Chaisson v. Simpson
| Decision Date | 03 March 2009 |
| Docket Number | No. COA08-704.,COA08-704. |
| Citation | 673 S.E.2d 149 |
| Parties | Scott CHAISSON, Employee, Plaintiff, v. Red SIMPSON, Employer, Liberty Mutual Insurance Company, Carrier, Defendants. |
| Court | North Carolina Court of Appeals |
The Jernigan Law Firm, by Leonard T. Jernigan, Jr., Raleigh, for plaintiff-appellee.
Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by J.A. Gardner, III, and M. Duane Jones, Raleigh, for defendants-appellants.
Defendant-employer Red Simpson and defendant-carrier Liberty Mutual Insurance Company (collectively "defendants") appeal from an Opinion and Award of the North Carolina Industrial Commission ("Commission") approving a compromise settlement agreement and awarding attorney's fees and costs in favor of plaintiff-employee Scott Chaisson ("plaintiff"). We affirm.
The parties do not dispute that, on 21 February 2003, plaintiff sustained an injury to his right ankle and right knee arising out of and in the course of his employment as a crew foreman and utility lineman with defendant-employer. Defendant-employer is a power line contracting company, which "servic[es] power companies, utility companies around the United States." In the course of his employment with defendant-employer, plaintiff "would prepare and install underground power and overhead power, high voltage, low voltage and transmission lines all across the mid[-A]tlantic," which required plaintiff to "engage[] in strenuous activity, including climbing poles, walking lines and making repairs during ice storms."
At the time of his injury, plaintiff was in Tallmansville, West Virginia, working for defendant-employer to assess and repair power lines that had been damaged as a result of an ice storm in the area. While he was surveying miles of damaged power lines in a mountainous area covered by five to seven feet of snow, plaintiff walked down an embankment and fell into a concealed hole that was about five feet deep. When plaintiff fell into the hole, he "heard a pop noise, and [his] knee completely flipped to right around [his] shoulder area." Since his cellular telephone did not work due to the elevation in that area, plaintiff made his way out of the hole and "dragg[ed his] leg [behind him] actually to get back to the roadway for someone to pick [him] up," during which time he felt "a lot of burning in [his] knee."
Defendant-carrier accepted plaintiff's claim as a compensable injury. On 15 May 2003, plaintiff underwent arthroscopic surgery on his right knee to repair the right medial meniscal tear that was detected by an MRI on 13 March 2003. Plaintiff's treating physician prescribed "a vigorous physical therapy rehabilitation program" following his surgery and released plaintiff to return to full duty work on 28 October 2003.
However, on 18 August 2004, plaintiff returned to his treating physician complaining that he continued to "hav[e] problems with his knee and ... described a burning-type discomfort, particularly with activity, and squatting." After being ordered to start another course of physical therapy, plaintiff returned to his treating physician on 15 February 2005, who noted that plaintiff "had persistent pain in the knee cap (patellofemoral pain) and tendinitis (iliotibial friction band syndrome) on the outside of his knee." Plaintiff was again sent to participate in a physical therapy rehabilitation program and told to return for a reevaluation in three months. Plaintiff began physical therapy on 7 March 2005 and was to be seen twice a week for four to six weeks, where it was reported that plaintiff "had pain in his knee at rest and with activity, an abnormal gait, and decreased knee strength."
According to a later follow-up visit, the results of which are reflected in the Full Commission's unchallenged Finding of Fact 10, plaintiff's treating physician made the following determinations:
Per the testimony of [plaintiff's treating physician,] Dr. Caudle, Plaintiff is likely to have persistent symptoms and over time he is likely to have wear-and-tear type arthritis, a wearing away of the cartilage on the bone, on the inside half of the knee, where the torn cartilage was removed. The meniscus cartilage is between the bones, and the articular cartilage is on the bone. The cartilage serves as a cushioning between the bones. As Dr. Caudle testified, Plaintiff is at risk of needing future medical treatment for his knee because he does not have enough normal cushion remaining in his knee. It is more likely than not that Plaintiff will have gradual worsening symptoms in his right knee as he ages.
The Full Commission also made the following unchallenged findings of fact:
5. In January 2004, Liberty Mutual sent Plaintiff a Form 21, which Plaintiff refused to sign. Plaintiff wrote the Industrial Commission saying he did not think the compensation was fair, particularly since he had lost his job because he could no longer perform the physical duties of his job.
....
