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Johnson v. Southern Tire Sales

North Carolina Court of Appeals
Aug 1, 2002
152 N.C. App. 323 (N.C. Ct. App. 2002)

Opinion

No. COA01-917

Filed 20 August 2002

1. Workers' Compensation — refusal of suitable employment — sufficiency of evidence

The Industrial Commission did not err in a workers' compensation action by concluding that plaintiff had cooperated with vocational rehabilitation where defendants contended that plaintiff refused suitable employment but produced no evidence of any actual refusal. The only evidence defendants offered to support plaintiff's ability to obtain employment was the opinion of a vocational rehabilitation specialist, but the Industrial Commission specifically found that it gave more weight to a doctor's opinion about plaintiff's limitations.

2. Appeal and Error — assignment of error — lack of supporting authority

An assignment of error without supporting authority was deemed abandoned.

3. Workers' Compensation — temporary total disability — evidence of continued disability

The Industrial Commission did not err in a workers' compensation case by awarding plaintiff temporary total disability after maximum medical improvement where there was competent evidence to support a finding that plaintiff remained disabled.

4. Workers' Compensation — objection at hearing — no ruling

There was no prejudicial error in a workers' compensation proceeding where the Industrial Commission did not rule specifically on an objection. However, it is the better practice for the Commission to always formally enter its rulings on objections.

5. Workers' Compensation — medical expenses — time limits

The Industrial Commission's conclusion that defendants should pay all of plaintiff's related medical expenses, as required by N.C.G.S. § 97-25.1, was not overly broad in that it did not set a time limit. The employer had not made its last medical compensation payment and the statute of limitations had not begun to run. Furthermore, the parameters of N.C.G.S. § 97-2(19) were inherent in the Industrial Commission's award and defendants were not required to pay more than that statute provides.

Appeal by defendants from opinion and award entered 6 February 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 20 May 2002.

Schiller Law Firm, L.L.P., by Marvin Schiller and David G. Schiller, for plaintiff-appellee.

Young Moore and Henderson P.A., by Joe E. Austin, Jr. and Dawn Dillon Raynor, for defendant-appellants.


Willie B. Johnson (plaintiff) sustained a compensable injury to his back while employed at Southern Tire Sales and Service on 24 October 1996. Plaintiff was using a long iron pry bar while replacing a lower ball joint when the pry bar slipped. Defendants issued a form 63 payment of compensation and did not deny the claim within the 120-day time limitation provided in N.C. Gen. Stat. § 97-18 (1999). Plaintiff continued to work without seeking medical treatment until 27 November 1996, when plaintiff saw Dr. Bernard Bennett (Dr. Bennett).

Dr. Michael Gwinn (Dr. Gwinn) saw plaintiff on 12 March 1997. Dr. Gwinn stated plaintiff suffered from chronic mechanical back pain related to lumbar degenerative disk disease. After a meeting with plaintiff on 1 May 1998, Dr. Gwinn testified the pain plaintiff reported was greater than the objective tests would indicate. Dr. Gwinn discontinued his treatment of plaintiff on 1 May 1998, stating he could no longer treat plaintiff due to plaintiff's attorney's involvement. Plaintiff returned to Dr. Bennett.

Plaintiff began treatment with Dr. Charles A. Cook (Dr. Cook) on 13 July 1998. Dr. Cook testified that on this date plaintiff could not perform any physical activity that would require standing or sitting for periods of more than twenty minutes, bending or squatting, or lifting more than five pounds. Dr. Cook continued to be plaintiff's treating physician through the time of the hearing.

Plaintiff saw Dr. William Lestini (Dr. Lestini), a spinal surgeon, on 6 October 1998. Dr. Lestini made a presumptive diagnosis of symptomatic painful disc disease.

Plaintiff began meeting with Ronald Alford (Alford), a certified vocational rehabilitation specialist, in August 1997. Alford testified plaintiff repeatedly insisted he could not return to work, not only to Alford, but also to potential employers with whom plaintiff met. Alford secured approximately twelve job leads for plaintiff, but plaintiff was not offered a job by any of these employers.

