Appeal by plaintiff from opinion and award entered 20 July
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 6 June 2006.
Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson and Fred
D. Poisson, Jr., for plaintiff-appellant.
Young, Moore & Henderson, P.A., by Zachary C. Bolen, for
Plaintiff Thomas E. Wright appeals from an opinion and award
of the North Carolina Industrial Commission concluding Wright was
not entitled to workers' compensation benefits because his claims
were barred by the statute of limitations found in N.C. Gen. Stat.
§ 97-47 (2005). Perez v. Am. Airlines/AMR Corp., 174 N.C. App.
128, 132, 620 S.E.2d 288, 291 (2005), disc. review improvidentlyallowed, ___ N.C. ___, 634 S.E.2d 887 (2006), controls the issues
in this case and requires that we reverse.
In July 2000, Wright, a high school graduate then in his mid-
forties, began working as a delivery driver for defendant Simpson's
Eggs, Inc. Wright's duties included palletizing cartons of eggs
according to store orders, loading the pallets onto a truck,
driving to the stores, and unloading the eggs.
On 4 September 2000, while making a delivery, Wright slipped,
fell from a loading dock, caught himself on a hand railing with his
left hand, but ultimately tumbled to the pavement, landing on his
buttocks. Wright saw a physician's assistant for his resulting
back injury on 7 September 2000, was treated with medication and
heat, and was taken out of work.
Wright's symptoms persisted, and he saw orthopedic surgeon Dr.
Jeffrey Daily on 13 September 2000. Dr. Daily changed Wright's
medication and ordered physical therapy. Wright later returned to
work on 26 September 2000 with restrictions. On 3 October 2000,
defendants filed a Form 60, admitting Wright's right to
compensation for the 4 September 2000 accident. On the same date,
defendants also filed a Form 28B, stating that Wright had returned
to work and the last compensation check was forwarded to him on 3
October 2000. The form noted, however, that "final medical" had
not been paid.
Wright's pain continued, and Dr. Daily referred Wright to
physiatrist Dr. John Welshofer. Dr. Welshofer ordered an MRI,which showed mild spinal stenosis at L2-3 and L3-4 and a slight
disc bulge at L5-S1 with a possible annular tear. On 23 November
2000, Dr. Welshofer released Wright with a 0% permanent partial
impairment rating and authorized him to return to work without
restrictions. On 15 March 2001, defendants filed a second Form
28B, stating that the last medical compensation was paid on 20
Wright's employment with Simpson's Eggs was terminated in June
2001 after he became depressed and stopped reporting to work.
Wright subsequently worked as a driver for several other companies
from January to July of 2002. Wright had additional back pain
problems, however, including an incident in Florida requiring an
ambulance to take him to a local hospital.
On 14 February 2003, after receiving additional treatment from
other practitioners, Wright filed a motion to reopen his claim
based upon a worsening of his condition. Following a hearing in
February 2004, Deputy Commissioner Morgan S. Chapman concluded that
Wright had failed to establish causation between his current
condition and his original compensable injury and that, in any
event, Wright's claims were time-barred under N.C. Gen. Stat. § 97-
Wright appealed to the Full Commission. The Commission
affirmed the deputy's opinion and award solely on the ground that
Wright's failure to file a claim within two years of the last
indemnity payment made pursuant to the Form 60 rendered his claimstime-barred under N.C. Gen. Stat. § 97-47. Wright timely appealed
to this Court.
Wright first argues that the Commission erred in applying the
two-year statute of limitations found in N.C. Gen. Stat. § 97-47.
Section 97-47, in pertinent part, provides that:
Upon . . . the application of any party
in interest on the grounds of a change in
condition, the Industrial Commission may
review any award . . . . No such review shall
. . . be made after two years from the date of
the last payment of compensation pursuant to
under this Article . . . .
This provision is "a statute of limitations which requires an
employee to apply for additional compensation on the grounds of a
change in condition within two years of the date on which the last
compensation was paid." Apple v. Guilford County
, 321 N.C. 98,
100-01, 361 S.E.2d 588, 590 (1987). This Court has clarified,
however, that "the 'award' referred to in this statute, which the
Industrial Commission may not review after two years from the date
of the last payment of compensation thereunder, is a final award
and . . . the statute does not apply to an interlocutory award."
Beard v. Blumenthal Jewish Home
, 87 N.C. App. 58, 60, 359 S.E.2d
261, 262 (1987) (internal citations omitted), disc. review denied
321 N.C. 471, 364 S.E.2d 918 (1988).
, this Court addressed the applicability of N.C. Gen.
Stat. § 97-47 in cases involving a Form 60 and held: "[W]e reject
defendant's argument that an employer's Form 60 payments constitutea final
award within the meaning of N.C. Gen.Stat. § 97-47." 174
N.C. App. at 131, 620 S.E.2d at 290. After noting that Beard
that N.C. Gen. Stat. § 97-47 does not apply to an award that
determines some aspects of an employee's claim, but does not
resolve permanent disability, id.
at 131-32, 620 S.E.2d at 290, the
Court explained with respect to a Form 60:
[T]he Form 60 filed by defendant does not
resolve the extent of plaintiff's permanent
disability. Indeed, like the Form 21
agreement at issue in Beard
, the Form 60 does
not mention permanent disability. At most,
the Form 60 payments were an interlocutory
award resolving the issue of compensability
but not the nature and extent of any
disability. The Form 60 payments of temporary
total disability compensation did not
constitute a final award contemplated by N.C.
