Appeal by plaintiff from an opinion and award entered 21
January 2005 by the North Carolina Industrial Commission. Heard in
the Court of Appeals 8 February 2006.
Oxner Thomas & Permar, PLLC, by R. H. Permar, III, for
Hill, Evans, Duncan, Jordan & Beatty, PLLC, by Richard T.
Granowsky, for defendant-appellees.
Gloria Correa (plaintiff) appeals from an opinion and award
of the North Carolina Industrial Commission (Commission) entered
21 January 2005. For the reasons stated herein, we reverse in part
the opinion and award of the Industrial Commission.
Plaintiff was employed by Kmart in Greensboro, North Carolina.
On 2 May 2001, plaintiff sustained a lower-back injury in the
course of her employment. Defendants admitted liability for
plaintiff's claim in a Form 21 agreement for temporary totaldisability benefits was approved by the Commission on 10 December
Plaintiff began treatment on 12 May 2001 and came under the
care of Dr. Samuel Sue (Dr. Sue) on 31 July 2001. Plaintiff was
initially diagnosed with lower-back pain and muscle spasms. Dr.
Sue referred plaintiff for physical therapy and prescribed Vioxx
and other medications for her symptoms.
Plaintiff returned to limited duty work on 23 October 2001.
On 6 November 2001, plaintiff was prescribed and administered a
sacroiliac joint injection, and Dr. Sue instructed plaintiff to
return to full-duty work the following week. Plaintiff returned to
full-duty work, but at a lower weekly wage. On 17 December 2001,
a Form 26 agreement for temporary partial disability was approved
by the Commission.
In a follow-up appointment on 12 December 2001, plaintiff
exhibited severe pain from bending and stooping at work, and had
trouble walking. Plaintiff was referred by Dr. Sue to Dr. Richard
Ramos (Dr. Ramos) for epidural steroid injections, which she
received on 18 January 2002. Plaintiff returned to full-duty work
on 21 January 2002.
Plaintiff testified that she did not tolerate the epidural
steroid injections well and experienced bilateral leg numbness
following the procedure. On 25 January 2002, plaintiff awoke to
leg weakness and shaking and was unable to walk. Plaintiff
testified she experienced the same symptoms following the epidural
injections. Plaintiff was admitted to the hospital for hersymptoms, but no physiological cause was found at that time.
Plaintiff was discharged from the hospital on 27 January 2002, but
was not released to work.
Dr. Ramos examined plaintiff on 28 January 2002, but did not
find that plaintiff's symptoms were directly related to the
epidural steroid injections given on 18 January 2002. Dr. Ramos
suggested that plaintiff might be suffering from a conversion
On 2 February 2002, plaintiff was again taken to the hospital
with uncontrollably shaking limbs and was examined by Dr. Michael
Reynolds (Dr. Reynolds), a neurologist. Dr. Reynolds also opined
that plaintiff's problems were likely caused by a psychological
reaction, possibly a conversion disorder.
Plaintiff was examined by Dr. Sue on 5 February 2002 and 12
February 2002. Plaintiff exhibited abnormal jerking motions during
both of these examinations. On 13 February 2002, plaintiff
followed up with Dr. Keith Willis (Dr. Willis), also a
neurologist. Dr. Willis opined that plaintiff had probable
hysterical gait disorder.
Plaintiff then sought treatment with a neuropsychologist, Dr.
John Rodenbough (Dr. Rodenbough) on four occasions between 20
February 2002 and 8 July 2002. Dr. Rodenbough opined that he
believed plaintiff's medical conditions developed first and any
subsequent psychological reactions were secondary.
On 14 March 2002, Dr. Ramos examined plaintiff for the last
time. Dr. Ramos declined to complete a Form 28U, as he believedthe form was more appropriately reviewed by Dr. Sue. On 21 March
2002, Dr. Sue signed a Form 28U reinstating plaintiff's total
disability benefits after an unsuccessful return to work.
Plaintiff filed the Form 28U and began receiving temporary total
benefits again on 1 April 2002. Plaintiff continued under Dr.
Sue's care until June 2002, when Dr. Sue retired.
Plaintiff then came under the care of Dr. Elaine R. Feraru
(Dr. Feraru) on 27 August 2002. Dr. Feraru administered a MMPI
personality test to plaintiff. Based on the results of the test
and the lack of objective neurologic findings, Dr. Feraru opined
that plaintiff had a somatization or conversion disorder.
