Alphin v. Tart L.P. Gas Co.

• Decision Date: 16 September 2008
• Docket Number: No. COA07-731.,COA07-731.
• Citation: 666 S.E.2d 160
• Court: North Carolina Court of Appeals
• Parties: Robert H. ALPHIN, Employee, Plaintiff, v. TART L.P. GAS COMPANY, Employer, Aetna Life & Casualty Company, Carrier, Defendants.

666 S.E.2d 160

Robert H. ALPHIN, Employee, Plaintiff, v. TART L.P. GAS COMPANY, Employer Aetna Life & Casualty Company, Carrier, Defendants.

No. COA07-731.

Court of Appeals of North Carolina.

September 16, 2008.

Appeal by plaintiff from opinion and award entered 22 March 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 12 December 2007.

Brent Adams & Associates, by Robin K. Martinek, Raleigh, for plaintiff-appellant.

Hedrick Gardner Kincheloe & Garofalo, L.L.P., by Jeffrey A. Doyle and Susan J. Vanderweert, Raleigh, for defendants-appellees.

GEER, Judge.

Plaintiff Robert H. Alphin appeals from an opinion and award of the North Carolina Industrial Commission denying his motion to reinstate benefits and determining that he failed to prove that he has been totally disabled or had diminished wage-earning capacity. Based upon our review of controlling precedents regarding the presumption of continuing disability arising from Form 21 and Form 26 agreements, we hold that the Commission erred in concluding that the presumption in this case had "ended." Instead, the burden of rebutting the presumption of continuing disability remained on defendants, and the Commission was required to determine whether defendants had met their burden before deciding that plaintiff was not entitled to indemnity compensation. With respect to plaintiff's motion to reinstate benefits, our standard of review requires that we uphold the Commission's determination that plaintiff did not show that his unjustified refusal to cooperate had ceased. Accordingly, we affirm in part and reverse and remand in part.

Facts

Plaintiff suffered a compensable injury on 8 March 1990 resulting in low back pain radiating into his right leg. The parties executed a Form 21 pursuant to which defendants agreed to pay temporary total disability compensation to plaintiff for "necessary weeks"; the agreement was approved by the Commission on 2 April 1990. Subsequently, plaintiff returned to work on at least two occasions. The record indicates, however, that on 28 June 1990, the parties entered into a Form 26 agreement to reinstate temporary total disability compensation for "necessary weeks." On 13 July 1990, defendants filed, and the Commission approved, a Form 24 application to terminate compensation.

In October 1990, defendants filed another Form 26, stating that plaintiff had reached maximum medical improvement and agreeing to pay plaintiff compensation for a 10% permanent partial impairment to his back. The Commission approved the agreement on 1 November 1990, and defendants filed a Form 28B on 11 December 1990, stating that the case was being closed by the defendant carrier.

The parties executed a third Form 26 agreeing that plaintiff had again became totally disabled as of 23 July 1991 and agreeing to reinstate temporary total disability for "necessary weeks." On 16 December 1991, the parties entered into a fourth Form 26 agreeing that plaintiff had reached maximum medical improvement, that he had a 15% permanent partial impairment rating, and that defendants would pay plaintiff for the 5% increase in his rating. The Commission approved the fourth Form 26 agreement on 7 January 1992, and the defendant carrier filed another Form 28B closing the case.

A fifth Form 26 agreement was executed with the parties agreeing to payment of continuing temporary total disability compensation beginning 4 March 1993 and continuing "for necessary weeks." The Commission approved this agreement on 11 May 1993.

In the opinion and award on appeal, the Commission found, that as of 11 November 1993, plaintiff was capable of earning wages in sedentary work with no bending and twisting, although if plaintiff was sitting, he would need a couple of minutes every half hour to stand. Plaintiff had a 25% permanent partial impairment rating to the back. These findings were based on the evaluation of Kenneth J. Rich, M.D. reflected in a note dictated on 11 November 1993. Defendants paid plaintiff the increase of 10% in his permanent partial impairment rating.

On 10 May 1994, the Commission ordered plaintiff to cooperate with vocational rehabilitation efforts. On 25 May 1994 and again on 30 November 1994, the Commission denied defendants' Form 24 applications to stop payment of compensation. Defendants filed another Form 24 on 17 May 1995, alleging that plaintiff had failed to comply with vocational rehabilitation. The Executive Secretary's Office approved this Form 24 on 5 July 1995 effective 5 May 1995.