Gen. Stat. § 97-47. Thus, the Commission did
not err in concluding that N.C. Gen. Stat. §
97-47 did not apply to bar plaintiff's claim
for further indemnity compensation.
Id. at 132, 620 S.E.2d at 291 (internal citations omitted). See
also Watts v. Hemlock Homes of the Highlands, Inc., 141 N.C. App.
725, 729, 544 S.E.2d 1, 3 ("By executing a Form 60 and paying
compensation pursuant thereto, a defendant admits only the
compensability of the employee's injury."), disc. review denied,
353 N.C. 398, 547 S.E.2d 431 (2001).
Defendants attempt to distinguish Perez. First, defendants
argue that the issue of permanent disability was resolved by Dr.
Welshofer's 0% permanent partial disability rating, pointing to the
Commission's finding of fact describing Dr. Welshofer's treatment.
Defendants' argument overlooks the fact that the Commission simply
recited Dr. Welshofer's opinion; the Commission itself never madeany finding regarding Wright's permanent disability. In any event,
defendants never explain how a finding regarding permanent
disability in 2005 could transform a Form 60 filed more than four
years earlier into a final award. Nor does the record contain any
indication that Wright ever agreed to this rating. Thus, as in
Perez, this case contains no final resolution of Wright's permanent
disability, whether through a finding of the Commission or
agreement by Wright. Dr. Welschofer's opinion cannot transform
defendants' otherwise interlocutory Form 60 into a final award.
Compare Wall v. N.C. Dep't of Human Res.: Div. of Youth Servs., 99
N.C. App. 330, 331, 393 S.E.2d 109, 110 (1990) (noting that since
the parties' "agreement was in settlement of plaintiff's claim for
permanent disability under the Workers' Compensation Act and was
approved by the Industrial Commission, it was a final award or
judgment of the Commission"), disc. review denied, 328 N.C. 98, 402
S.E.2d 430 (1991).
Defendants also suggest that their Form 28B renders Perez
inapplicable. Defendants do not, however, address the fact that
the defendant in Perez also filed a Form 28B stating the date of
the plaintiff's last indemnity compensation and last medical
compensation. 174 N.C. App. at 129-30, 620 S.E.2d at 289. We
therefore hold that Perez controls and reverse the Commission's
decision concluding that Wright's claims for indemnity compensation
were barred by N.C. Gen. Stat. § 97-47.
Wright also argues that, in any event, the Commission erred by
failing to consider whether he was entitled to additional medical
compensation under N.C. Gen. Stat. § 97-25.1 (2005). "The right to
medical compensation shall terminate two years after the employer's
last payment of medical or indemnity compensation unless, prior to
the expiration of this period, . . . the employee files with the
Commission an application for additional medical compensation which
is thereafter approved by the Commission . . . ." N.C. Gen. Stat.
§ 97-25.1. See McAllister v. Wellman, Inc.
, 162 N.C. App. 146,
149, 590 S.E.2d 311, 313 (2004) (noting that N.C. Gen. Stat. § 97-
25.1 imposes "'a two-year statute of limitations on reopening
claims for medical compensation'" (quoting John Richard Owen, The
North Carolina Workers' Compensation Act of 1994: A Step in the
Direction of Restoring Balance
, 73 N.C. L. Rev. 2502, 2510
Here, Wright received his last medical compensation payment on
20 February 2001 and filed his motion to reopen on 14 February
2003. Thus, Wright came within the two-year statute of limitations
provided in N.C. Gen. Stat. § 97-25.1, and the Commission erred by
failing to address his claims for additional medical compensation.
Defendants do not dispute the timeliness of Wright's claim for
additional medical compensation, but instead argue that we should
affirm the Full Commission's decision based on a lack of causation.
Defendants acknowledge that the Full Commission did not address
causation, but assert that the Commission's "intent to affirm thedeputy commissioner's decision [that Wright failed to establish
causation between his current condition and his original
compensable injury] is clear in the record."
This Court does not, however, speculate as to what the Full
Commission might have ruled had it decided to address an issue. We
review the Commission's actual opinion and award. "[T]he North
Carolina Industrial Commission is not an appellate court."
Vieregge v. N.C. State Univ.
, 105 N.C. App. 633, 639, 414 S.E.2d
771, 775 (1992). Consequently, the Commission may not merely
affirm or adopt the opinion and award of the deputy commissioner,
but, rather, must formulate its own opinion and award. See id.
640, 414 S.E.2d at 775; Joyner v. Rocky Mount Mills
, 92 N.C. App.
478, 482, 374 S.E.2d 610, 613 (1988). The Full Commission is "the
ultimate fact-finder" and, therefore, in the absence of any
findings or conclusions on the issue of causation by the Full
Commission, we may not affirm the decision of the deputy
commissioner. Adams v. M.A. Hanna Co.
, 166 N.C. App. 619, 624, 603
S.E.2d 402, 406 (2004). Accordingly, we remand to the Commission
so that it may address the question of causation and any other
issues relating to the merits of Wright's claims.
Reversed and remanded.
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).
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