Cunningham v. Goodyear Tire & Rubber Co.
| Decision Date | 06 October 2020 |
| Docket Number | No. COA19-909,COA19-909 |
| Citation | 849 S.E.2d 880 |
| Court | North Carolina Court of Appeals |
| Parties | Doris G. CUNNINGHAM, Employee-Plaintiff, v. The GOODYEAR TIRE & RUBBER CO., Employer, Liberty Mutual Insurance Co., Carrier, Defendants. |
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, Greensboro, and David P. Stewart, and Jay A. Gervasi, Jr., Greensboro, for Plaintiff.
Young, Moore, and Henderson, P.A., Raleigh, by Angela Farag Craddock, for Defendants.
Doris G. Cunningham ("Plaintiff") appeals from the opinion and award of the North Carolina Industrial Commission ("the Commission") denying her claim for disability compensation from Goodyear Tire and Rubber Company ("Defendant-Employer") and Liberty Mutual Insurance Company ("Defendant-Carrier") (collectively, "Defendants"). On appeal, Plaintiff primarily argues that the Full Commission erred by dismissing her 27 May 2014 claim for lack of jurisdiction and failing to decide whether she suffered a compensable injury on that date.
After careful review, we reverse the opinion and award and remand to the Commission to decide the merits of Plaintiff's 27 May 2014 claim.
Plaintiff has worked as a press operator for Defendant-Employer continuously since 2001 where she walks an average of eight to nine miles a day and lifts "anywhere from a thousand to fourteen hundred tires" in a 12-hour shift. After she puts the tires into a loading truck, a machine picks up the tires from the pan where they are molded and pressed and then returned on a conveyer belt. In 2011, Plaintiff injured her lower back twice while lifting tires and filed claims with the Commission; both claims were settled in 2012.
On 27 May 2014, Plaintiff tried to grab a "severely stuck" tire off a flatbed truck and hurt her lower back in the process. She reported the incident to her area manager, and when she woke up the next morning, she could not move. Plaintiff filed a F159 "Associate Report of Incident" ("F159"), an internal document that is submitted with Defendant-Employer following an incident at work, and was placed on light duty for six weeks. Plaintiff returned to full duty at the end of that six weeks and did not miss any work due to the incident. At the hearing, Plaintiff testified that since the 2014 injury,1 her pain has "never [been] better than a four" on a scale of one to ten.
After receiving Plaintiff's F159 for her 27 May 2014 alleged injury, Defendant-Carrier mailed Plaintiff a completed Form 19, Employer's Report of Employee's Injury, and a blank Form 18, Notice of Accident to Employer and Claim of Employee, per Defendants’ accident-report protocol. Plaintiff testified that she never received these forms from Defendants and that she believed her claim for an injury to her back on 27 May 2014 had been accepted because she had been placed on light duty—something which had not happened with either of her 2011 incidents. She also testified that she was prepared to fill out the Form 18 in 2014 but was told by her union representative that "they" had already received her form.
Nancy Talavera, a claims processor for Defendant-Carrier, testified that the representative assigned to investigate Plaintiff's allegations attempted to contact Plaintiff three times to determine whether she wished to pursue a claim. According to Ms. Talavera, Defendant-Carrier's policy when it is unable to contact an employee and the employee has not lost time due to the incident is to presume that the employee does not wish to file a claim and close the file. Since Plaintiff never missed work for her injury, did not file a Form 18, and did not respond to Defendant-Carrier's attempts to reach her, Defendant-Carrier closed her file.
Following the 27 May 2014 injury, Plaintiff received treatment at the dispensary, an on-site medical facility that treats work-related and non-work-related injuries and ailments of Defendant-Employer's employees. Frank Anthony Murray, a physical therapist who evaluates and treats musculoskeletal injuries
at the dispensary, treated Plaintiff following the 2014 incident. When Plaintiff saw Mr. Murray on 3 June 2014, she reported her pain at ten out of ten. By 9 June 2014, her pain was "five out of ten at worse [sic], to two out of ten at best." Mr. Murray testified that Plaintiff's range of motion increased between visits and that combined with her reduction in pain level indicated that she was improving. Mr. Murray treated Plaintiff on 10, 13, 18, 23, and 24 June 2014, and by the 24 June visit, her "[r]ange of motion was full and painless[.]"
On 23 February 2015, Plaintiff returned to Mr. Murray and told him that her back pain had never completely subsided since 27 May 2014 and that she felt it had increased recently, noting her pain as "eight out of ten down to four out of ten[.]" Mr. Murray diagnosed Plaintiff with chronic low back pain, and saw Plaintiff on 3 March 2015, where she reported her pain between "three out of ten to five out of ten[.]" Plaintiff did not return to Mr. Murray until 25 April 2017. She told him that she continued to have some back pain and had been treated for plantar fasciitis
since March 2016, and her doctor suggested that the pain she was having in her feet was coming from her lower back. Plaintiff told Mr. Murray that "there was no precipitating episode[,]" but rather an "ongoing, continuation of low-back pain."
