Appeal by plaintiff from an opinion and award entered 17
January 2006 by the North Carolina Industrial Commission. Heard in
the Court of Appeals 6 December 2006.
Seth M. Bernanke for plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P., by James B. Black, IV, for
Robert Deem (plaintiff) appeals from an opinion and award of
the North Carolina Industrial Commission (Commission) entered 17
January 2006. For the reasons stated herein, we affirm the order
The Commission found that plaintiff severely injured his left
elbow in 1993 while working for a prior employer. As a result of
the 1993 injury, plaintiff developed reflex sympathetic dystrophy(RSD) in his left arm. Plaintiff received physical therapy and
pain management from Dr. Jeffrey Kneisl (Dr. Kneisl) of Carolinas
Medical Center, and treatment for psychological problems stemming
from his chronic pain and disability from Dr. J. Scott Wallace
(Dr. Wallace) of Eastover Psychiatric Group. By 1998,
plaintiff's pain had became controllable and his medication usage
had stabilized. Plaintiff sought to rejoin the work force in 1999.
Plaintiff was hired by the Adams Mark Hotel (Adams Mark) in
Charlotte on 26 August 1999 as a senior maintenance worker.
Plaintiff's primary duties were painting and supervision of other
painters, as well as minor mechanical, plumbing, and electrical
work. On 16 November 1999, plaintiff's left elbow was injured at
work when a board flew out from beneath an air shaft that was being
shifted and struck plaintiff.
Following the injury on 16 November 1999, plaintiff was
referred back to the physician who had treated him for the 1993
injury, Dr. Kneisl, for further evaluation. Plaintiff continued
working following the 16 November 1999 injury, but contacted Dr.
Kneisl for pain medication and began regular visits on 15 March
2000. Plaintiff also resumed visits to Dr. Wallace for
psychological problems. Plaintiff continued working with
In 2001, the maintenance manager who had hired plaintiff left
Adams Mark and plaintiff was terminated by a new hotel manager on
29 May 2001. On 27 August 2001, plaintiff was hired by Carolinas
Medical Center (CMC) in a light maintenance position. Defendantsfiled a Form 21 accepting the injury of plaintiff's elbow on 16
November 1999 as a compensable material reaggravation of the
preexisting elbow injury, and agreed that the period of time
between plaintiff's termination with Adams Mark and his hiring at
CMC was a period of total disability caused by the compensable
Plaintiff continued to struggle with pain and had difficulty
in working at CMC as a result. Dr. Kneisl provided increased
medication to enable plaintiff to continue to work and discussed
the possibility of surgery to remove hardware remaining from
plaintiff's original 1993 surgery which could potentially lessen
his pain. However, Dr. Kneisl also informed plaintiff that the
surgery could worsen plaintiff's RSD. Plaintiff elected to undergo
the surgery to remove some hardware previously affixed to his
The surgery performed on 21 November 2002 was unsuccessful and
exacerbated plaintiff's pain, and plaintiff has been unable to work
since the surgery. The Commission found that plaintiff was
temporarily totally disabled and ordered defendants to continue to
pay the weekly disability compensation agreed upon in the Form 21
agreement, to pay for all medical treatment for plaintiff's left
arm resulting from the 16 November 1999 injury, and for plaintiff's
psychiatric treatment from 21 November 2002. Plaintiff appeals
from this order.
We first note the well-settled standard of review for appeals
from the North Carolina Industrial Commission. '[I]n reviewing a
decision of the Commission, this Court is limited to reviewing
whether any competent evidence supports the Commission's findings
of fact and whether the findings of fact support the Commission's
conclusions of law.' Gay-Hayes v. Tractor Supply Co
., 170 N.C.
App. 405, 407, 612 S.E.2d 399, 401, disc. review denied
, 359 N.C.
