Craver v. Dixie Furniture Co.

• Decision Date: 19 July 1994
• Docket Number: No. 9310IC815,9310IC815
• Citation: 115 N.C.App. 570,447 S.E.2d 789
• Court: North Carolina Court of Appeals
• Parties: Christine CRAVER, Employee/Plaintiff, v. DIXIE FURNITURE COMPANY, Employer, Liberty Mutual Insurance Company, Carrier, Defendants.

Page 789

447 S.E.2d 789

115 N.C.App. 570

Christine CRAVER, Employee/Plaintiff, v. DIXIE FURNITURE COMPANY, Employer Liberty Mutual Insurance Company, Carrier, Defendants.

No. 9310IC815.

Court of Appeals of North Carolina.

July 19, 1994.

Ordered Published Sept. 2, 1994.

Michael A. Swann, Lexington, for plaintiff-appellant.

Brinkley, Walser, McGirt, Miller, Smith & Coles by Stephen W. Coles, Lexington, for defendant-appellee.

JOHN, Judge.

Plaintiff appeals an opinion and award of the North Carolina Industrial Commission (the Commission) dismissing her claim on grounds it was not filed within the two-year period set forth in N.C.Gen.Stat. § 97-24(a) (1991). In so ruling, a majority of the full Commission specifically rejected the Deputy Commissioner's determination that defendants were estopped by their conduct from asserting the statutory time bar, and that the Commission had jurisdiction of plaintiff's claim for compensation.

By six assignments of error, plaintiff contends the Commission erred by failing to adopt the Deputy Commissioner's award in its entirety. Against the contingency that we decide the estoppel issue in plaintiff's favor, defendants also bring forth six cross-assignments of error to the 10 July 1990 and 15 April 1991 opinions of Deputy Commissioner Garner. Under the circumstances of this case, we find only plaintiff's contentions persuasive.

The following factual and procedural information is undisputed: Plaintiff began employment with defendant Dixie Furniture Company (Dixie Furniture) in 1977. In 1985, her position was lead person in the "rough-in" room, a supervisory job which also required her to set up machinery and saws, "keep the wood pushed out," and handle certain billing matters. On 4 March 1985, plaintiff struck her right elbow on a "set-up bar." On 26 August 1985, she suffered a similar injury to her right wrist after hitting it on a "guide bar." Immediately following both incidents, plaintiff informed plant nurse Ann Barnes (Ms. Barnes). In each instance, Ms. Barnes applied ice to the affected area Plaintiff first sought outside medical attention for increasing pain and stiffness in her right arm and shoulder on 11 November 1986. After consultation with a series of physicians, her condition was eventually diagnosed in September 1987 as reflex sympathetic dystrophy of her right arm. While allegedly conducting an investigation into the compensability of plaintiff's injuries, defendant Liberty Mutual Insurance Company (Liberty Mutual), Dixie Furniture's carrier, made several initial payments covering her medical expenses. Meanwhile, on 22 May 1987, another Dixie Furniture plant nurse named Janet Osborne (Ms. Osborne) submitted a Form 19 to the Industrial Commission describing the 4 March 1985 accident. Liberty Mutual ultimately denied coverage for plaintiff's injuries some time after expiration of the two-year statutory period, and plaintiff subsequently filed a request for hearing with the Commission on 24 February 1989.

and made a notation regarding plaintiff's condition in the company's employee health record.

The hearing was conducted on 30 March 1990 and 6 April 1990. Per the parties' request, Deputy Commissioner Edward Garner, Jr. thereafter issued an opinion and order limited to the issue of the Commission's jurisdiction to hear plaintiff's claim. Pertinent findings of fact contained therein are as follows:

1. On March 4, 1985, the plaintiff sustained an injury by accident arising out of and in the course of her employment when she struck her right elbow on a set-up bar. The accident was reported to the company nurse who made an entry in the employee health record. At that time the nurse noted a small reddened area, but no bruising or swelling. She applied ice to the injury, then saw the plaintiff again on March 6, 1985, at which time she checked the right elbow and found fading discoloration, but no lump.

2. On August 26, 1985, the plaintiff sustained another injury by accident arising out of and in the course of her employment when she hit her right wrist on a guide bar. This was reported to the plant nurse who applied ice and an ace wrap. The nurse noted no discoloration, but noted that the wrist was slightly puffy.

3. The plaintiff did not seek medical treatment until November 11, 1986, when she saw Dr. Karl Bolstad, who also saw her on November 25, 1986; December 2, 1986; and April 3, 1987. Thereafter, the plaintiff was treated by Dr. Joseph Nicastro on June 18, 1987; July 16, 1987; and August 11, 1987. She was eventually referred to Dr. Gary Poehling and saw him on September 15, 1987. Dr. Poehling diagnosed a reflex sympathetic dystrophy of her right arm.

