v
.
N.C. Industrial Commission
I.C. No. 047860
STEELCASE, INC.,
Employer;
and
LIBERTY MUTUAL INSURANCE
Defendants.
Ganly & Ramer, by Thomas F. Ramer, for plaintiff-appellant.
Van Winkle Buck Wall Starnes & Davis by Allan R. Tarleton for
defendant-appellee.
LEVINSON, Judge.
Plaintiff (Lula Mills) appeals an opinion and award of the
North Carolina Industrial Commission awarding her temporary total
disability, permanent partial disability for six weeks, medical
expenses, attorney fees and costs. We affirm.
The record establishes the following pertinent facts: On 21
September 1998, plaintiff injured her lower back while working as
a touch-up inspector at Steelcase Inc., a company that
manufacturers office furniture. At the time of her injury,plaintiff attempted to keep a desk from falling off a conveyor
belt. Despite the injury, plaintiff continued to work the rest of
the day. The next day, plaintiff reported that she was unable to
continue working. She was sent by defendant's management to St.
Joseph's Urgent Care. Plaintiff was diagnosed with a lumbar sprain
and given limited duty work with lifting restrictions. Plaintiff
was subsequently evaluated in defendant's medical department by Dr.
David Bates, an occupational physician. He diagnosed her with a
lumbar strain and provided her with limited duty work with lifting
and bending restrictions. Plaintiff continued under the care of
Dr. Bates, who directed limited duty work and physical therapy.
Dr. Bates released plaintiff to full-duty work in November 1998.
However, upon re-examination on 3 December 1998, Dr. Bates noted
that she continued to have residual right hip tightness and
recommended additional physical therapy if plaintiff's condition
did not improve. Defendant ceased payment of plaintiff's medical
treatment as of 15 February 1999. Plaintiff was advised by
defendants to apply for short term disability; she received such
benefits in the amount of $400.00 per week.
On 3 March 1999 plaintiff was examined by Dr. Donald Mullis,
an orthopedic surgeon. Dr. Mullis diagnosed her with a “lumbar
strain and a right hip greater trochanteric bursitis problem.” Dr.
Mullis also diagnosed plaintiff with degenerative disc disease in
the “L5-S1” region of her back. Dr. Mullis re-evaluated plaintiff
on 24 March 1999 and indicated that she had improved but continued
to experience right hip problems. Plaintiff continued to have back and hip complaints and
returned to the Steelcase medical department five times between
March and October 1999. A return visit to Dr. Mullis on 21
December 1999 resulted in a diagnosis of a “lumbar strain muscle
ligament type injury.” Dr. Mullis removed plaintiff from
employment temporarily, and released her to full unrestricted duty
in mid-January 2000. Also in mid-January, plaintiff returned to
defendant's medical department and was re-evaluated by Dr. Bates.
Bates cleared her return to work, indicating that her back pain was
resolving. After plaintiff returned to work in January of 2000,
she was moved to a new job in the finishing department performing
“scuffing.” This required her to sand tall bookcase units that
came down a “trolley like conveyor.” After approximately three or
four days, plaintiff again experienced increasing problems in her
low back and right hip.
On 30 May 2000, plaintiff returned to Dr. Mullis for
evaluation and treatment. Plaintiff had “some back and right leg
pain” and “paralumbar muscle spasms.” Dr. Mullis removed plaintiff
from work until re-evaluation on 5 June 2000. On 5 June, Dr.
Mullis placed plaintiff on light-duty work with lifting and bending
restrictions. Plaintiff's last day of work for defendant was 26
May 2000.
In June 2000, plaintiff completed a short-term disability
application with Liberty Mutual Insurance. Thereafter, on 17 July
2000, Dr. Mullis reported that plaintiff's muscle spasms had
remitted and released her to return to work to “do light-duty, thefirst three weeks no more than 10 lbs. and after three weeks
gradually work back into her normal routine.” After an 8 August
2000 re-examination by Dr. Mullis, plaintiff was noted to suffer
from some “slight paralumbar muscle spasms which is to be expected
with the degenerative disc problem that she had.” Dr. Mullis
discharged her at that time and recommended full-duty release to
return to work. However, upon re-examination by defendant's
occupational physician, Dr. Bates, on 3 August 2000, Bates
suggested that plaintiff not engage in “repetitive bending or
stooping.”