851, 619 S.E.2d 505 (2005) (citations omitted). Such findings
supported by competent evidence are conclusive on appeal, even if
there is plenary evidence for contrary findings. Id
commission is the sole judge of the credibility of the witnesses
and the weight to be given their testimony.' Avery v. Phelps
, ___ N.C. App. ___, ___ 626 S.E.2d 690, 696 (2006)
(citation omitted). 'An appellate court does not have the right
to weigh the evidence and decide the issue on the basis of its
weight. The court's duty goes no further than to determine whether
the record contains any evidence tending to support the finding.'
Allen v. SouthAg Mfg
., 167 N.C. App. 331, 334, 605 S.E.2d 209,
211-12 (2004) (citations omitted).
Plaintiff first contends the Commission erred in finding
plaintiff's need for psychiatric and psychological treatment
compensable only beginning with plaintiff's surgery 21 November
2002. We disagree.
The Commission found, based on the totality of [the]
evidence, including Dr. Wallace's medical notes before and afterNovember 16, 1999, that plaintiff's psychological condition was not
aggravated by the November 16, 1999 accident until the hardware
removal of November 21, 2002.
Dr. Wallace testified that it was his opinion that the
physical injury suffered by [plaintiff] to his left elbow in
November of 1999 resulted in a material aggravation of his
preexisting psychiatric condition[.] On cross-examination,
however, Dr. Wallace stated that plaintiff's medication levels had
been constant since October of 1998, and that he had advised
plaintiff to go back into therapy before he reinjured his elbow in
1999. Dr. Wallace also stated that plaintiff had appeared pretty
good[,] and not nearly as sad as he had been[,] with his affect
about as bright as I've seen it[,] in plaintiff's February visit
following the accident, according to his notes regarding plaintiff.
On cross-examination, Dr. Wallace testified when asked when the
material exacerbation of plaintiff's injury occurred, that, it's
been a chronic process, you know, through the -- through his
recovery process and further surgeries and other medical treatments
since that time because it is an ongoing thing. Although there is
evidence to the contrary, the deposition testimony contains
evidence tending to support the Commission's findings of fact. See
, 167 N.C. App. at 334, 605 S.E.2d at 211-12. We therefore
overrule this assignment of error.
Plaintiff next contends that the Commission erred in finding
that plaintiff is not permanently and totally disabled. We
A disability is defined as incapacity because of injury to
earn the wages which the employee was receiving at the time of
injury in the same or any other employment. N.C. Gen. Stat. §
97-2(9) (2005). A loss of wage-earning capacity may . . . be
total, in which case the employee is entitled to benefits pursuant
to N.C. Gen.Stat. § 97-29[.] Knight v. Wal-Mart Stores, Inc
N.C. App. 1, 10, 562 S.E.2d 434, 441 (2002). If the loss of
wage-earning capacity is total, the employee is entitled to receive
benefits for as long as the total loss of wage-earning capacity
lasts with no limitation as to duration. Id
[A]s to claims involving a loss of
wage-earning capacity, it is important to
recognize that, although the Act does not
define the terms temporary or permanent,
an incapacity to earn wages (whether total
under N.C. Gen. Stat. § 97-29 or partial under
N.C. Gen. Stat. § 97-30) is often further
categorized as either temporary or
. at 11, 562 S.E.2d at 441-42 (citations omitted). In Effingham
v. Kroger Co
., 149 N.C. App. 105, 561 S.E.2d 287 (2002), this Court
held that an employee may seek a determination of . . .
entitlement to permanent disability under [N.C. Gen. Stat.] §§
97-29, 97-30, or 97-31, only after reaching maximum medical
. at 114, 561 S.E.2d at 294.
The Commission noted that there was conflicting evidence as to
whether plaintiff was totally and permanently disabled. TheCommission found that plaintiff was temporarily totally disabled
and that plaintiff has alternative treatment modalities available
and . . . is not permanently totally disabled at this time.