4. On November 11, 1986, Dr. Bolstad treated plaintiff and filled out a standard registration form in which he indicated that plaintiff got hurt on the job. Plaintiff gave this form to the plant nurse when she returned to work. Plaintiff also paid Dr. Bolstad for the treatment rendered and submitted the bills to the plant nurse according to company policy. The plant nurse was fully aware that plaintiff was receiving medical treatment from Dr. Bolstad for the job-related injury.

5. Plaintiff discussed her injury with Mr. Bob Wood, Director of Health Safety, and he told her to have it covered by workers' compensation. Mr. Wood also told the company's personnel manager that it should be a compensable claim.

6. On June 4, 1987, Dr. Bolstad received a check from Liberty Mutual Insurance Company in the amount of $105.50 to cover plaintiff's medical expenses.

7. The plant nurse knew the procedure for filing workers' compensation claims, and the employees, including the plaintiff, relied on her for such services.

8. When plaintiff was out of work, the defendant-employer carried her on the company records as if she was on workers' compensation leave.

9. Although the defendant-employer was aware of plaintiff's medical condition, it did not file a Form 19 with the Industrial Commission until May 22, 1987.

10. Although the defendant-carrier was paying medical expenses and had advised Dr. Bolstad that the claim was being investigated 11. Although the defendant-employer and the defendant-carrier had knowledge of plaintiff's claim, compensation was not officially denied until after the statute of limitation had run.

it first contacted the plaintiff in January of 1988, when Steve Cowherd, an adjuster, took a recorded interview from the plaintiff.

12. The plaintiff did not file a claim for compensation with the Industrial Commission until she filed a request that the claim be assigned for hearing through her attorney on or after February 24, 1989, which was more than two years after the two accidents.

13. The conduct of both the plant nurse whom the plaintiff relied on for workers' compensation advice, and the defendant-carrier misled the plaintiff and lured her into a false sense of security about her claim until after the statute of limitation had run.

Based upon the foregoing, Deputy Commissioner Garner reached the following conclusions of law:

1. The plaintiff sustained an injury by accident arising out of and in the course of her employment on March 4, 1985 and on August 26, 1985.

2. The plaintiff did not file a claim within two years of either accident as required by G.S. § 97-24(a).

3. The employer and carrier did lure the plaintiff into a false sense of security and caused her not to file a claim with the North Carolina Industrial Commission and are estopped from pleading the statutory bar of G.S. § 97-24(a).

4. The North Carolina Industrial Commission has jurisdiction to hear this case.

The parties were allowed sixty (60) days in which to submit additional evidence by way of medical records and/or medical depositions. At the conclusion of that time, Deputy Commissioner Garner entered a second opinion and award on 15 April 1991, which incorporated by reference the 10 July 1990 opinion and order. Included in this second opinion were the following additional findings of fact:

2. The plant nurse of defendant-employer was responsible for assisting employees in filing workers' compensation claims. The nurse had a workers' compensation information bulletin, and this bulletin was never given to the employees. Specifically the plaintiff was never given a copy of this bulletin.

3. Mr. Robert Craven, personnel manager, stated at the hearing that the plant nurse would take care of filing workers' compensation claims for the employees. He also thought this claim was compensable.

4. Ms. Ann Barnes, plant nurse, stated at the hearing that the employees relied on the plant nurse as to what course of action to take in workers' compensation matters.

....

6. On November 7, 1989, plaintiff was rated by Dr. Gary G. Poehling as having a 75 percent permanent partial impairment to the right arm. Prior to rating plaintiff, Dr. Poehling administered two objective tests.... Dr. Poehling also found that plaintiff had loss of strength and endurance in her right arm and also loss of sensation in her index finger and thumb which essentially causes her to have what he described as a "blind hand". Plaintiff cannot feel what she is picking up with the thumb and index finger....

7. On February 26, 1990, plaintiff was rated by Dr. Vincent E. Paul.... [A]fter Dr. Paul looked over what the tests done by Dr. Poehling have shown, he amended his decision and increased his permanent partial impairment rating to 50 percent. Both doctors agree that plaintiff is not totally disabled and she can do some sort of work....

8. As a result of plaintiff's injury by accident, she has suffered a 75 percent permanent partial impairment of the right arm.

Deputy Commissioner Garner then concluded as a matter of law:

2. Plaintiff is entitled to compensation at the rate of $180.00 per week for 180 weeks for the 75 percent permanent partial impairment she sustained to her right 3. Plaintiff is entitled to temporary total disability...