Plaintiff filed a Form 33 request for a hearing on 17 April 1996, alleging that defendants refused to pay permanent and total disability compensation. Plaintiff also filed a motion for reinstatement of benefits on 24 June 1996 claiming that he had fully complied with defendants' rehabilitation efforts, but adding that if the Commission found he had failed to comply, he was at that point ready, willing, and able to fully and completely cooperate.

Following a hearing before the deputy commissioner on 19 December 1996, the deputy determined that plaintiff had participated in vocational rehabilitation in a reasonable fashion and that temporary total disability payments should be reinstated. The deputy, however, also found that plaintiff's entitlement to temporary total disability benefits ended when he reached maximum medical improvement on 7 November 1996, and after that date, plaintiff was entitled only to his rating.

Both parties appealed to the Full Commission. In an opinion and award filed 17 March 1999, the Commission reversed the deputy commissioner's decision concluding that plaintiff had failed to cooperate with vocational rehabilitation after being ordered to do so; defendants were entitled to terminate plaintiff's compensation for failure to cooperate; and plaintiff reached the end of his vocational rehabilitation period on 5 May 1995 when he refused to cooperate. In addition to addressing the failure to cooperate, the Commission found that "[a]s of November 11, 1993, plaintiff was capable of earning wages in sedentary work with no bending and twisting and with sitting and standing and if sitting, being provided a couple of minutes every half hour to stand."

Plaintiff appealed to this Court, and on 16 May 2000, this Court issued an opinion affirming in part, reversing in part, and remanding to the Full Commission. Alphin v. Tart L.P. Gas Co., 138 N.C.App. 167, 535 S.E.2d 117 (May 16, 2000) (unpublished). The Court affirmed the Commission's determination that plaintiff had not complied with vocational rehabilitation, but held that the Commission was only authorized to suspend — and not terminate — benefits until plaintiff's unjustified refusal to cooperate ceased. The Court directed that the Commission's opinion and award on remand specify that plaintiff might be entitled to weekly compensation benefits upon a proper showing that plaintiff was willing to cooperate with defendants' rehabilitative efforts.

On 8 December 2000, the Full Commission entered an order denying plaintiff's motion for resumption of benefits on the grounds that "plaintiff has not made a proper showing nor has he affirmatively established that he is willing to cooperate with defendants' rehabilitative efforts." On the same date, based on this Court's decision, the Commission amended its opinion and award to provide that plaintiff's benefits were only suspended. The Commission, however, repeated its earlier finding that plaintiff was capable of earning wages in sedentary work with restrictions and awarded plaintiff compensation for his 25% permanent partial rating to his back subject to an offset for compensation already paid by defendants. Plaintiff filed notice of appeal to this Court on 3 January 2001, but never perfected the appeal.

On 5 April 2001, plaintiff filed a motion to resume payment of temporary total workers' compensation benefits, alleging that defendants refused to provide vocational rehabilitation despite plaintiff's expressed willingness to cooperate. On 20 April 2001, the Executive Secretary entered an order, stating: "Due to the fact that the issues contained in the Opinion and Award filed on March 17, 1999 are currently on appeal to the North Carolina Court of Appeals, IT IS HEREBY ORDERED that the plaintiff's Motion is denied in the administrative forum."

On 13 June 2001, plaintiff filed a Form 33 request for hearing, stating: "I have not received any temporary total benefits since May 5, 1995 and have not returned to gainful employment." The deputy commissioner issued an opinion and award finding that "[p]laintiff's verbal assurances of cooperation have not been accepted as credible, not only because of his previous problems with the rehabilitation providers but also because of his appearance and demeanor at the hearing."

Plaintiff appealed the deputy commissioner's decision to the Full Commission. On 9 May 2003, the Full Commission entered an order finding that "[t]he record indicates that the most recent medical evaluation of plaintiff's condition occurred on 11 November 1993, when Dr. Rich released plaintiff to return to work with restrictions and rated him with a 25% permanent partial disability to his back. The Full Commission finds as a fact that an updated independent medical evaluation is necessary to determine the extent of plaintiff's continuing disability, if any, and whether he would benefit from a resumption of vocational rehabilitation." The Commission ordered plaintiff to submit to an independent medical examination and held the record in the case open until the Commission received the results of the evaluation. The issue of reinstatement of plaintiff's benefits was held in abeyance pending receipt of the results of the evaluation and the closing of the record. Dr. Rich performed the independent medical examination on plaintiff, and the Commission received his deposition testimony in September 2004.

On 22 March 2007, the...