We first note that the record reveals no testimony that
plaintiff had reached maximum medical improvement, and that the
Commission did not find that plaintiff had reached maximum medical
improvement. Further, Dr. Thomas Carlton (Dr. Carlton) testified
that following an examination of plaintiff, he believed that an
interdisciplinary pain management and pain rehabilitation program
would help him . . . [and would] provide some relief or try to
lessen his disability[.] Dr. Carlton stated that plaintiff had
previously successfully completed the program following his 1993
injury. Although Dr. Kneisl opined that plaintiff was not
employable, he also stated that it was possible that plaintiff
would be able to return to work if the pain in his left arm
lessened. Leanna Hollenback, a rehabilitation consultant, also
opined that she believed plaintiff was unable to work both now and
in the future, but agreed that if plaintiff's pain lessened her
opinion would change. As plaintiff had not reached maximum medical
improvement and as competent evidence supports the Commission's
findings, we overrule this assignment of error. See Allen
N.C. App. at 334, 605 S.E.2d at 211-12.
Plaintiff next contends that the Commission erred in finding
that plaintiff could participate in vocational services. We
disagree. Plaintiff appears to premise his argument in this assignment
of error upon successfully establishing that the trial court erred
in finding that he was not permanently and totally disabled. As
, the Commission did not err in this finding. For
the reasons discussed in the previous assignment of error, the
trial court did not err in finding that plaintiff could participate
in vocational services when the trial court had previously found
that the comprehensive interdisciplinary program would provide
plaintiff relief, help effect a cure, or lessen his disability.
As competent evidence supports this finding, the Commission did not
err in the conclusion that plaintiff was entitled to vocational
rehabilitation services. See Gay-Hayes
, 170 N.C. App. at 407, 612
S.E.2d at 401. This assignment of error is overruled.
Plaintiff next contends that no competent evidence supported
the Commission's finding that plaintiff should participate in a
pain management program, and in a related assignment of error that
the Commission abused its discretion in finding that plaintiff had
not shown good cause to receive further evidence. We disagree.
We first address plaintiff's contention that the Commission
abused its discretion in failing to receive further evidence.
N.C. Gen. Stat. § 97-85 (2005) states in pertinent part that:
If application is made to the Commission
within 15 days from the date when notice of
the award shall have been given, the full
Commission shall review the award, and, if
good ground be shown therefor, reconsider the
evidence, receive further evidence, rehear theparties or their representatives, and, if
proper, amend the award[.]
. The Commission's power to receive additional evidence is a
plenary power 'to be exercised in the sound discretion of the
Commission.' Moore v. Davis Auto Service
, 118 N.C. App. 624, 629,
456 S.E.2d 847, 851 (1995) (citation omitted). '[W]hether good
ground be shown therefore in any particular case is a matter
within the sound discretion of the Commission, and the Commission's
determination in that regard will not be reviewed on appeal absent
a showing of manifest abuse of discretion.' Id
Here, the Commission declined to hear additional evidence,
specifically an additional response by Dr. Kneisl regarding
plaintiff's participation in a pain management program, which was
discussed at length in Dr. Kneisl's deposition reviewed by the
deputy commissioner. We find no abuse of discretion by the
Commission in finding that good cause was not shown to receive this
The evidence properly before the Commission was competent to
support the Commission's finding that plaintiff should participate
in a pain management program under Dr. Carlton. The Commission
found that Dr. T. Kern Carlton's treatment recommendation will
provide plaintiff relief, help effect a cure, or lessen his
disability. The Commission further concluded that [p]laintiff is
ordered to treat with Dr. T. Kern Carlton in the interdisciplinaryprogram recommended by Dr. Carlton and is entitled to have
Defendants provide vocational rehabilitation services.
As discussed supra
, the record reveals that Dr. Carlton opined
an interdisciplinary pain management and pain rehabilitation
program would help [plaintiff] . . . [and would] provide some
relief or try to lessen his disability[.] Although Dr. Kneisl
opined that he was not sure that there would be another pain
management group that would take plaintiff or would have something
different to offer, he also stated that he thought it was
worthwhile offering legitimate pain management techniques from a
different personality[.] As competent evidence supports the
finding of fact and conclusion of law regarding plaintiff's
participation in the pain management program, this assignment of
error is overruled. See Gay-Hayes
, 170 N.C. App. at 407, 612
S.E.2d at 401.