Plaintiff was subsequently treated by Dr. James Hoski, a Board
certified surgeon. Dr. Hoski diagnosed plaintiff with a “lumbar
sprain/strain with chronic low back pain” and recommended that
plaintiff engage in a course of physical therapy. At that time, he
also indicated plaintiff was capable of working with occasional
bending and some lifting restrictions. According to Dr. Hoski,
plaintiff's MRI, long-term pain, and age “could be consistent” with
degenerative disc disease. Dr. Hoski also testified that it would
be appropriate for plaintiff to be placed out of work. Upon
completion of further physical therapy, plaintiff returned to see
Dr. Hoski on 15 November 2000, at which time she continued to have
“numbness and tingling in her right leg [;] limited lumbar flexion,
extension[;]and right paraspinal muscle spasms.” Dr. Hoski
nonetheless returned her to work with lifting and bending
limitations. Finally, Dr. Hoski testified that “within areasonable degree of medical probability” her current symptoms and
condition were related to the 1998 injury.
Plaintiff was granted Social Security disability benefits
beginning November 2000. Plaintiff testified that she did not seek
additional employment due to her age and physical limitations.
Specifically, plaintiff testified that after being released by Dr.
Hoski in November 2000, she did not attempt to seek new employment
“because of the [work] restrictions” she was given. In May 2001,
consistent with defendant's policy concerning employees who were
out of work for one year, plaintiff was notified of an impending
termination. However, after plaintiff contacted defendant's Human
Resources (HR) Manager, plaintiff was offered a project that would
last approximately six months; thereafter, the HR manager
explained, Steelcase “would evaluate her situation to see if her
restrictions had changed.” Plaintiff agreed to this arrangement.
However, prior to returning to work, plaintiff notified the HR
Director that she needed to undergo a non-work related medical
procedure on her thyroid. After plaintiff's unrelated medical
procedure, she was terminated.
By an opinion and award filed 20 May 2005, Deputy Commissioner
Ronnie Rowell awarded plaintiff: (1) temporary total disability
from 21 December 1999 through 13 January 2000; (2) permanent
partial disability at two percent for six weeks; (3) medical
expenses; and (4) attorney's fees and costs. The Full Commission
affirmed the opinion and award of the deputy Commissioner, and
modified it to the extent it awarded plaintiff additional temporarytotal disability from 26 May 2000 through 15 November 2000.
Plaintiff appeals.
“The standard of appellate review of an opinion and award of
the Industrial Commission is well established. Our review is
limited to a determination of (1) whether the Commission's findings
of fact are supported by any competent evidence in the record; and
(2) whether the Commission's findings justify its legal
conclusions.” Aaron v. New Fortis Homes, Inc., 127 N.C. App. 711,
714, 493 S.E.2d 305, 306 (1997) (quotation marks omitted). “The
findings of fact made by the Commission are conclusive upon appeal
when supported by competent evidence, even when there is evidence
to support a finding to the contrary.” Plummer v. Henderson
Storage Co., 118 N.C. App. 727, 730, 456 S.E.2d 886, 888 (1995)
(citation omitted). “[T]his Court is 'not at liberty to reweigh
the evidence and to set aside the findings . . . simply because
other . . . conclusions might have been reached.'” Baker v. City
of Sanford, 120 N.C. App. 783, 787, 463 S.E.2d 559, 562 (1995)
(quoting Rewis v. Insurance Co., 226 N.C. 325, 330, 38 S.E.2d 97,
100 (1946)). Moreover, “[i]n weighing the evidence the Commission
is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony[.]” Plummer, 118 N.C. App.
at 730-31, 456 S.E.2d at 888 (citation omitted).
In Plaintiff's first argument on appeal, she contends that the
Full Commission erred by denying her motion to receive additional
evidence of documents concerning her award of Social Securitydisability benefits. Plaintiff asserts that this evidence would
have corroborated her testimony regarding the Social Security.
N.C. Gen. Stat. § 97-85 (2005) provides in pertinent part that
“[i]f 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 .