Defendants filed a Form 33 request that plaintiff's claim for
continued compensation due to a failed trial return to work be
assigned for a hearing as to benefits due on 21 February 2001. In
an opinion and award dated 27 June 2003, the deputy commissioner
ordered defendants to continue to pay plaintiff temporary total
disability benefits. Defendants appealed to the Commission. The
Commission modified the deputy commissioner's opinion and award,
awarding temporary total disability from 17 August 2001 to 25
October 2001, temporary partial disability from 26 October 2001 to
25 January 2002, and ending all subsequent compensation. Plaintiff
We first note the applicable standard of review for appeals
from the North Carolina Industrial Commission. It is well
established that 'the Industrial Commission is the fact findingbody and . . . the findings of fact made by the Commission are
conclusive on appeal, . . . if supported by competent
evidence. . . . This is so even though there is evidence which
would support a finding to the contrary.' Hunter v. Perquimans
County Bd. of Educ
., 139 N.C. App. 352, 355, 533 S.E.2d 562, 564
(2000) (citation omitted). Therefore, the appropriate standard of
review by this Court is to determine only whether the Commission's
findings of fact are supported by competent evidence and whether
those findings indeed support the Commission's conclusions of law.
Plaintiff first contends that the Industrial Commission erred
in finding as fact that the Form 28U was signed in error. We
N.C. Gen. Stat. § 97-32.1 (2005) states that:
[A]n employee may attempt a trial return to
work for a period not to exceed nine months.
During a trial return to work period, the
employee shall be paid any compensation which
may be owed for partial disability pursuant to
G.S. 97-30. If the trial return to work is
unsuccessful, the employee's right to
continuing compensation under G.S. 97-29 shall
be unimpaired unless terminated or suspended
thereafter pursuant to the provisions of this
. To expedite reinstatement of an employee's compensation
pending a determination by the Commission of whether an employee's
return to work was unsuccessful, the Commission's rules provide
that an employee may file a Form 28U 'Request that Compensation be
Reinstated.' Jenkins v. Public Service Co. of N.C.
, 134 N.C. App.405, 411, 518 S.E.2d 6, 10 (1999) (citation omitted). The
determination of whether an employee's trial return to work was
unsuccessful is made by the Commission. Id
. When a properly
completed Form 28U is filed, the employer resumes payment of
compensation for total disability; however, if the Commission
determines that the trial return to work was not unsuccessful due
to the compensable injury, then the employer is entitled to a
credit for the sums paid pursuant to the Form 28U. Id
Here, plaintiff contends that the Commission erred in finding
that Dr. Sue's testimony indicated he signed the Form 28U in error.
A review of Dr. Sue's testimony shows that competent evidence
supports the Commission's finding, as Dr. Sue testified that
plaintiff's inability to work was not related to her original back
injury, but due to other conditions. The Form 28U requires a
certification by the treating physician that the employee was
unable to continue the trial return to work due to the injury for
which compensation has been paid. Therefore, competent evidence
supports the Commission's finding of fact.
Morever, the Commission ultimately found that plaintiff's
failed return to work was not due to her compensable injury.
Therefore, any error in the Commission's findings as to the Form
28U would not require reversal, as the Commission's conclusion on
the issue is ultimately determinative. See Jenkins
, 134 N.C. App.
at 412, 518 S.E.2d at 10. Plaintiff's assignment of error is
Plaintiff next contends the Industrial Commission erred in
concluding that plaintiff's presumption of total disability ended
on 17 December 2001. We disagree.
Plaintiff bases her contention on our case law holding that a
presumption of disability attaches in favor of an employee once a
Form 21 agreement is entered into by the parties. Plaintiff is
correct that our courts have consistently held that once a Form 21
agreement is entered into by the parties and approved by the
Commission, a presumption of disability attaches in favor of the
employee. Saums v. Raleigh Community Hospital
, 346 N.C. 760, 763,
487 S.E.2d 746, 749 (1997).
However, our Supreme Court has also considered the impact of
the filing of a later agreement on the presumption of disability.
In Saunders v. Edenton Ob/Gyn Ctr
., 352 N.C. 136, 139-40, 530
S.E.2d 62, 64 (2000), a Form 21 agreement to temporary total
disability was replaced by a Form 26 agreement to temporary partial
disability. The Supreme Court held that when a Form 21 agreement
to temporary total disability was revised by a Form 26 supplemental
agreement to temporary partial disability, the Form 26 agreement
terms were the final binding terms on the parties. Id
. at 140, 530
S.E.2d at 65. Saunders
Based on the terms of the Form 26 agreement,
the presumption that plaintiff was temporarily
partially disabled, and not totally disabled,
was created through plaintiff's agreement to,
and the Commission's approval of, those terms.
When plaintiff thereafter petitioned the
Commission for a hearing and claimed
entitlement to permanent total disability, a
status substantially different in economicimpact from partial disability, she bore the
burden of proving total disability.
. at 140, 530 S.E.2d at 64.
Here, plaintiff does not contest the finding of fact that a
Form 26 supplemental agreement was approved by the Commission on 17
December 2001, providing for temporary partial disability benefits
rather than temporary total disability benefits. The Commission
found as a result that the presumption of continuing temporary
total disability ended when the parties filed the Form 26.