Plaintiff next contends the trial court erred in failing to
use the correct statutory method of calculation to revise the
average weekly wage based on plaintiff's post-injury earnings. We
Where the employer and employee have entered into a Form 21
agreement, stipulating the average weekly wages, and the Commission
approves this agreement, the parties are bound to its terms absent
a showing of error in the formation of the agreement. McAninch v.
Buncombe County Schools
, 347 N.C. 126, 132, 489 S.E.2d 375, 378-79
(1997). 'Thus, where there is no finding that the agreementitself was obtained by fraud, misrepresentation, mutual mistake, or
undue influence, the Full Commission may not set aside the
agreement, once approved.' Id
. at 132, 489 S.E.2d at 379
Here, the Commission found that a Form 21 agreement was
approved on February 6, 2002. The Form 21 agreement stipulates an
average weekly wage of $451.66, yielding a compensation rate of
$301.10. A review of the record shows that in the approved Form
21 agreement, the parties stated plaintiff's weekly wage at $451.66
and further listed as a matter agreed upon by the parties that
plaintiff's compensation was $301.10 weekly. The Commission found
that there was no fraud, misrepresentation, undue influence, or
mutual mistake in the Form 21 agreement and competent evidence
supports this finding. As the parties are bound by the approved
Form 21 agreement, we overrule this assignment of error.
Plaintiff next contends that the Commission erred in finding
and concluding that plaintiff was not entitled to a ten percent
penalty pursuant to N.C. Gen. Stat. § 97-12.
N.C. Gen. Stat. § 97-12 (2005) requires: When the injury or
death is caused by the willful failure of the employer to comply
with any statutory requirement or any lawful order of the
Commission, compensation shall be increased ten percent (10%).
. An act is considered willful 'when there exists a deliberate
purpose not to discharge some duty necessary to the safety of the
person or property of another, a duty assumed by contract orimposed by law.' Brown v. Kroger Co
., 169 N.C. App. 312, 318, 610
S.E.2d 447, 451, appeal dismissed
, 359 N.C. 850, 619 S.E.2d 403
(2005) (citations omitted).
Here, the sole evidence that a safety violation occurred was
the deposition of Raymond Bolyston (Bolyston), an expert offered
by plaintiff. Bolyston opined that although no OSHA citation was
issued, in his opinion, the failure to properly brace the shaft
being moved, although temporary, violated OSHA secure storage
regulations. Bolysten further opined that the employees involved
may not have understood and comprehended the significance of the
insecure storage. The Commission indicated that it reviewed the
deposition of Bolysten, but found that defendants did not willfully
violate the statue. As the Commission is the sole judge of the
credibility of the witnesses, we find no error in the Commission's
finding and conclusion. Avery
, ___ N.C. App. at ___, 626 S.E.2d at
Plaintiff finally contends that there is no competent evidence
to find that defendants defended the claim with reasonable grounds
and for the Commission to conclude that plaintiff is not entitled
to attorney's fees.
N.C. Gen. Stat. § 97-88.1 (2005) states that, [i]f the
Industrial Commission shall determine that any hearing has been
brought, prosecuted, or defended without reasonable ground, it may
assess the whole cost of the proceedings including reasonable fees
for defendant's attorney or plaintiff's attorney upon the party whohas brought or defended them. Id
. 'The decision of whether to
make such an award, and the amount of the award, is in the
discretion of the Commission, and its award or denial of an award
will not be disturbed absent an abuse of discretion.' Clark v.
, ___ N.C. App. ___, ___, 623 S.E.2d 293, 299 (2005)
(citation omitted). 'An abuse of discretion results only where a
decision is manifestly unsupported by reason or . . . so arbitrary
that it could not have been the result of a reasoned decision.'
. (citation omitted).
Plaintiff fails to demonstrate that the Commission's decision
is manifestly unsupported by reason. We therefore overrule this
assignment of error.
As competent evidence supports the Commission's findings of
fact and conclusions of law, we affirm the opinion and award.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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