A deputy commissioner entered an opinion and award in favor of defendants on 27 April 2000. The Industrial Commission reversed the deputy commissioner's decision in an opinion and award entered on 6 February 2001. The Industrial Commission awarded plaintiff ongoing total disability, all medical expenses incurred by plaintiff as a result of the 24 October 1996 injury, and approved Dr. Cook as plaintiff's treating physician. Defendants appeal from this opinion and award.

I.

Defendants first argue the Industrial Commission erred in concluding that plaintiff cooperated with vocational rehabilitation and is entitled to ongoing total disability. Defendants contend the Industrial Commission did not consider all of the pertinent and relevant evidence. We disagree.

On an appeal from an opinion and award from the Industrial Commission, the standard of review for this Court "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 conclusions of law." Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). "The facts found by the Commission are conclusive upon appeal to this Court when they are supported by competent evidence, even when there is evidence to support contrary findings." Pittman v. International Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705, 709, aff'd, 351 N.C. 42, 519 S.E.2d 524 (1999). Furthermore, the "`findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.'" Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Gallimore v. Marilyn's Shoes, 292 N.C. 399,402, 233 S.E.2d 529, 531 (1977)).

The Industrial Commission made several relevant findings of fact:

14. Plaintiff has made a reasonable effort to locate suitable employment on his own and through leads provided to him by Mr. Alford since he was first medically removed from work by Dr. Adomonis on 27 January 1997.

. . .

18. Because no job was ever offered to plaintiff, it cannot be found that he unjustifiably refused suitable employment.

. . .

20. Dr. Gwinn's opinion that plaintiff had "likely" reached maximum medical improvement is not given weight. This is so because it is clear from the evidence that plaintiff continues to experience debilitating pain as the result of his 24 October 1996 injury by accident.

21. The Full Commission gives greater weight to the testimony and opinions of Dr. Cook as opposed to testimony and opinions of Dr. Gwinn and Mr. Alford.

After a careful review of the record, we find these findings of fact are supported by competent evidence in the record. Defendants point this Court to no specific finding of fact that is without supporting evidence. Defendants contend plaintiff refused suitable employment, but they produce no evidence of any actual refusal. Defendants merely argue the Industrial Commission could have reached such a conclusion based on the rule of law that capacity to earn wages can be based on an employee's ability to be hired if the employee had diligently sought work. However, the only evidence defendants offer to support plaintiff's ability to diligently seek and obtain employment is the "opinion" of Alford. The Industrial Commission specifically found that it gave less weight to the opinions of Alford and Dr. Gwinn, as opposed to Dr. Cook's opinion. Defendants merely want this Court to weigh the opinions and testimony of the witnesses in a manner which benefits defendants. On an appeal from the Industrial Commission, this Court is unable to weigh evidence.

"Before making findings of fact, the Industrial Commission must consider all of the evidence. The Industrial Commission may not discount or disregard any evidence, but may choose not to believe the evidence after considering it." Weaver v. American National Can Corp., 123 N.C. App. 507, 510, 473 S.E.2d 10, 12 (1996) (emphasis in original). We stress the Industrial Commission

"is the sole judge of the credibility of the witnesses and the weight to be given their testimony." Thus, the Commission may assign more weight and credibility to certain testimony than other. Moreover, if the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commission is conclusive on appeal.

Dolbow v. Holland Industrial, 64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984) (quoting Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). This assignment of error is without merit.

II.

Defendants next argue the Industrial Commission erred in placing any weight on Dr. Cook's opinion and in designating Dr.Cook as plaintiff's treating physician. However, defendants have failed to point to any citations of authority to support their argument. Our appellate rules require that arguments of appellants "contain citations of the authorities upon which the appellant relies." N.C.R. App. P. 28 (b)(5). Defendants have failed to cite any supporting authority in this argument; therefore, we deem this assignment of error abandoned. See State v. Thompson, 110 N.C. App. 217, 222, 429 S.E.2d 590, 592 (1993).

III.

Defendants next argue the Industrial Commission erred by awarding plaintiff temporary total disability benefits after maximum medical improvement and in spite of competent evidence that plaintiff is no longer disabled.