. . receive further evidence . . . .” Rule 701(6) of the Workers'
Compensation Rules provides that “[n]o new evidence will be
presented to or heard by the Full Commission unless the Commission
in its discretion so permits.” Workers' Compensation Rules of the
North Carolina Industrial Commission, Rule 701(6). We review the
Commission's decision of whether to consider new evidence under an
abuse of discretion standard. See Keel v. H & V Inc., 107 N.C.
App. 536, 542, 421 S.E.2d 362, 366-67 (1992)(“[T]he powers granted
the Commission to review the award and to receive additional
evidence are plenary powers to be exercised in the sound discretion
of the Commission. Whether such good ground has been shown is
discretionary and will not be reviewed on appeal absent a showing
of manifest abuse of discretion.”); see also Pittman v.
International Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705,
708 (1999)(“[I]n exercising its discretion to receive additional
evidence a court should consider all the circumstances of the case.
. . .”). “Abuse of discretion exists when 'the challenged actions
are manifestly unsupported by reason.'” Barnes v. Wells, 165 N.C.
App. 575, 580, 599, S.E.2d 585, 589 (2004) (quoting Blankenship v.Town and Country Ford, Inc., 155 N.C. App. 161, 165, 574 S.E.2d
132, 134 (2002)).
Here, plaintiff has neither articulated what the Social
Security documents contained, nor submitted them to this Court for
consideration. Secondly, while plaintiff contends the information
would have corroborated plaintiff's testimony concerning her
receipt of social security benefits, the Commission made a finding
of fact that she received Social Security benefits. In short, we
are unpersuaded the Commission abused its discretion in precluding
consideration of the documents, and plaintiff has not demonstrated
why the admission of the documents would have made a difference in
the Commission's award. This assignment of error is overruled.
In plaintiff's next argument, she contends that finding of
fact 22 is inconsistent with findings of fact 23, 26, and 27, and
conclusions of law 2 and 3. These findings of fact follow:
22. At the time Dr. Hoski released Plaintiff
to return to work in November 2000, Plaintiff
was receiving short-term disability.
Thereafter, Plaintiff filed for and was
granted social security disability. From May
26, 2000 until May 2001, Plaintiff received
$19,099.98 in short-term disability benefits
and $8,849.33 in long-term disability
benefits.
23.Plaintiff last worked for
Defendant-Employer on May 26, 2000. Plaintiff
has not returned to work for
Defendant-Employer following May 26, 2000, nor
has Plaintiff returned to work for any other
employer following May 26, 2000. Plaintiff
has not presented any evidence that she has
actively engaged in any job search after the
November 15, 2000 release to return to work or
attempted to find other employment, but has
been unsuccessful due to physical limitationsresulting from her September 21, 1998 work
injury.
. . . .
26. As a direct and proximate result of her
September 21, 1998 compensable back injury
Plaintiff was incapable of working from
December 21, 1995 until January 13, 2000, and
from May 26, 2000 until November 15, 2000.
27. Plaintiff's disability as a result of her
work-related injury by accident resolved by
November 15, 2000. As a result of her
compensable injury, Plaintiff sustained a two
percent permanent partial impairment to her
back.
The relevant conclusions of law were:
2. As a direct and proximate result of her
September 21, 1998 compensable back injury,
Plaintiff was disabled from work from December
21, 1999 until January 13, 2000, and from May
26, 2000 until November 15, 2000. N.C. Gen.
Stat. § 97-2(9).
3. As a direct and proximate consequence of
Plaintiffs September 21, 1998 compensable back
injury she is entitled to temporary total
disability compensation benefits at a rate of
$327.00 per week from December 21, 1999 until
January 13, 2000, and from May 26, 2000 until
November 15, 2000. N.C. Gen. Stat. § 97-29.
Plaintiff contends that paragraph 22, finding that she
received Social Security disability benefits, implies that she is
totally unable to work. Thus, plaintiff contends, she should not
have been required to search for alternative employment as the same
would be have been a futile endeavor. This argument lacks merit.
