Cooper v. Bht Enterprises

• Decision Date: 17 February 2009
• Docket Number: No. COA08-711.,COA08-711.
• Citation: 672 S.E.2d 748
• Parties: Gloria COOPER, Employee, Plaintiff, v. BHT ENTERPRISES, Employer, Self-Insured, and Key Risk Management Services, Servicing Agent, Defendants.
• Court: North Carolina Court of Appeals

672 S.E.2d 748

Gloria COOPER, Employee, Plaintiff, v. BHT ENTERPRISES, Employer, Self-Insured, and Key Risk Management Services, Servicing Agent, Defendants.

No. COA08-711.

Court of Appeals of North Carolina.

February 17, 2009.

Appeal by plaintiff from Opinion and Award entered 13 February 2007 and order entered 25 March 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 1 December 2008.

Morrison Law Firm, P.L.L.C., by B. Perry Morrison, Jr., Thomas & Farris, P.A., by Albert S. Thomas, Jr., and Rose, Rand Attorneys, by Paul N. Blake, III, Wilson, for plaintiff-appellant.

Cranfill, Sumner & Hartzog LLP, by J. Gregory Newton, and Meredith Taylor Berard, Raleigh, for defendants-appellees.

MARTIN, Chief Judge.

Plaintiff Gloria Cooper appeals from an Opinion and Award by the North Carolina Industrial Commission ("Commission"), which limited the benefits awarded to her by the deputy commissioner's Opinion and Award, and from an order denying her motions to amend and reconsider the Full Commission's Opinion and Award. We affirm.

The parties stipulated that an employment relationship existed between plaintiff and defendant-employer BHT Enterprises at the time of the 7 March 2003 accident, and that plaintiff "suffered a compensable injury by accident involving her lower back arising out of and in the course of her employment" with defendant-employer. The Full Commission's unchallenged and, therefore, binding findings of fact, see Johnson v. Herbie's Place, 157 N.C.App. 168, 180, 579 S.E.2d 110, 118 (concluding that, where a party failed to assign error to the Industrial Commission's findings of fact, those findings are "presumed to be supported by competent evidence" and are, thus, "conclusively established on appeal"), disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003), are as follows:

1. At the time of the hearing before the Deputy Commissioner, plaintiff was a 47 year-old female with a high school education.

2. At the time of her admittedly compensable low back injury on March 7, 2003, plaintiff had worked for defendant for approximately 14 years as a meat cook in a McDonald's restaurant.

3. Prior to March 7, 2003, plaintiff did not have any health problems that prevented her from working.

4. While at work on March 7, 2003, plaintiff entered a walk-in freezer to shelve some bagels. While exiting the freezer, plaintiff slipped on some ice and fell to the floor.

5. Plaintiff continued to work immediately following the accident, but presented to Nash Urgent Care with complaints of lower back pain later the same day. Plaintiff did not complain of or report any cervical or neck symptoms. X-rays of plaintiff's lumbar and thoracic spine were negative. Plaintiff was released to return to light-duty work; however, defendant informed plaintiff that no light-duty work was available.

....

7. On April 14, 2003, plaintiff presented to Dr. Grieg McAvoy for an orthopaedic evaluation. Dr. McAvoy interpreted x-rays of plaintiff's thoracic and lumbar spine to be within normal limits. Dr. McAvoy diagnosed plaintiff with low back pain with no signs of nerve deficits or nerve irritation, recommended a home exercise program, and released plaintiff to return to regular duty work without restrictions.

8. Plaintiff delivered a full duty release note to defendant, however she did not return to work due to her belief that she was unable to work. Larry Thomas Winbourne, director of operations for defendant, testified that he was aware of plaintiff's April 14, 2003 full-duty release by Dr. McAvoy. He testified that plaintiff's position was held open for her, and that defendant was "hoping she's come back to work." Mr. Winbourne further testified that plaintiff was considered to be on "medical leave" and was "never terminated."

9. On June 16, 2003, plaintiff returned to Dr. McAvoy for re-evaluation. At this visit, she complained of both lower back and neck pain[, the description of which was recorded in Dr. McAvoy's medical notes as "a catch in her neck"]. Dr. McAvoy ordered another lumbar MRI but did not order a cervical MRI. The lumbar MRI was performed on July 3, 2003 and revealed slight osteoarthritic changes but no disc extrusion or stenosis. On the basis of this MRI, Dr. McAvoy, on July 3, 2003, deemed plaintiff to have reached maximum medical improvement, assigned a permanent partial disability rating of 0% to plaintiff's back, and advised plaintiff to "continue with normal activities without restrictions."

10. Plaintiff began overlapping treatment with her primary care physician, Dr. Samuel Wesonga, at the Boice-Willis Clinic on April 24, 2003. Plaintiff initially reported only lower back pain to Dr. Wesonga, and made no mention of cervical or neck pain. It was not until September 24, 2003, over six months after the March 7, 2003 injury by accident that plaintiff reported both lower back/extremity pain and neck/shoulder pain to Dr. Wesonga.

