commission concluded claimant's excuse for
failure to notify was reasonable, but made no findings as to why),
aff'd per curiam, 360 N.C. 169, 622 S.E.2d 492 (2005);
Westbrooks,
130 N.C. App. at 528, 503 S.E.2d at 417 (remanding when defendants
contended they were prejudiced by claimant's failure to provide
notice and Commission made no findings on the issue).
Affirmed in part; remanded in part.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).
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