In Ramsey v. Southern Industrial Constructors Incorporated, __
N.C. App. __, __, 630 S.E.2d. 681, 692 (2006), plaintiff argued
that the Commission erred by failing to take his receipt of SocialSecurity disability into consideration before finding that it would
not have been futile for him to seek alternative employment. In
addressing plaintiff's argument, this Court articulated that:
'[E]vidence Plaintiff received payments
pursuant to an employer-funded disability plan
is not evidence Plaintiff is disabled within
the meaning of the Workers' Compensation Act
unless the evidence shows those payments were
made because Plaintiff was incapable, due to
her carpel tunnel syndrome [work-related
injury], of earning wages she had earned
before this injury in the same or any other
employment.'
Id. at __, 630 S.E.2d. at 693 (quoting Demery v. Perdue Farms,
Inc., 143 N.C. App. 259, 266-67, 545 S.E.2d 485, 491 (2001)). This
Court further noted that the only record evidence regarding
plaintiff's Social Security disability benefits consisted of the
fact that plaintiff acknowledged receipt of the same. Accordingly,
this Court ruled that the evidentiary showing failed to meet the
requirements of Demery, and “[i]n any event, the evidence-limited
to a bare statement regarding receipt of benefits-certainly did not
compel the Commission to conclude that plaintiff met his burden of
proving total disability.” Ramsey, __ N.C. App. at __, 630 S.E.2d.
at 693.
In the instant case, on direct examination of plaintiff, the
following evidence was presented that concerning her receipt of
Social Security disability:
Q: And you're currently receiving Social
Security disability?
A: Yes.
Q: And this is due to your degenerative disc disease?
A: It was - it_
Q: And your thyroid problem?
. . . .
Q: Does- Is your social security disability due to your-
in part or in any way, due to your thyroid
problem?
A: Not that I know of. I don't think so.
Additionally, the Commission made the following findings of fact,
which are binding on appeal. See Johnson v. Herbie's Place, 157
N.C. App. 168, 180, 579 S.E.2d 110, 118 (2003)(findings of fact not
challenged on appeal are binding on this Court).
14. . . . Dr. Mullis also informed Plaintiff
that she had degenerative disk disease in the
L5-S1 region of her back, which may be the
cause of her lower back and right hip pain.
. . . .
18. Plaintiff last treated with Dr. Mullis on
August 31, 2000. Plaintiff reported that she
was having problems with her lower back and
right buttock. Dr Mullis noted that this pain
was related to her degenerative disk disease
and advised her the best thing she could do
would be to get back to work.
We conclude, consistent with Ramsey, that the Commission was
not compelled to conclude that plaintiff's receipt of Social
Security disability benefits made her totally disabled for purposes
of the Workers Compensation Act. The record does not show that the
social security payments were made because plaintiff was incapable,
due to her work-related injury, of “earning wages she had earned
before this injury in the same or any other employment.” Ramsey,
__ N.C. App. at __, 630 S.E.2d. at 693. Instead, the testimony
revealed that plaintiff was receiving Social Security disabilitydue to any variety of causes: (1) degenerative disc disease; (2)
back injury; and/or (3) thyroid condition. The relevant
assignments of error are overruled.
In plaintiff's next argument, she contends that the trial
court erred in making finding of fact 24 because it did not
determine the rate of pay, if any, the offered position by
defendants would pay so as to permit evaluation of plaintiff's
right to temporary partial disability under either N.C. Gen. Stat.
§§ 97-30 or 97-31 (2005). We disagree.
It is well-established that a plaintiff in a workers'
compensation claim is required to prove “that he is unable to earn
the same wages he had earned before the injury, either in the same
employment or in other employment.” Russell v. Lowes Prod.
Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)
(citations omitted). This burden can be met, inter alia, by the
production of evidence that he has obtained other employment at a
wage less than he earned prior to the injury. Id. However, as
plaintiff concedes in her brief, “[t]here is absolutely no evidence
of the rate of pay of such position to permit the Commission to
determine or weigh an award of benefits pursuant to N.C.G.S. § 97-
30.” In the absence of such evidence, and considering that
plaintiff had the burden of proof on this issue, the relevant
assignments of error are overruled.
We have evaluated plaintiff's remaining argument on appeal and
conclude that it is without merit.
Affirmed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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