11. Dr. Wesonga ordered a cervical MRI for the first time since plaintiff's accident at work. The MRI revealed disc herniations superimposed on severe circumferential spinal stenosis at C5-C6 and C6-C7. As a result, Dr. Wesonga referred plaintiff for neurosurgical evaluation.

12. On December 16, 2003, plaintiff presented to Dr. Lucas J. Martinez, a neurosurgeon at Rocky Mount Neurosurgical and Spine Consultants. Dr. Martinez diagnosed plaintiff with herniated disks in the neck at C6-C7 on the left and C5-C6 on the right.

13. On February 5, 2004, Dr. Martinez performed cervical surgery that consisted of an anterior cervical microdiscectomy and anterior interbody fusion at C6-C7.

14. Following her surgery, plaintiff continued to treat with Dr. Martinez, including a regimen of physical therapy from which she was discharged on August 12, 2004. Plaintiff last saw Dr. Martinez on August 25, 2004, but continued to treat with Dr. Wesonga for chronic pain as of the date of hearing before the Deputy Commissioner.

The Commission also found that plaintiff "failed to show disability beyond her release to return to work on April 14, 2003." Plaintiff did not challenge this finding.

After receiving evidence, the deputy commissioner filed an Opinion and Award on 9 May 2006, which concluded that plaintiff was entitled to (1) "total disability compensation at the [stipulated] rate of $111.96 per week from March 8, 2003 and continuing until plaintiff returns to work or until further order of the Commission," and (2) "payment of medical expenses incurred or to be incurred as a result of her compensable upper and lower back conditions as may reasonably be required to effect a cure, provide relief, or lessen the period of disability." (Emphasis added.) Defendant-employer and its third-party administrator Key Risk Management Services (collectively "defendants") appealed to the Full Commission on 11 May 2006. On 13 February 2007, the Full Commission entered an Opinion and Award affirming in part, and reversing in part, the deputy commissioner's decision. The Full Commission concluded that plaintiff was entitled to (1) "total disability compensation at the [stipulated] rate of $111.96 per week from March 8, 2003, through April 14, 2003, the date she was released to return to full-duty work," and (2) "payment of medical expenses incurred or to be incurred [only] as a result of her low back condition as may reasonably be required to effect a cure, provide relief, or lessen the period of disability." (Emphasis added.) Plaintiff filed a Motion to Amend the Opinion and Award pursuant to Rule 59 of the North Carolina Rules of Civil Procedure, and a Motion to Reconsider the Opinion and Award pursuant to Workers' Compensation Rule 701, both dated 22 February 2007, on the grounds that "the evidence before the Commission [wa]s insufficient to justify its decision." On 9 March 2007, defendants filed Responses to Plaintiff's Motion to Amend and Motion to Reconsider. On 25 March 2008, the Full Commission denied plaintiff's motions, finding that "plaintiff has not shown good grounds for the Full Commission to amend, reconsider, or make additional findings in this matter." Plaintiff appealed to this Court from the Commission's 13 February 2007 Opinion and Award and its 25 March 2008 order denying her motions.

We first address plaintiff's contention that the Commission erred by hearing defendants' appeal from the deputy commissioner's Opinion and Award. Plaintiff asserts that defendants failed to file a Form 44 pursuant to Workers' Compensation Rule 701(2), which defendants do not dispute. Although defendants properly filed a brief with the Commission after giving notice of their appeal, as also required by Rule 701(2), plaintiff argues that defendants' mere failure to file a Form 44 constitutes an abandonment of defendants' grounds for appeal to the Full Commission. We disagree.

Workers' Compensation Rule 701(2) of the North Carolina Industrial Commission provides that, after giving sufficient notice of appeal to the Full Commission, an appellant must complete a Form 44 Application for Review, which is supplied by the Commission, stating the grounds for its appeal "with particularity." Workers' Comp. R. of N.C. Indus. Comm'n 701(2), 2009 Ann. R. (N.C.) 1006. The appellant must then file and serve the completed Form 44 and an accompanying brief within the specified time limitations "unless the Industrial Commission, in its discretion, waives the use of the Form 44." See id.

Like defendants in the present case, in Roberts v. Wal-Mart Stores, Inc., 173 N.C.App. 740, 619 S.E.2d 907 (2005), the plaintiff did not file a Form 44 after giving notice of her appeal to the Full Commission. See id. at 742, 619 S.E.2d at 909. However, unlike defendants in the present case, the Roberts plaintiff also failed to file a brief or "any other document with the Full Commission setting forth grounds for appeal with particularity." See id. at 744, 619 S.E.2d at 910. While we recognized then, as we...