Plaintiff is entitled to temporary partial disability compensation
after October 25, 2001 when she returned to work at a reduced
wage. As the presumption of total disability ended with the
filing of the Form 26, the Commission did not err in concluding
that [t]he approval of the Form 26 by the Commission on 17
December 2001 ended the presumption of total disability and
plaintiff received temporary partial disability. Plaintiff's
assignment of error is overruled.
Plaintiff finally contends that the Industrial Commission
erred in concluding that plaintiff is entitled to neither temporary
total disability nor temporary partial disability benefits
subsequent to 25 January 2002. Although the findings support the
Commission's conclusion that plaintiff was not entitled to
temporary total disability, we agree that the Commission erred in
finding plaintiff was not entitled to continued temporary partial
disability. The Form 26 agreement between the parties established an
ongoing presumption of 'temp[orary] partial disability,' and
plaintiff has the burden of rebutting that presumption in moving to
establish a claim for total disability. Saunders
, 352 N.C. at
141, 530 S.E.2d at 65-66.
We first review plaintiff's contention that the Commission
erred in finding plaintiff was not entitled to continued temporary
total disability. Here, as discussed supra
in Section III, the
Form 26 agreement approved by the Commission on 17 December 2001
established a presumption of temporary partial disability.
Plaintiff therefore bore the burden of rebutting the presumption of
partial disability in moving to establish her claim for total
disability. A review of the record shows that competent evidence
supports the Commission's finding that plaintiff failed to
establish that any total disability after October 25, 2001 is
related to her injury by accident. The Commission found that all
medical evidence indicated plaintiff's numbness, weakness, and
tremors were not related to her injury by accident. As plaintiff
failed to rebut the presumption that temporary partial
rather than temporary total
disability, existed, the Commission
properly concluded that plaintiff was not entitled to temporary
However, the Commission also found that plaintiff is not
entitled to compensation as of 25 January 2002 and subsequent
because her disability starting 25 January 2002 and continuing isnot related to the compensable low back condition. We hold that
the Commission's findings fail to support this conclusion.
, our Supreme Court
further held that when a Form
26 establishing temporary partial disability exists, in order to
rebut plaintiff's claim of ongoing partial disability, in the event
such issue arises, defendants have the burden of proving 'not only
that suitable jobs are available, but also that the plaintiff is
capable of getting one, taking into account both physical and
vocational limitations.' Saunders
, 352 N.C. at 141-42, 530
S.E.2d at 66 (citations omitted).
We find the case of Radica v. Carolina Mills
, 113 N.C. App.
440, 439 S.E.2d 185 (1994), instructive. In Radica
, the plaintiff
sustained a back injury and entered into an approved Form 26
agreement for temporary total disability in May. Id
. at 441, 439
S.E.2d at 187. The plaintiff was released to work with maximum
medical improvement in September, but continued to allege pain and
did not return to work. Id
. Medical evidence failed to reveal a
physiological cause for the plaintiff's pain, however. The
Commission found that the plaintiff's continued complaints of pain
were not causally related to the work injury, and denied additional
workers' compensation benefits following the plaintiff's release to
at 444-45, 439 S.E.2d at 188-89. This Court vacated the
Commission's order on the grounds that no evidence supported the
finding that the plaintiff retained any earning capacity on the
date of her release to return to work. Id
. at 447, 439 S.E.2d at
stated that a release to return to work does not equala finding that a plaintiff is no longer disabled, that is, capable
of earning the same wage prior to injury, and therefore no longer
entitled to workers' compensation. Id
further noted that
the plaintiff had met her initial burden of establishing her
disability through the Form 26 agreement previously approved by the
. Because the plaintiff had established disability
through the Form 26 agreement, and the defendant had failed to meet
its burden of showing that the plaintiff was capable of earning the
same wage earned prior to injury as of the date of release to
return to work, the defendant failed to overcome the presumption
that disability continued until 'the employee returns to work at
wages equal to those [s]he was receiving at the time [her] injury
. (citation omitted).
Similarly here, although the Form 26 agreement entered into by
the parties and approved by the Commission on 17 December 2001
destroyed the presumption of continued total disability, it
established a presumption of continued partial disability, which
defendants had the burden to rebut. The Commission's order is
devoid of any findings that plaintiff was able to return to work at
wages equal to those she was receiving at the time the injury
occurred. As plaintiff established a presumption of temporary
partial disability, and as no findings support the conclusion that
defendants overcame this presumption, we find the Commission erred
in terminating plaintiff's temporary partial disability as of 25
January 2002. See Radica
, 113 N.C. App. at 447, 439 S.E.2d at 190. For the foregoing reasons, we find no error in the
Commission's findings as to total disability, but find error in the
Commission's conclusions as to partial disability. We therefore
remand to the Commission for disposition in accordance with this
Affirmed in part, reversed and remanded in part.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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