Plaintiff visited nurse case manager Kelly Avants at the dispensary on 28 April 2017, and Ms. Avants informed Plaintiff that Defendant-Carrier had closed Plaintiff's file because "she reached the statute of limitations in regard to her back claims" and they could not cover any further treatment. On 8 May 2017, Plaintiff reported that she had again been injured on 25 April 2017 from a stuck tire and that she felt a sharp pain in her lower back.
Dr. David Jones, a neurosurgeon, examined and treated Plaintiff in July 2017 and found that she had some disc desiccation in her spine at L4-5 and L5-S1, that she had a small, far lateral disc bulge that could irritate her L4 nerve root, and a more focal right-sided disc protrusion that he thought could irritate her right S1 nerve root. He determined that she did not require surgery and recommended medical management, activity modification, physical therapy, and injection therapy.
Dr. Nailesh Dave, whose main practice is neurology and chronic, musculoskeletal, and neuropathic pain, began treating Plaintiff on 19 July 2017 after she was referred by Dr. Jones for pain management. Dr. Dave diagnosed Plaintiff with chronic back pain with lumbar radiculopathy
and continued to see Plaintiff through 2018 for treatment. Dr. Dave testified that it was "more than likely" that a 25 April 2017 injury exacerbated Plaintiff's 27 May 2014 injury, but there was no way to determine to what extent each injury caused her current condition.
Dr. Gurvinder Deol, an orthopedic surgeon who treats lumbar spine complaints, examined Plaintiff once in March 2018. Dr. Deol testified that Plaintiff had mild degenerative disc disease
at L4-5 and L5-S1, but "overall the thought was she seemed to have a MRI that probably looked a little better than people in their mid-fifties, [be]cause everybody kind of degenerates their spine over time." Based on his one-time examination of her and the review of the records, Dr. Deol testified that "it's difficult to say if there's one particular incident" from which her current pain complaints stem.
On 19 May 2017, Plaintiff filed two Form 18s with the Commission: one alleging an incident on 27 May 2014 and the other alleging an incident on 25 April 2017. Defendant filed a Form 61 denying Plaintiff's 27 May 2014 claim on the grounds that her action was time-barred because it was not filed within two years of the date of the alleged injury and moved to dismiss.
Both matters were consolidated and heard before the Deputy Commissioner on 15 February 2018. The Deputy Commissioner entered an opinion and award on 13 December 2018, dismissing Plaintiff's 27 May 2014 claim for lack of jurisdiction and denying Plaintiff's 25 April 2017 claim. For the 27 May 2014 claim, the Deputy Commissioner found that Plaintiff did not file a Form 18 or any other claim for compensation with the Commission until 29 May 2017. The Deputy Commissioner further found that Plaintiff last received related medical treatment from Defendants on 3 March 2015, which was paid for by Defendants in April 2015.2 The Deputy Commissioner concluded that Plaintiff neither (1) filed her claim with the Commission within two years of the date of incident nor (2) within two years of the last payment of medical compensation as is required by N.C. Gen. Stat. § 97-24(a). On the 25 April 2017 claim, the Deputy Commissioner concluded that there was no evidence in the record to support injury by accident or specific traumatic incident.
Plaintiff appealed to the Full Commission, and in her Form 44 assigning specific grounds for review, argued that she last received related medical treatment for her 27 May 2014 injury on 25 April 2017 and thus filed her claim within two years of the last payment of medical compensation. The Full Commission entered an opinion and award on 30 July 2019, dismissing Plaintiff's 27 May 2014 claim for lack of jurisdiction and denying Plaintiff's 25 April 2017 claim.3
Plaintiff timely noticed appeal.
Before we reach the merits of Plaintiff's appeal, we first address Defendants’ motion to strike supplements to the printed record on appeal and Plaintiff's motion to amend the record on appeal.
On 18 October 2019, Plaintiff filed under seal two supplements to the record on appeal: a Rule 18(d)(3) supplement which contained the transcripts of the hearing before the Deputy Commissioner, depositions and accompanying exhibits, and a Rule 11(c) supplement which contained the briefs that were filed by the parties before...
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Cunningham v. Goodyear Tire & Rubber Co.
...the Commission erred in concluding that plaintiff's claim was time-barred by N.C.G.S. § 97-24(a). Cunningham v. Goodyear Tire & Rubber Co. , 273 N.C. App. 497, 506–07, 849 S.E.2d 880 (2020). Judge Tyson dissented from the majority opinion, arguing that whether a claim is time-barred by N.C.......
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Moye-Lyons v. N.C. Dep't of Pub. Instruction
..."Whether a party timely filed a claim with the Commission is a question of jurisdiction ...." Cunningham v. Goodyear Tire & Rubber Co. , 273 N.C. App. 497, 503, 849 S.E.2d 880, 885 (2020). As this Court explained in Capps v. Southeastern Cable , the finding of a jurisdictional fact by the C......