11. Candice Buchanan was a Senior Claims Case Manager II for Liberty Mutual in 2005, and was employed by Liberty Mutual from April 1998 until May 13, 2005 in Tampa, Florida. She now works in a similar capacity for another insurance company in Tampa.
12. As a Senior Claims Case Manager II she handled catastrophic claims, complicated litigation and anything that had a high dollar value. She tended to get more complicated claims or older claims. Because Ms. Buchanan had been able to settle a lot of cases quickly, the company started giving her more and more cases that needed to be settled that other people could not get settled, and she was able to do it. She handled and settled a high volume of claims, and because of this ability she was nicknamed "The Liquidator." If no other case manager could liquidate the file, it would be given to her.
13. Several adjusters had handled Plaintiff's file before Ms. Buchanan got it. Future medicals were an issue, no permanent disability benefits had been paid, and Plaintiff had refused to sign a Form 21 submitted to him previously by Liberty Mutual.
14. Ms. Buchanan first picked up the Plaintiff's file on April 6, 2005. Ms. Buchanan talked with Plaintiff on one day, on or about April 14, 2005, and they reached a settlement agreement. Ms. Buchanan could not testify as to the exact settlement amount, but thought it was in the range of $25,000. Per Plaintiff's testimony, the settlement amount agreed to was $97,500.
15. Even though his education level is only a G.E.D., Plaintiff presents himself as intelligent and articulate. Plaintiff's wife has a B.S. in nursing, and was able to assist her husband in researching issues of further medical treatment, including a possible knee replacement. During the settlement negotiations with Liberty Mutual, Plaintiff made settlement demands as high as $145,000. At one time, a figure of $85,000 was also discussed, although after researching the knee replacement issue, Plaintiff would not accept that amount. The end result was the settlement figure of $97,500.
16. After the settlement figure was reached between Plaintiff and Candice Buchanan, Ms. Buchanan contacted Hedrick Eatman Gardner and Kincheloe, defense counsel for Liberty Mutual in North Carolina. The file was assigned to attorney Jennifer Ruiz for preparation of the settlement package, including the compromise settlement agreement. On April 28, 2005, Attorney Ruiz contacted Candice Buchanan by telephone, to determine the settlement amount. In her handwritten notes of April 28, 2005, Ms. Ruiz recorded that she had spoken with Candice ("Candy") Buchanan and that the Scott Chaisson case had been settled for $97,500 and that Ms. Buchanan would email her the medical records. Ms. Ruiz would draft the settlement agreement, and was not involved in the settlement negotiations.
....
18. Jennifer Ruiz prepared a Compromise Settlement Agreement, per the direction of her client, Liberty Mutual. The Compromise Settlement Agreement was mailed to Plaintiff with a cover letter from Ms. Ruiz dated June 9, 2005. Ms[.] Ruiz requested that Plaintiff review and sign the agreement and return it to her office. After receiving the settlement agreement, which stated that the settlement amount was $97,500.00, to be paid in one lump sum, Plaintiff signed the agreement and returned it to Ms. Ruiz's office.
19. By the time the agreement had been signed by Plaintiff and returned to Liberty Mutual, Candice Buchanan had left her employment. Although the agreement had been negotiated by Ms. Buchanan as an agent of Liberty Mutual Insurance Company, Liberty Mutual refused to sign the agreement, and took the position that the settlement amount was a mistake.
20. In her testimony, Candice Buchanan acknowledged that a settlement agreement was reached. However, she denied that the amount was $97,500 and insisted that it was in the range of $25,000. Ms. Buchanan produced no documentation to support her position that the settlement figure actually negotiated was in the range of $25,000 rather than the $97,500, which she communicated to Jennifer Ruiz. Liberty Mutual produced no records to substantiate their position that the $97,500 figure was a "mistake."
....
23. After Plaintiff learned that the carrier would not honor the Compromise Settlement Agreement, he sent the agreement to the Executive Secretary's office for enforcement. By Order filed August 30, 2005, the Executive Secretary's office denied the motion to enforce, and referred the matter for a hearing before a Deputy Commissioner. Plaintiff hired attorney Leonard Jernigan to represent him at the hearing before the Deputy Commissioner, and Mr. Jernigan filed a Form 33 with cover letter dated September 14, 2005.
(Emphasis added.)
On 19 September 2005, defendants' attorney signed a Form 33R on behalf of defendants alleging that "[d]...
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