As discussed above in Section I, there is competent evidence in the record to support the Industrial Commission's finding that plaintiff is disabled and unable to find suitable employment.

Defendants further contend the Industrial Commission erred in finding that "Dr. Gwinn's opinion that plaintiff had `likely' reached maximum medical improvement is not given weight. This is so because it is clear from the evidence that plaintiff continues to experience debilitating pain as a result of his 24 October 1996 injury by accident." Defendants contend both Dr. Gwinn and Dr. Cook determined plaintiff had reached maximum medical improvement, and, as a result, the Industrial Commission could not award temporary disability as a matter of law. However, this Court has held it is not an error as a matter of law to award temporary total disability after an employee reaches maximum medical improvement. Russos v. Wheaton Indus., 145 N.C. App. 164, 167, 551 S.E.2d 456, 459 (2001), disc. review denied, 355 N.C. 214, 560 S.E.2d 135 (2002). Once a plaintiff establishes a disability, "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). A finding of maximum medical improvement is not sufficient to overcome the presumption of disability.

A finding of maximum medical improvement is not the equivalent of a finding that the employee is able to earn the same wage earned prior to injury and does not satisfy the defendant's burden. . . .

After a finding of maximum medical improvement, the burden remains with the employer to produce sufficient evidence to rebut the continuing presumption of disability; the burden does not shift to the employee.

Brown v. S N Communications, Inc., 124 N.C. App. 320, 330-31, 477 S.E.2d 197, 203 (1996). In the case before us, the Industrial Commission found plaintiff remained disabled, and there is competent evidence to support such a finding. Defendants' argument concerning the Industrial Commission's ability to award temporary total disability is misplaced. We overrule this assignment of error.

IV.

Defendants next argue the Industrial Commission erred in failing to rule upon a specific objection and ordering defendants to pay all medical expenses incurred by plaintiff.

Defendants cite Ballenger v. Burris Industries, 66 N.C. App. 556, 562, 311 S.E.2d 881, 885 (1984), for the rule of law that "the hearing commissioner . . . must formally enter his or her ruling into the record before making the award." However, defendants point this Court to no showing of prejudice to defendants as a result of the Industrial Commission's omission. While we stress the better practice is for the Industrial Commission to always formally enter its rulings on a party's objection, we determine the Industrial Commission's failure to rule specifically on the objection in the case before us did not prejudice defendants.

Additionally, defendants argue the Industrial Commission's conclusion that defendants were obligated to pay "for all related medical expenses incurred" is overly broad because it does not set a time limit, and the Industrial Commission did not limit the award to the precise definition articulated in N.C. Gen. Stat. § 97-2(19).

N.C. Gen. Stat. § 97-25.1 (1999) sets a two-year statute of limitation after the employer's last payment. In the case before us, the employer has not made its last medical compensation payment; therefore, the statute of limitations has not begun to run. Furthermore, the Industrial Commission required defendants to pay medical expenses, and cited N.C.G.S. § 97-25. Inherent in the Industrial Commission's award granted pursuant to N.C.G.S. § 97-25 is that the compensation will incorporate the parameters of N.C. Gen. Stat. § 97-2(19) (1999). Defendants were not required in the award to pay more than N.C. Gen. Stat. § 97-2(19) provides. We dismiss this assignment of error.

We affirm the award of the Industrial Commission.

Affirmed.

Chief Judge EAGLES concurs.

Judge TYSON dissents with a separate opinion.


Summaries of

Johnson v. Southern Tire Sales

North Carolina Court of Appeals
Aug 1, 2002
152 N.C. App. 323 (N.C. Ct. App. 2002)
Case details for

Johnson v. Southern Tire Sales

Case Details

Full title:WILLIE B. JOHNSON, Employee, Plaintiff-Appellee, v. SOUTHERN TIRE SALES…

Court:North Carolina Court of Appeals

Date published: Aug 1, 2002

Citations

152 N.C. App. 323 (N.C. Ct. App. 2002)
567 S.E.2d 773

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